William Q. Diesta v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM Q. DIESTA,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 17-15057
D.C. No.
1:15-cv-00465-HG-KSC
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Argued and Submitted October 10, 2018*
University of Hawaii Manoa
Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.
William Diesta appeals the district court’s decision upholding the Social
Security Administration Commissioner’s denial of his applications for disability
insurance and supplemental security income benefits. We reverse.
1. The ALJ erred when assessing the uncontradicted opinions of Dr. Dennis
Donovan, a consultative examiner who saw Diesta on behalf of the Social Security
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Administration. See 20 C.F.R. § 404.1519a(a). Testing administered by Dr.
Donovan showed that Diesta had an I.Q. of 77 and performed at the first percentile
on a number of supplemental memory tasks. Dr. Donovan also stated that Diesta
had a Global Assessment of Functioning (GAF) score of 45, which indicates a
level of functioning below what is needed to engage in substantial gainful activity.
See Wellington v. Berryhill, 878 F.3d 867, 871 n.1 (9th Cir. 2017); Pate-Fires v.
Astrue, 564 F.3d 935, 944 (8th Cir. 2009); see also Garrison v. Colvin, 759 F.3d
995, 1002 n.4 (9th Cir. 2014); Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed., text rev. 2000) (noting that a GAF score
between 41 and 50 reflects “serious symptoms” or a “serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job)”). After
the examination, Dr. Donovan opined that Diesta could not handle his own
financial affairs; could not maintain normal persistence, pace, and concentration in
the workplace; and would not necessarily be able to remember simple oral
instructions. The Social Security personnel who initially reviewed Diesta’s claim,
and reconsidered Diesta’s claim after it was first denied, stated that Dr. Donovan’s
opinion indicated that Diesta was not capable of performing substantial gainful
activity.

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“To reject the uncontradicted opinion of a treating or examining doctor, an
ALJ must state clear and convincing reasons that are supported by substantial
evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).
The ALJ did not state clear and convincing reasons for rejecting Dr.
Donovan’s opinions.
First, the ALJ did not provide any explanation for why she rejected Dr.
Donovan’s assessment of Diesta’s global functioning. Second, the ALJ provided
no explanation for rejecting Dr. Donovan’s opinion that Diesta could understand
simple instructions, but “may not necessarily remember them later on.” Third,
regarding Diesta’s ability to manage his finances, the ALJ stated: “[I]n light of
[Diesta’s] relatively full activities of daily living, including his ability to handle his
finances, I cannot accept Dr. Donovan’s opinion that the claimant cannot handle
his finances.” But this opinion did not go to Diesta’s ability to perform substantial
gainful activity. Instead, a claimant’s ability to handle his own finances is relevant
to whether the Social Security Administration could assign him a representative
payee to manage benefit payments. 20 C.F.R. § 404.2001(b). Also, although
Diesta checked off two boxes indicating that he could “[c]ount change” and “[p]ay
bills,” Diesta is homeless, does not have a bank account, and nothing in the record
indicates that he pays any bills outside of purchasing food using an electronic
benefits transfer card.

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The ALJ also disagreed with Dr. Donovan’s opinion that Diesta could not
keep up with the pace of low-stress employment. But that disagreement reflected a
fundamental misunderstanding of Dr. Donovan’s opinion. After opining in a
separately numbered paragraph that “I don’t think that [Diesta] can maintain
normal pace, persistence, and concentration in the workplace,” Dr. Donovan went
on separately – after repeating his opinion about Diesta’s ability to maintain work
pace – to say that he “suspect[ed]” that Diesta would “walk away if something
upset[] him” or he was “given expectations beyond his capacities.” In her opinion,
the ALJ incorrectly stated that Dr. Donovan said that Diesta could not “handle the
pace of work because he walks away from his work when things are bad”
(emphasis added). The ALJ then discussed her disagreement on this point with Dr.
Donovan at some length, noting that Diesta had never “walked away from a job
when things are bad, . . . [and] there is no evidence the claimant’s alleged tendency
to walk away arose after he stopped working.” But the ALJ provided no
explanation at all as to why she discredited Dr. Donovan’s separate conclusions
regarding Diesta’s inability to maintain an acceptable “pace, persistence, and
concentration” in the workplace, which was the critical conclusion affecting
Diesta’s ability to hold a job.
2. Remand for benefits is appropriate “where (1) the record has been fully
developed and further administrative proceedings would serve no useful purpose;

