                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 29 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL J. DELEGANS,                             No. 13-35184

              Plaintiff - Appellant,             DC No. 2:12 cv-0145 JCC

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
               John C. Coughenour, Senior District Judge, Presiding

                        Argued and Submitted July 10, 2014
                               Seattle, Washington

Before:       TASHIMA and MURGUIA, Circuit Judges, and CARNEY, District
              Judge.**

       Michael Delegans appeals from the judgment of the district court affirming

the denial of his application for Supplemental Security Income and Social Security


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
Disability Insurance benefits. Delegans argues, among other things, that the

Administrative Law Judge (“ALJ”) erred in discrediting (1) Delegans’ testimony

regarding his mental limitations, and (2) certain medical evidence of Delegans’

mental limitations. We agree and remand for further proceedings. We reject

Delegans’ remaining challenges to the ALJ’s weighing of the medical evidence.

      1.     The ALJ failed to provide clear and convincing reasons to discredit

Delegans’ testimony regarding his mental limitations. See Lingenfelter v. Astrue,

504 F.3d 1028, 1036 (9th Cir. 2007). None of the ALJ’s reasons withstands

scrutiny.

      First, Delegans’ statements characterizing his limitations and work history

are largely irrelevant. Delegans has not worked since 2007, therefore three of five

of the statements on which the ALJ relied, “are of limited relevance” because they

involved time periods predating the onset date of Delegans’ disability. See

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008); cf.

Lingenfelter, 504 F.3d at 1039. Delegans’ statement that he “do[es] well at getting

along” with authority figures, has marginal probative value, at best, given that

Delegans directly contradicted the statement in the same questionnaire four months

later. Finally, Delegans’ statements that he shops in stores for forty-five minutes a

day, say little about his ability to get along with coworkers and superiors and to


                                         -2-
tolerate the stresses of a full work day. See Molina v. Astrue, 674 F.3d 1104, 1113

(9th Cir. 2012); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

      Second, the ALJ improperly “isolat[ed] a specific quantum” of positive

mental health evaluations. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)

(internal quotation marks omitted). Those evaluations contrast with numerous

others that reported, for example, “worsening” depression, pressured speech,

frustration, agitation, and thoughts of hurting others, and marked or severe social

limitations. An ALJ may not single out moments of good health to discredit a

claimant, especially in cases involving mental impairments, which often present

episodically. See Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th

Cir. 2011); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); cf. Scott v.

Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011).

      Third, the ALJ’s discussion of Delegans’ “mild” to “moderate” mental

health scores focused predominately on Delegans’ cognitive functioning, not his

social functioning. And, although Delegans scored in the “mild” to “moderate”

range on some social metrics, he was noted on three of four of the psychological

evaluations that the ALJ cited as having “marked” or “severe” limitations in his

ability to “respond appropriately to and tolerate the pressures and expectations of a

normal work setting.” Indeed, only one of the four evaluations reported “mild” to


                                         -3-
“moderate” social functioning along all metrics, and that examination was

administered before the other three, in April 2008. Early evaluations of a

worsening condition are “less probative than later reports.” Magallanes v. Bowen,

881 F.2d 747, 755 (9th Cir. 1989). And one evaluation is less convincing when

three others contradict it.

      In sum, Delegans’ largely irrelevant statements; an isolated quantum of

positive evaluations; “mild” to “moderate” mental health scores along certain

metrics but not social metrics; and one early examination with “mild” to

“moderate” scores along all metrics are not clear and convincing reasons to reject

his testimony. Thus, the ALJ committed legal error in discrediting Delegans’

testimony regarding his mental limitations.

      2.     The ALJ failed to provide specific and legitimate reasons supported

by substantial evidence to discredit Drs. Halley, Kenderdine, and Widlan’s

contradicted opinions of Delegans’ mental limitations. See Orn, 495 F.3d at 632.

