Lena Drawn v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LENA DRAWN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-55882
D.C. No.
2:15-cv-03787-BRO-KES
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Argued and Submitted March 7, 2018
Pasadena, California
Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.
Lena Drawn appeals from the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for supplemental
security income under Title XVI of the Social Security Act. We review the district
court’s decision de novo, and the Commissioner’s denial of benefits must be
supported by substantial evidence and a correct application of the law. Valentine v.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). As the parties are
familiar with the facts, we do not recount them here. We reverse and remand.
A. Medical Opinions
In disability benefits cases, “we distinguish among the opinions of three
types of physicians: (1) those who treat the claimant (treating physicians); (2) those
who examine but do not treat the claimant (examining physicians); and (3) those
who neither examine nor treat the claimant (nonexamining physicians).” Garrison
v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation and internal quotation
marks omitted). A treating physician’s opinion is generally entitled to more weight
than that of an examining physician, which is entitled to more weight than that of a
nonexamining physician. Id. “If a treating or examining doctor’s opinion is
contradicted by another doctor’s opinion, an [administrative law judge (‘ALJ’)]
may only reject it by providing specific and legitimate reasons that are supported
by substantial evidence.” Id. (citation omitted). “This is so because, even when
contradicted, a treating or examining physician’s opinion is still owed deference
and will often be entitled to the greatest weight even if it does not meet the test for
controlling weight.” Id. (alteration, citation and internal quotation marks omitted).
Here, the ALJ rejected the opinions of treating psychiatrist Dr. Parsa and
agency examining psychologists Drs. DiGiaro and Martin, which suggested that
Drawn had greater mental limitations than the ALJ’s residual functional capacity

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determination. Because these opinions were contradicted by Dr. Garcia, the ALJ
was required to provide specific and legitimate reasons supported by substantial
evidence for rejecting them. Moreover, as Dr. Garcia was an agency
nonexamining psychiatrist, his opinion “cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an examining physician
or a treating physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996).
1. Treating Psychiatrist Dr. Parsa
Most of the reasons the ALJ provided for rejecting Dr. Parsa’s opinion are
not supported by substantial evidence.
Substantial evidence does not support the ALJ’s reasoning that Drawn “was
stable when she did not abuse substances.” The treatment notes reflect that Drawn
had maintained sobriety and yet was still experiencing symptoms.
Substantial evidence also does not support the ALJ’s reasoning that the
statement in the Ventura County Behavioral Health July 2011 assessment that
Drawn “was capable of completing high school, and obtaining and maintaining a
job” was “inconsistent with a finding of disabling impairment expressed in”
Dr. Parsa’s assessment in January 2014. The ALJ mischaracterized the statement
in the July 2011 assessment and took it out of context. Further, the ALJ failed to
recognize that several years had passed between the July 2011 assessment (when
Drawn was 18 years old) and Dr. Parsa’s assessment in January 2014, and Drawn

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had still not managed to graduate high school or maintain a job.
These errors are not harmless because it is unclear that the ALJ would have
rejected Dr. Parsa’s opinion based solely on its remaining reason that Drawn
“responded to medication.” See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir.
2015) (discussing harmless error analysis). Thus, we remand so that the ALJ can
reassess Dr. Parsa’s opinion.
2. Agency Examining Psychologist Dr. DiGiaro
The ALJ failed to provide specific and legitimate reasons that are supported
by substantial evidence for rejecting the opinion of Dr. DiGiaro.
First, the ALJ reasoned that Drawn had “only recently beg[un] treatment
3 weeks earlier.” But, the ALJ mischaracterized Dr. DiGiaro’s report, which stated
that Drawn, who had a “six-week-old son,” “recently went back to treatment about
three weeks ago.” Moreover, it is unclear why Drawn’s recent return to treatment
undermines Dr. DiGiaro’s assessment.
Second, substantial evidence also does not support the ALJ’s rejecting
Dr. DiGiaro’s opinion for being “based primarily on subjective complaints.” An
ALJ may discount an opinion if it is “based to a large extent on an applicant’s self-
reports and not on clinical evidence, and the ALJ finds the applicant not credible.”
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (citation and internal
quotation marks omitted). However, here, the ALJ offered no support for her

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conclusion that Dr. DiGiaro’s opinion was based primarily on Drawn’s subjective
complaints. Dr. DiGiaro’s report indicates that she also reviewed Drawn’s prior
treatment records, and conducted her own observations and mental status
examination. Moreover, as discussed below, the ALJ’s finding that Drawn was not
credible is unconvincing.
Therefore, the ALJ erred in rejecting Dr. DiGiaro’s opinion.
3. Agency Examining Psychologist Dr. Martin
The ALJ also failed to provide specific and legitimate reasons that are
supported by substantial evidence for rejecting the opinion of Dr. Martin.
First, the ALJ reasoned that Dr. Martin’s assessment was inconsistent with
Drawn’s reported activities including her “efforts to obtain a high school diploma”
and “living alone with a 22-month-old child.” However, when Drawn testified
before the ALJ in 2014, she was 21 years old and, despite continued attempts and
specialized help, she had still not received her high school diploma. With respect
to living alone with her young son, Drawn testified that she had him only half the
week. Drawn explained that her son’s paternal grandmother cared for him the
other half of the week and when Drawn was overwhelmed or stressed out. Drawn
also testified that she did not engage in activities outside of the house with her son.
Thus, substantial evidence does not support the conclusion that Drawn’s reported
activities were inconsistent with Dr. Martin’s assessment.

