Ronnie Milton Liburd v. Commissioner of Social Security Administration

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONNIE MILTON LIBURD,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant-Appellee.
No. 21-35435
D.C. No. 3:20-cv-05443-DWC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
David W. Christel, Magistrate Judge, Presiding
Submitted May 19, 2022**
Seattle, Washington
Before: WARDLAW, GOULD, and BENNETT, Circuit Judges.
Ronnie Liburd appeals from the district court’s order affirming the
administrative law judge’s (ALJ) denial of supplemental security income disability
benefits. Liburd’s only challenge is to the ALJ’s rejection of Dr. Dan Neims’s
* 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).
FILED
MAY 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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opinion that Liburd had “marked,” or very significant, limitations in performing
several basic work activities. We have jurisdiction under 42 U.S.C. § 405(g), and
we reverse and remand.
We review the district court’s order affirming the denial of benefits de novo.
Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). We review an ALJ’s
decision “to discredit any medical opinion” for substantial evidence. Woods v.
Kijakazi, No. 21-35458, 2022 WL 1195334, at *1 (9th Cir. Apr. 22, 2022).1
“Substantial evidence means more than a mere scintilla, but less than a
preponderance. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Desrosiers v. Sec’y of Health & Hum.
Servs., 846 F.2d 573, 576 (9th Cir. 1988) (cleaned up).
The ALJ rejected Dr. Neims’s marked ratings for two reasons: (1) Dr. Neims
“provided no support for the boxes checked,” and (2) “the ratings are not
consistent with any portion of [Dr. Neims’s] narrative report or clinical findings.”
(emphasis added). Both reasons are unsupported by the record. Parts of Dr.
Neims’s opinion provide some support for the marked ratings and are consistent
1 Given our recent decision in Woods, Liburd’s argument that the ALJ needed to
provide specific and legitimate reasons to reject Dr. Neims’s medical opinion is
unavailing. See Woods, 2022 WL 1195334, at *1 (“As a threshold matter, we must
decide whether recent changes to the Social Security Administration’s regulations
displace our longstanding case law requiring an ALJ to provide ‘specific and
legitimate’ reasons for rejecting an examining doctor’s opinion. We conclude that
they do.”).

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with them. For example, Dr. Neims noted that Liburd was “[d]ifficult to redirect”
and “struggle[d] with directly answering questions posed of him.” Liburd’s speech
was “rambling” and “tangential.” Dr. Neims also indicated that Liburd suffered
from “chronic pain,” which could be a “[p]otential impediment[] to” finding a job.
These observations offer some support for and are consistent with the marked
ratings, as the behaviors and symptoms could impair Liburd’s ability to
communicate, perform effectively, and maintain appropriate behavior in a work
setting.
The Commissioner argues that the ALJ nonetheless properly rejected the
marked ratings because other parts of Dr. Neims’s opinion undermined the marked
ratings and the marked ratings conflicted with other evidence in the record. But
the ALJ did not reject the marked ratings for those reasons, and thus we cannot
rely on them. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
In sum, the ALJ’s decision to discount Dr. Neims’s opinion is not supported
by substantial evidence because all the ALJ’s reasons for rejecting Dr. Neims’s
opinion are contradicted by the record. We cannot find the ALJ’s error was
harmless to the ultimate nondisability determination, as it is unclear how much
weight should have been given to Dr. Neims’s marked ratings. Finally, we remand
for further administrative proceedings because there is significant conflicting

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evidence between Dr. Neims’s opinion and the other medical evidence. See
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
REVERSED and REMANDED.

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