      The ALJ’s analysis contains several errors. First, Dr. Halley was one of

Delegans’ treating physicians. As such, her opinion was entitled to special

consideration, including consideration of the factors listed under 20 C.F.R. §

404.1527(c). Orn, 495 F.3d at 631-33. We cannot conclude on this record that the

ALJ considered the 20 C.F.R. § 404.1527 factors, because the ALJ did not discuss


                                         -4-
those factors explicitly and the factors appear to weigh in favor of some deference,

given Dr. Halley’s close and extended treatment of Delegans. Second, the ALJ

discredited parts of Dr. Kenderdine’s opinion because Dr. Kenderdine was “not

qualified to assess the claimant’s physical limitations.” The record, however,

belies the ALJ’s conclusion that Dr. Kenderdine based her opinion on an

assessment of Delegans’ physical limitations. Rather, Dr. Kenderdine evaluated

the associated effect of Delegans’ physical condition on his mental condition. Cf.

Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1996). Third, the ALJ discredited Drs.

Kenderdine and Widlan’s opinions partly because the opinions relied on Delegans’

self-reporting. But we hold today that the ALJ improperly discredited Delegans’

testimony regarding his mental limitations, undermining that basis for discrediting

the medical opinions. Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.

2008); see also Fair, 885 F.2d at 605.

      Lastly, and most fundamentally, the evidence contradicting the three

doctors’ opinions of Delegans’ mental limitations is weak, especially the evidence

of Delegans’ social functioning. That evidence consists of the same evidence,

listed above, to which the ALJ cited to discredit Delegans’ testimony. And it

amounts to a mere “scintilla,” Orn, 495 F.3d at 630 (internal quotation marks

omitted); Delegans’ largely irrelevant statements and only three isolated positive


                                         -5-
evaluations, including the April 2008 evaluation that reported “mild” to

“moderate” social functioning. To credit this evidence over the evidence from two

years of evaluations of a treating physician (Dr. Halley) and two examining

physicians (Drs. Kenderdine and Widlan) requires “isolating a specific quantum of

supporting evidence,” which we may not do. Id. (citation and internal quotations

marks omitted). Because the great weight of the record – with but a scintilla to

contradict it – indicates that Delegans suffers marked or severe social limitations,

and because the ALJ’s analysis contains the three errors discussed previously, we

conclude that the ALJ failed to provide specific and legitimate reasons supported

by substantial evidence to discredit Drs. Halley, Kenderdine, and Widlan’s

opinions of Delegans’ social functioning.

      3.     We are unpersuaded by Delegans’ challenges to the ALJ’s assessment

of the remaining medical evidence.

      First, the ALJ provided clear and convincing reasons to discredit Delegans’

testimony regarding his physical limitations. See Lingenfelter, 504 F.3d at 1036.

The ALJ reasonably inferred that the overwhelming majority of treatment notes

describing relatively regular bowel movements, as well as Dr. Leung’s opinion of

Delegans’ improvement beginning in 2009, contradicted Delegans’ testimony

regarding the severity of his physical limitations. Cf. Batson v. Comm’r of Soc.


                                          -6-
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Rollins v. Massanari, 261 F.3d

853, 857 (9th Cir. 2001). We defer to the ALJ’s reasonable resolution of that

conflict. See Carmickle, 533 F.3d at 1164.

      Second, we hold, for the same reasons, that the ALJ provided clear and

convincing reasons to discredit Drs. Halley and Leung’s opinions, to the extent that

those opinions described severe physical limitations. Those parts of the opinions

are inconsistent with other treatment notes regarding Delegans’ physical

limitations, and with evidence of Delegans’ improvement. Additionally, those

discredited parts of Dr. Leung’s opinion were conclusory, brief, unsupported, and

incongruous. Tommasetti, 533 F.3d at 1041; Batson, 359 F.3d at 1195; Connett v.

Barnhart, 340 F.3d 871, 875 (9th Cir. 2003).

