Naomi Marsh v. Carolyn Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAOMI FAWN MARSH, No. 12-17014

Plaintiff-Appellant,

D.C. No.

v. 3:11-cv-02096-

CRB

CAROLYN W. COLVIN, Acting

Commissioner of Social Security

Administration ORDER AND

Defendant-Appellee. SUPERSEDING

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, Senior District Judge, Presiding

Submitted June 8, 2015*

San Francisco, California

Filed July 10, 2015

Before: Barry G. Silverman, Ronald M. Gould,

and Andrew D. Hurwitz, Circuit Judges.

Order;

Opinion by Judge Gould

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 MARSH V. COLVIN

SUMMARY**

Social Security

The panel granted a joint motion for clarification,

withdrew the opinion filed on June 18, 2015, and filed a

superseding opinion vacating the district court’s order

affirming the Social Security Commissioner’s denial of a

claimant’s application for social security disability benefits.

The panel held that harmless error analysis applied to the

case to assess the impact of the administrative law judge’s

failure to mention Dr. David Betat or his clinical progress

notes. The panel further held that the district court did not

offend the principle of SEC v. Chenery Corp., 332 U.S. 194,

196 (1947) (stating that a reviewing court may only affirm

agency action on “the grounds invoked by the agency”), when

it applied harmless error analysis.

The panel also held that the ALJ erred by not mentioning

Dr. Betat or his notes in the written decision. The panel could

not confidently conclude that the error was harmless.

Pursuant to sentence four of 42 U.S.C. § 405(g), the panel

remanded with instructions to the district court to remand to

the ALJ, and specifically to invite the ALJ to comment on Dr.

Betat’s medical opinions and records.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MARSH V. COLVIN 3

COUNSEL

James Hunt Miller, Oakland, California, for Plaintiff-

Appellant.

Melinda L. Haag, United States Attorney, Grace M. Kim,

Regional Chief Counsel, Region IX, and Shea Lita Bond,

Special Assistant United States Attorney, Social Security

Administration, San Francisco, California, for Defendant-

Appellee Carolyn W. Colvin.

ORDER

The parties’ “Joint Motion for Clarification of the Court’s

June 18, 2015 Opinion” is GRANTED. The opinion in the

above-captioned matter, filed on June 18, 2015, is

WITHDRAWN. The superseding opinion shall be filed

concurrently with this order.

OPINION

GOULD, Circuit Judge:

Naomi Marsh appeals the district court’s order affirming

the Social Security Commissioner’s denial of her application

for social security disability benefits. We have jurisdiction

under 28 U.S.C. § 1291, and we vacate and remand with

instructions.

4 MARSH V. COLVIN

I

Marsh applied for disability benefits on November 21,

2006, claiming that she became disabled on October 2, 2001

from a work-related injury to her back, leg, and hip, and from

complications arising from a car wreck. After the agency

denied her application initially and on reconsideration, Marsh

requested a hearing before an Administrative Law Judge

(“ALJ”); the ALJ also denied benefits. The record on which

the ALJ denied Marsh’s application contains, among other

evidence, medical opinions from several doctors, including

clinical progress (SOAP) notes from Dr. David H. Betat,

M.D. Dr. Betat’s SOAP notes track Marsh’s clinical

progress, beginning in September 2003 and ending in

November 2006. Dr. Betat’s SOAP note from January 31,

2006 states, in part:

The patient has chronic trochanteric bursitis to

the point that she is pretty much

nonfunctional. She also finds herself not

being able to concentrate enough to do office

work such as bookkeeping. The patient

appears to be disabled, unfortunately, at a

fairly young age. It seems to be legitimate,

although it is sometimes difficult to tell for

sure.

The ALJ’s decision denying Marsh disability benefits

nowhere mentions Dr. Betat or his SOAP notes.

The ALJ’s denial became the agency’s final decision after

the agency’s Appeals Council denied further review. Marsh

sought judicial review of the agency’s decision, and the

district court affirmed the agency. The district court also

MARSH V. COLVIN 5

denied Marsh’s Rule 59(e) motion for reconsideration, see

Fed. R. Civ. P. 59(e), which challenged the district court’s

application of harmless error to the ALJ’s denial of benefits.