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(2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand.” Trevizo, 871 F.3d at 682–83 (internal quotation
marks and citations omitted). All three of these criteria are met here.
First, further proceedings would not serve any useful purpose here. There is
no indication that the record below was incomplete. And other medical evidence
in the record corroborates Dr. Donovan’s conclusions. For example, a mental
status examination performed in 2012 documents memory testing results consistent
with significant memory recall problems.
Second, as discussed above, the ALJ discredited Dr. Donovan’s testimony
without providing the requisite clear and convincing reasons.
Finally, if Dr. Donovan’s opinions are credited as true, the Commissioner
would be required to find that Diesta is not capable of engaging in substantial
gainful activity. The medical consultants who reviewed Diesta’s record stated that
Diesta would not be able to work if Dr. Donovan’s opinion was accurate. And, as
stated above, Dr. Donovan opined that Diesta had a GAF score of 45, which is
below what is needed to engage in substantial gainful activity. Moreover, the
limitations described by Dr. Donovan would clearly prevent Diesta from
performing any of the three jobs that the ALJ believed Diesta could perform. For

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example, Dr. Donovan found that Diesta had an I.Q. that “exceeds only 6 percent
of his same age peers,” but all three jobs require a general learning ability and
verbal aptitude above the bottom tenth percentile. See Dictionary of Occupational
Titles 209.587-034, Marker; Dictionary of Occupational Titles 559.687-074,
Inspector and Hand Packager; Dictionary of Occupational Titles 706.684-022,
Assembler, Small Products I.
Thus, the judgment of the district court is reversed and remanded with
instructions to remand to the ALJ for the calculation and award of benefits.
REVERSED and REMANDED.

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Diesta v. Berryhill, Case No. 17-15057
Rawlinson, Circuit Judge, dissenting:
I respectfully dissent. In my view, substantial evidence supports the relative
weight the Administrative Law Judge (ALJ) afforded the various medical opinions.
See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (noting that the ALJ is
“responsible for . . . resolving conflicts in medical testimony,” and reviewing for
substantial evidence). The ALJ’s decision must be upheld if “the evidence is
susceptible to more than one rational interpretation.” Id. at 1039-40.
There is a hierarchy of opinions among physicians in the social security
arena. The opinion of the treating physician is entitled to the highest weight. The
opinion of an examining physician is entitled to lesser weight. See Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1996), as amended.
To reject the contradicted opinion of a treating physician or an examining
physician, the ALJ must provide “specific and legitimate reasons.” Id. at 830-31
(citations omitted).
In this case, the ALJ gave “significant weight” to Dr. Donovan’s opinion,
with the exception of the conclusions that the claimant could not handle his
finances or the pace of work.
Dr. Donovan’s pertinent opinions were expressed as follows:
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1

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1. “I don’t think [claimant] can handle his own
financial affairs . . .
. . .
3. I don’t think [claimant] can maintain normal pace,
persistence and concentration in the workplace. . . .
4. [Claimant] states that he just walks away if
something upsets him. I suspect this is what would
happen in a workplace when given expectations
beyond his capacities.”1
The ALJ gave the following specific and legitimate reasons, supported by
the record evidence, for rejecting Dr. Donovan’s opinions: 1) the opinion that
claimant could not handle his financial affairs was inconsistent with claimant’s
testimony that he was able to pay bills, shop for necessities, count change, shop in
stores and take public transportation; and 2) the opinion that the doctor
“suspect[ed]” that claimant would “walk away if something upsets him” was
inconsistent with claimant’s demonstrated ability to “get along with authority
figures, maintain friendships,” interact appropriately with clinic staff, and the lack
1 The majority also relies upon Dr. Donovan’s reference to claimant’s Global
Assessment of Functioning (GAF) score. See Majority Disposition, p.4. However,
as neither Dr. Donovan nor the ALJ cited the GAF score in their respective
discussions of claimant’s residual functional capacity, this reliance is misplaced.
See Bray v. Commissioner, 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing
principles of administrative law require us to review the ALJ’s decision based on
the reasoning and factual findings offered by the ALJ . . .”).
2

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of evidence in the record that claimant’s work history included any instances of
claimant walking away when something upset him.
Because Dr. Donovan’s opinion on claimant’s inability to maintain normal
pace, persistence, and concentration in the workplace is inconsistent with the
opinions of claimant’s treating physicians, and because the ALJ provided specific
and legitimate reasons supported by the record for rejecting Dr. Donovan’s
divergent opinion, the decision of the ALJ was supported by substantial evidence
and should be affirmed. See Valentine v. Commissioner, 574 F.3d 685, 692-93
(9th Cir. 2009).
I respectfully dissent.
3

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