      Third, the ALJ did not err in her evaluation of Delegans’ hospitalization

records. The ALJ considered the hospitalization records during her analysis of the

severity of Delegans’ impairments at step two. And the ALJ did not need to

discuss specifically Delegans’ respiratory failure or the March 2008 hospitalization

because that evidence was not “significant probative evidence” of Delegans’

physical or mental condition in the years following. See Vincent v. Heckler, 739

F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam) (internal quotation marks

omitted). Although the ALJ did not obtain the Harborview hospitalization records,


                                         -7-
the record was not ambiguous or inadequate for review. See Mayes v. Massanari,

276 F.3d 453, 459-60 (9th Cir. 2001).

      Fourth, the ALJ erred by failing to address Sheila Bartlett’s March 2009

mental health evaluation. But the assessment largely duplicated other evidence in

the record, and we are convinced that the error was “inconsequential to the ultimate

nondisability determination in the context of the record as a whole.” Molina, 674

F.3d at 1122 (internal quotation marks omitted).

      Fifth, the ALJ provided a germane reason to discredit Connie Godjikian,

who qualifies as an “other” medical source. 20 C.F.R. § 404.1513(d); see Turner

v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). Godjikian’s opinion

was inconsistent with the majority of treatment notes and with evidence of

improvement in Delegans’ physical condition. See Bayliss v. Barnhart, 427 F.3d

1211, 1218 (9th Cir. 2005).

      4.     Because we hold that the ALJ erred in discrediting significant

evidence of Delegans’ mental limitations, we agree with Delegans that the ALJ

erred at step three, in her residual functional capacity (“RFC”) determination, and

at step five. The ALJ erred at step three in evaluating whether Delegans’

impairments met or equaled listing 12.04(C), because the improperly discredited

evidence of Delegans’ mental impairments might show that “even a minimal


                                         -8-
increase in mental demands or change in the environment would be predicted to

cause [Delegans] to decompensate.” 20. C.F.R., pt. 404, subpt. P, app. 1 §

12.04(C)(2). Similarly, we reject the ALJ’s RFC and step-five determinations

because the determinations failed to account for the improperly discredited

evidence. See Lingenfelter, 504 F.3d at 1040-41. Substantial evidence, then, does

not support them. See id.

      5.     We remand for further proceedings. Although we conclude that the

ALJ improperly discredited Delegans’ testimony regarding his mental limitations

and Drs. Halley, Kenderdine, and Widlan’s opinions of Delegans’ mental

limitations, we cannot conclude on the record before us that, “if the improperly

discredited evidence were credited as true, the ALJ would be required to find

[Delegans] disabled on remand.” Garrison v. Colvin, No. 12-15103, 2014 WL

3397218, at *20 (9th Cir. July 14, 2014). The vocational expert’s (“VE”)

testimony focused predominately on Delegans’ physical limitations. Only one

statement relevantly addressed Delegans’ mental limitations: the expert testified

that Delegans could work if he could have “occasional contact with the public,” but

not if he could have “no contact with the public.” But it is unclear from the record

– including Delegans’ testimony and Drs. Halley, Kenderdine, and Widlan’s

opinions, properly credited – whether Delegans’ mental impairments preclude all


                                         -9-
public contact. It is equally unclear whether Delegans’ mental impairments

preclude simple, repetitive, routine work and occasional, brief contact with

coworkers and superiors. Dr. Halley stated in May 2010 that, “from a mental

health standpoint, I don’t think Mr[.] Delegans could participate.” But the ALJ is

not bound by Dr. Halley’s opinion – much less such an enigmatic opinion – on the

ultimate determination of disability. 20 C.F.R. § 404.1527(d). This case is not

“the unusual case in which it is clear from the record that the claimant is unable to

perform gainful employment in the national economy, even though the VE did not

address the precise work limitations established by the improperly discredited

testimony [and evidence].” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.

2004); see also Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2008). Because the

VE did not meaningfully address the effect of Delegans’ mental limitations, and

because we cannot conclude from the record that the ALJ would be required to find

Delegans disabled on remand, the third credit-as-true requirement is unmet. See

Garrison, 2014 WL 3397218, at *20.

      We, therefore, reverse and remand to the district court with instructions to

remand to the Commissioner for a determination of whether Delegans’ mental

impairments, properly credited, render him disabled.

      REVERSED and REMANDED.


                                         -10-