II

We review de novo a district court’s judgment upholding

an agency denial of social security benefits. See Berry v.

Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). We will set

aside a denial of benefits only if the denial is unsupported by

substantial evidence in the administrative record or is based

on legal error. See id.

III

Marsh argues that the law applying harmless error

analysis to social security cases is unclear and that no

published authority of our court has applied harmless error

analysis to a social security case where an ALJ ignores a

treating source’s medical opinion. But we apply harmless

error analysis to social security cases. See McLeod v. Astrue,

640 F.3d 881, 887 (9th Cir. 2011); Molina v. Astrue, 674 F.3d

1104, 1115 (9th Cir. 2012) (“We have long recognized that

harmless error principles apply in the Social Security Act

context.”). The nature of that application is fact-

intensive—“no presumptions operate” and “we must analyze

harmlessness in light of the circumstances of the case.” Id. at

1121 (internal quotation marks omitted). We decline to draw

the distinction that Marsh urges, i.e., one based on the nature

or source of evidence ignored in an ALJ’s opinion. We hold

that harmless error analysis applies in this case to assess the

impact of the ALJ’s failure to even mention Dr. Betat or his

SOAP notes, let alone its failure to give “specific and

legitimate reasons that are supported by substantial evidence”

6 MARSH V. COLVIN

for rejecting a treating source’s medical opinion. Garrison v.

Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

Marsh also argues that the district court exceeded its

authority when it applied harmless error analysis, violating

the rule of Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S.

194, 196 (1947) (stating that a reviewing court may only

affirm agency action on “the grounds invoked by the

agency”). If the district court had applied harmless error in

a way that affirmed the agency on a ground not invoked by

the ALJ, then the district court would have violated the

Chenery principle. See Stout v. Comm’r, Soc. Sec. Admin.,

454 F.3d 1050, 1054 (9th Cir. 2006). But Marsh did not

show that the district court affirmed the agency on a ground

that the ALJ had not invoked in its written decision. The

district court’s conclusion that Dr. Betat’s SOAP notes

“provide minimal additional insight,” as to Marsh’s condition

did not preclude the district court from “[g]iving full effect”

to the ALJ’s reasoning. Molina, 674 F.3d at 1121. The

district court expressly stated that Dr. Betat’s notes “do[] not

contradict the determination of the ALJ.” The district court

did not offend the principle of Chenery.

Marsh further argues that the ALJ erred by not

mentioning Dr. Betat’s SOAP notes in its written decision.

We agree. As we note above, an ALJ may reject a treating

source’s opinion that is contradicted by another doctor’s

opinion only “by providing specific and legitimate reasons

that are supported by substantial evidence.”1 Garrison,

1

We reject the Commissioner’s contentions that Dr. Betat was not a

“treating source” and that his SOAP notes were not “medical opinion.”

The district court correctly applied the Commissioner’s regulation

defining “treating source” to conclude that Dr. Betat was one of Marsh’s

MARSH V. COLVIN 7

759 F.3d at 1012. Here, the ALJ gave no reasons for not

mentioning Dr. Betat or his SOAP notes. That was error.

Because a court must give “specific and legitimate reasons”

for rejecting a treating doctor’s opinions, it follows even

more strongly that an ALJ cannot in its decision totally ignore

a treating doctor and his or her notes, without even

mentioning them. See id. (“Where an ALJ does not explicitly

reject a medical opinion . . . he errs.”).

We next address whether that error was harmless. As we

explained above, harmless error analysis applies in the social

security context, and we find no authority that would lead us

to adopt the rule suggested by Marsh to make distinctions

where a treating source’s medical opinion is not mentioned.

However, our precedents have been cautious about when

harmless error should be found, even though the analytical

framework itself applies broadly. For example, in Stout, we

held that an ALJ’s silent disregard of lay testimony was not

harmless, and we explained that ALJ errors in social security

cases are harmless if they are “inconsequential to the ultimate

nondisability determination” and that “a reviewing court

cannot consider [an] error harmless unless it can confidently

conclude that no reasonable ALJ, when fully crediting the

testimony, could have reached a different disability

determination.” Stout, 454 F.3d at 1055–56. Recently, in

McLeod, we cautioned:

treating sources. See 20 C.F.R. § 404.1502. Dr. Betat’s SOAP notes are

“medical opinion,” because they contain “statements from [Dr. Betat] that

reflect judgments about the nature and severity of [Marsh’s]

impairment(s), including [her] symptoms, diagnosis and prognosis, what

[she] can still do despite her impairment(s), and [her] physical or mental

restrictions.” 20 C.F.R. § 404.1527.

