                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         AUG 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SOREN A. STIEHL,                                No.    14-35718

                Plaintiff-Appellant,            D.C. No. 1:13-cv-00237-AA

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                     Ann L. Aiken, District Judge, Presiding

                           Submitted August 25, 2017**


Before:      NELSON, TROTT, and SILVERMAN, Circuit Judges.

      Soren Stiehl appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Stiehl’s application for supplemental

security income under Title XVI of the Social Security Act. Stiehl alleged



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
disability due to various mental and physical impairments. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,

1110 (9th Cir. 2012), and we reverse and remand for further proceedings.

      The Administrative Law Judge (“ALJ”) erred by rejecting the contradicted

opinion of Stiehl’s treating psychologist, Dr. Greene, without providing “specific

and legitimate reasons supported by substantial evidence.” Orn v. Astrue, 495 F.3d

625, 632 (9th Cir. 2007) (internal citations and quotations omitted). The ALJ gave

no weight to the mental RFC report that Dr. Greene completed in June 2011,

reasoning that the mental RFC report was inconsistent with Dr. Greene’s January

2011 report which found “only moderate difficulty in social, occupational, or

school functioning.” The ALJ also explained that Dr. Greene’s mental RFC report

failed to describe the four incidents of decompensation that Dr. Greene claimed

Stiehl suffered. The ALJ’s reasoning is not supported by substantial evidence in

the record as a whole.

      First, Dr. Greene’s January report described results of several

neuropsychological tests, including findings of “extremely low processing speed

index, 0.3%ile,” “extremely low range bilaterally” on a test of fine motor speed,

and “severely impaired executive functioning.” The ALJ’s finding of only

moderate limitations was based entirely on a single GAF score contained in the

January report, which the ALJ improperly relied upon to reject Dr. Greene’s


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mental RFC report. See Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014)

(concluding that the ALJ improperly rejected a treating physician’s opinion based

on isolated notes of improved mood and energy level when the overall diagnostic

picture of the treatment notes was far more severe). Moreover, Dr. Greene’s

October letter, submitted to and considered by the Appeals Council, explained that

the GAF score was assigned for treatment purposes and was not inconsistent with

the conclusions in the mental RFC report. See Brewes v. Comm’r of Soc. Sec.

Admin., 682 F.3d 1157, 1160 (9th Cir. 2012) (holding that when the appeals

council considers new evidence, that evidence becomes part of the record and this

court must consider it “in determining whether the Commissioner’s decision is not

supported by substantial evidence”).

      Second, Dr. Greene’s October letter clarified that her conclusions regarding

episodes of decompensation in the mental RFC report were based on her findings

from the January report regarding PTSD and anxiety. Based on the full record

before this Court, substantial evidence does not support the ALJ’s reasoning that

Dr. Greene failed to describe the source of her conclusions regarding episodes of

decompensation. See Ghanim, 763 F.3d at 1161-62. The Commissioner contends

that the ALJ could reject Dr. Greene’s explanation for episodes of decompensation

because the explanation was based on Stiehl’s unreliable self-reports. This

contention lacks merit because this Court can only review the ALJ’s decision


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based on the reasoning and factual findings offered by the ALJ. See Bray v.

Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009). Because the

ALJ’s finding that Stiehl did not meet listing 12.06 depended on the ALJ’s

improper rejection of Dr. Greene’s mental RFC report, the ALJ should reconsider

this finding on remand if necessary.

      The ALJ erred by giving less than full weight to Stiehl’s testimony regarding

the intensity and limiting effects of his symptoms. Because the ALJ found that

medically determinable impairments could reasonably be expected to cause

Stiehl’s symptoms and no evidence of malingering, the ALJ was required to offer

specific, clear, and convincing reasons for rejecting Stiehl’s testimony. Vasquez v.

Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The ALJ reasoned that “the medical

evidence of record reflects on irregular treatment for the claimant’s mental

impairments [and] no treating provider offered a functional assessment of the

claimant’s mental residual functional capacity.” The ALJ improperly relied on

Stiehl’s lack of treatment to reject his testimony without discussing evidence in the

record showing that Stiehl could not afford treatment and missed medical

appointments due to cognitive issues. See Orn, 495 F.3d at 638 (concluding that an

ALJ must consider evidence in the record explaining lack of treatment before

relying on lack of treatment to discredit claimant testimony).

      We reverse and remand for further administrative proceedings, including


                                          4                                    14-35718
consideration of Dr. Greene’s opinions, Dr. Greene’s October letter submitted to

the Appeals Council, and Stiehl’s testimony regarding the intensity and limiting

effects of his symptoms. See Dominguez v. Colvin, 808 F.3d 403, 408-09 (9th Cir.

2015) (remanding to the ALJ for further proceedings to resolve outstanding issues

in the record).

      REVERSED AND REMANDED.




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