Monica Pilgreen v. NANCY A. BERRYHILL, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONICA PILGREEN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 17-16535
D.C. No. 2:16-cv-01447-ESW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Eileen S. Willett, Magistrate Judge, Presiding
Argued and Submitted December 17, 2018
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.
Monica Pilgreen appeals the district court’s judgment affirming the denial of
her application for benefits by the Commissioner of Social Security
(“Commissioner”). We assume familiarity with the facts, procedural history, and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
JAN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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issues on appeal. We review the Commissioner’s decision for substantial evidence
and legal error, and the district court’s affirmance de novo. See Luther v.
Berryhill, 891 F.3d 872, 875 (9th Cir. 2018).
At the initial and reconsideration stages, nonexamining state agency
psychologists opined that Pilgreen could “understand, remember and carry out
simple, but not detailed instructions, make decisions, attend and concentrate for
extended periods, accept instructions, and respond appropriately to changes in a
routine work settings [sic].” In contrast, consulting psychologist Betty Eitel,
Ph.D., examined Pilgreen and opined that she “can understand, carry out, and
remember instructions only for one-two steps,” that she “cannot sustain
concentration and persist in work-related activity at a reasonable pace,” and that
she “cannot maintain effective social interaction on a consistent and independent
basis with supervisors, co-workers, and the public, or deal with normal pressures in
a competitive work setting.”
After considering this evidence, the ALJ found that Pilgreen “retains the
ability to understand, remember, and carryout simple instructions and tasks,” and
that she “cannot interact with the public.” He otherwise rejected Dr. Eitel’s
opinion.
The ALJ’s rejection of Dr. Eitel’s opinion was error. “If a treating or
examining doctor’s opinion is contradicted by another doctor's opinion, an ALJ

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may only reject it by providing specific and legitimate reasons that are supported
by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005). The ALJ stated that Dr. Eitel’s conclusions were “not fully supported by
her own findings.” But in fact, the substance of his criticism concerned the extent
of her testing and her interpretation of the results. The ALJ’s assessment of Dr.
Eitel’s methodology and interpretation was not supported by any medical evidence,
and he was not free to substitute his own lay opinion. See Day v. Weinberger, 522
F.2d 1154, 1156 (9th Cir. 1975); cf. Taylor v. Comm’r of Soc. Sec. Admin., 659
F.3d 1228, 1235 (9th Cir. 2011) (“[T]he ALJ's personal observations of Taylor do
not constitute substantial evidence for rejecting any of the opinions of Taylor's
physicians who have found Taylor psychologically impaired.”).
The ALJ further reasoned that Dr. Eitel’s opinion “appears to be based
largely, if not solely, on the claimant’s subjective reports.” However, Dr. Eitel
also performed tests and made her own observations. Her assessment was,
therefore, a typical psychological evaluation. That it relied in part on Pilgreen’s
self-reports is not a valid reason for rejecting it. See Buck v. Berryhill, 869 F.3d
1040, 1049 (9th Cir. 2017) (“[T]he rule allowing an ALJ to reject opinions based
on self-reports does not apply in the same manner to opinions regarding mental
illness.”).

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Dr. Eitel’s opinion did depend in part on the veracity of Pilgreen’s self-
reports, but she found Pilgreen to be “a reliable informant.” The ALJ reached a
contrary conclusion, based on “the lack of corroborating evidence regarding daily
suicidal thoughts and the minimal evidence of treatment for pain or mental
impairment issues even when hospitalized for other issues.” But Dr. Eitel noted
only that Pilgreen had “current suicidal ideation.” There is no evidence that
Pilgreen exaggerated the frequency of her suicidal thoughts to Dr. Eitel.
Regarding the lack of treatment, the record reflects that Pilgreen had seen a mental
health professional, but stopped shortly after her eligibility for financial assistance
came into question. She continued to take a sedative and two antidepressants at the
time of Dr. Eitel’s evaluation. So she was being treated for mental health issues,
although she reported that the treatment was only partially successful.
In sum, we are not satisfied the ALJ’s reasons for rejecting Dr. Eitel’s
opinion were legitimate and supported by substantial evidence. Moreover, the
record regarding Pilgreen’s mental impairments has been fully developed; there is
no need to remand to resolve the conflict between Dr. Eitel’s opinion and those of
the state agency psychologists because “[t]he opinion of a nonexamining
physician cannot by itself constitute substantial evidence that justifies the rejection
of the opinion [of] an examining physician.” Buck, 869 F.3d at 1050 (quoting
Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)). We therefore credit Dr. Eitel’s

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opinion as true. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100
(9th Cir. 2014) (citing Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396
(9th Cir. 1988)). Since that opinion “leaves not the slightest uncertainty as to the
outcome of the proceeding,” we exercise our discretion to remand with instructions
to remand to the Commissioner for an immediate award of benefits. Id. (internal
quotation marks, citations and alterations omitted). That disposition makes it
unnecessary to address Pilgreen’s remaining arguments.
REVERSED and REMANDED with instructions.

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