8 MARSH V. COLVIN

[W]here the circumstances of the case show a

substantial likelihood of prejudice, remand is

appropriate so that the agency can decide

whether re-consideration is necessary. By

contrast, where harmlessness is clear and not

a borderline question, remand for

reconsideration is not appropriate.

McLeod, 640 F.3d at 888 (internal quotation marks omitted).

We reject the idea that not mentioning a treating source’s

medical opinion precludes use of harmless error doctrine, but

at the same time, because our law requires “specific and

legitimate reasons that are supported by substantial evidence”

for rejecting a treating source’s medical opinion, that

precedent surely implies that an ALJ must discuss the

relevant views of a treating source. Our precedents do not

quantify the degree of certainty needed to conclude that an

ALJ’s error was harmless, and we would hesitate to suggest

a rigid rule for all such cases. But it does seem that where the

magnitude of an ALJ error is more significant, then the

degree of certainty of harmlessness must also be heightened

before an error can be determined to be harmless. In other

words, the more serious the ALJ’s error, the more difficult it

should be to show the error was harmless.

Here, the district court gave persuasive reasons to

determine harmlessness. But the decision on disability rests

with the ALJ and the Commissioner of the Social Security

Administration in the first instance, not with a district court.

See 20 C.F.R. § 404.1527(d)(1)–(3). In the circumstances of

this case, where the ALJ did not even mention Dr. Betat’s

opinion that Marsh’s chronic bursitis rendered her “pretty

much nonfunctional,” we cannot “confidently conclude” that

MARSH V. COLVIN 9

the error was harmless. See Stout, 454 F.3d at 1056; Bowen

v. Comm’r of Soc. Sec., 478 F.3d 742, 750 (6th Cir. 2007).

We think it is most appropriate to vacate the district court’s

opinion, remand with instructions to the district court to

remand to the ALJ, and specifically to invite the ALJ to

comment on Dr. Betat’s medical opinions and records.2 This

remand is pursuant to sentence four of 42 U.S.C. § 405(g).3

VACATED and REMANDED with INSTRUCTIONS.

Each party shall bear its own costs.

2

We reject Marsh’s argument that the ALJ erred by discounting her

testimony on symptom severity and physical limitations because the ALJ

“held Marsh’s good work history against her.” An ALJ may reject a

claimant’s testimony about symptom severity “only by offering specific,

clear and convincing reasons for doing so.” Lingenfelter v. Astrue,

504 F.3d 1028, 1036 (9th Cir. 2007). And such reasons must be supported

by substantial evidence from the administrative record. See Meier v.

Colvin, 727 F.3d 867, 872 (9th Cir. 2013). Here, the ALJ satisfied this

standard when he found: (1) that Marsh’s treatment was “routine or

conservative”; (2) that gaps existed in Marsh’s treatment regimen; (3) that

Marsh did not take a type and dosage of medication consistent with the

alleged severity of her impairments; (4) that Marsh was able to attend

vocational rehabilitation classes, “indicating activities in excess of the

residual functional capacity”; (5) that Marsh, with assistance, cared for a

six-year-old child; and (6) that Marsh’s “limited work history also detracts

from the credibility of her subjective allegations.” None of these reasons

was impermissible. We reject Marsh’s contention that the ALJ’s reference

to her work history was improper. See 20 C.F.R. § 404.1529(c)(3);

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The ALJ properly

discounted the credibility of Marsh’s testimony about the severity and

intensity of her symptoms, and the physical limitations caused by those

symptoms.

3

Sentence four of 42 U.S.C. § 405(g) states: “The court shall have

power to enter, upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the Commissioner of

Social Security, with or without remanding the cause for a rehearing.”