                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LENA DRAWN,                                     No.    16-55882

                Plaintiff-Appellant,            D.C. No.
                                                2:15-cv-03787-BRO-KES
 v.

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

                Defendant-Appellee.

                  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.
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


                                          3
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


                                          4
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.


                                           5
       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;


                                          6
(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


                                          7
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


                                           8
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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