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Second, contrary to the ALJ’s assertion, Dr. Martin’s conclusion that
Drawn’s “cognitive functioning [was] most likely somewhat higher than”
suggested by her IQ score does not undermine Dr. Martin’s assessment of Drawn’s
functional limitations, which were based on Drawn’s emotional rather than
intellectual capabilities.
Third, the ALJ rejected Dr. Martin’s opinion because Drawn “alleged
hearing voices and several complaints not mentioned in mental treating source
progress notes.” However, Drawn’s hearing voices (such as a little boy named
Timothy) is consistently documented in treatment notes. It is unclear what the ALJ
meant by vaguely stating that Drawn alleged to Dr. Martin “several complaints not
mentioned in mental treating source progress notes.” Because the ALJ failed to
specify the conflicting evidence, it does not satisfy the substantial evidence
standard. See Garrison, 759 F.3d at 1012.
Therefore, the ALJ erred in rejecting Dr. Martin’s opinion.
B. Adverse Credibility Finding
The ALJ failed to provide “specific, clear and convincing reasons” for
rejecting Drawn’s testimony about the severity of her symptoms. Ghanim, 763
F.3d at 1163 (citation omitted) (discussing two-step process for evaluating a
claimant’s testimony). The ALJ gave four reasons for discounting Drawn’s
credibility: (1) her daily activities; (2) her noncompliance with medical advice;

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(3) her treating doctors’ prescription of limited and conservative treatment; and
(4) her inconsistent statements regarding marijuana use. Most of these reasons are
not convincing.
First, the ALJ rejected Drawn’s testimony because her alleged mental health
limitations were belied by her daily activities including (a) attending an
independent studies program in an effort to obtain her high school diploma;
(b) taking care of her 22-month-old toddler, at least half of the time; and (c) taking
care of daily functioning. However, Drawn’s daily activities, as she described
them, are consistent with her testimony about her mental impairments. See id. at
1165; Garrison, 759 F.3d at 1016. Although Drawn had been trying to obtain her
high school diploma, she still had not done so, despite continued attempts over
several years and specialized help. As mentioned, Drawn cared for her toddler
only half the week, and she did not leave the house with him alone.
Second, the ALJ rejected Drawn’s testimony based on her purported
“noncompliance with medical advice.” Specifically, the ALJ noted that Drawn
“did not always take psychiatric medication as prescribed, as she allowed herself to
run out of medication or did not take it because she was pregnant.” While an ALJ
may rely on noncompliance with medical advice, this reason for discounting
Drawn’s credibility is unconvincing. See Orn v. Astrue, 495 F.3d 625, 638 (9th
Cir. 2007). Drawn’s doctors instructed her to stop taking her psychiatric

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medication while pregnant, so by “not tak[ing] it because she was pregnant”
Drawn was actually complying with medical advice. The ALJ’s comment that
Drawn “allowed herself to run out of medication” appears to be a reference to one
occasion when Drawn told her treating doctor that she “couldn’t get” her Abilify
medication for “4 days after it was prescribed” and was crying during that delay.
This single medical record fails to support that Drawn did not take her psychiatric
medication as prescribed because her treating doctor otherwise consistently noted
that Drawn had “Full” or “Good” compliance with medications. Moreover, when
the ALJ told Drawn that the record suggested that she was not compliant with
taking her medication, Drawn disagreed and said that she took her medication
every day. The ALJ did not question Drawn further, or give her an opportunity to
explain her inability to get Abilify for four days.
Third, the ALJ reasoned that “[o]verall, treating physicians have responded
with limited and conservative treatment” which was “inconsistent with, and would
not be expected from treating physicians if they found the level of severity of
symptoms as alleged by” Drawn. However, the ALJ improperly characterized
Drawn’s treatment as “limited and conservative” given that she was prescribed a
number of psychiatric medications. Cf. Parra v. Astrue, 481 F.3d 742, 750-51 (9th
Cir. 2007) (holding that the ALJ did not err in discounting the claimant’s testimony
regarding the severity of his symptoms because his physical ailments were treated

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with the “conservative treatment” of an over-the-counter pain medication (citation
omitted)).
These errors are not harmless because it is unclear that the ALJ would have
rejected Drawn’s testimony based solely on its remaining reason that Drawn made
inconsistent statements regarding marijuana use. See Marsh, 792 F.3d at 1173.
Thus, we remand so that the ALJ can reassess Drawn’s testimony.
Accordingly, we reverse and remand to the district court with instructions to
remand to the Social Security Administration for further proceedings. On remand,
the ALJ should reassess the medical opinions and Drawn’s testimony. Because of
this remand, we do not reach Drawn’s remaining arguments on appeal, including
her argument that the ALJ erred at step five of the sequential evaluation process by
relying on the Medical-Vocational Guidelines rather than the testimony of a
vocational expert. Remand for further proceedings, rather than an award of
benefits, is appropriate because “essential factual issues” must be resolved.
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
REVERSED AND REMANDED.

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