Raymond Greppi Iii v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RAYMOND GREPPI III,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-16030
D.C. No. 3:18-cv-05576-TSH
MEMORANDUM
*
Appeal from the United States District Court
for the Northern District of California
Hon. Thomas Hixson, Magistrate Judge, Presiding
Argued and Submitted June 10, 2020
*
San Francisco, California
Before: THOMAS, Chief Judge, and SCHROEDER and BUMATAY, Circuit
Judges.
Raymond Greppi appeals the district court’s order affirming the denial of his
application for disability insurance benefits by the Administrative Law Judge
(ALJ). We have jurisdiction under 28 U.S.C. § 1291, and we reverse. Because the
FILED
JUL 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

parties are familiar with the facts of this case we need not recount them here. We
review the district court’s order affirming the ALJ’s denial of benefits de novo.
Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). We will affirm the
ALJ’s decisions that were supported by substantial evidence and not based on an
erroneous application of the law, Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th
Cir. 2005), and we may only reverse the ALJ’s decision where the error was not
harmless, see Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Here, the
ALJ disregarded relevant, consistent medical evidence, which means the ALJ’s
decision was not supported by substantial evidence; this error was not harmless, so
we reverse.
The ALJ erred in rejecting the opinion of Dr. Montgomery, Greppi’s treating
physician. The ALJ purported to identify specific ways in which Dr.
Montgomery’s opinion was inconsistent with material aspects of his own treatment
notes. However, “[t]he primary function of medical records is to promote
communication and recordkeeping for health care personnel—not to provide
evidence for a disability determination.” Orn v. Astrue, 495 F.3d 625, 634 (9th
Cir. 2007). Here, the “inconsistencies” in Dr. Montgomery’s treatment notes were
founded on recordings of Greppi’s self-described symptoms, while there was no
inconsistency between Dr. Montgomery’s own observations and his opinion. See
2

Molina, 674 F.3d at 1111 (“In order to reject the testimony of a medically
acceptable treating source, the ALJ must provide specific, legitimate reasons based
on substantial evidence in the record.”). Additionally, Dr. Montgomery’s
treatment notes repeatedly noted Greppi’s inability to work with others, which is
consistent with his opinion that Greppi was markedly impaired in his ability to
interact with others.
Thus, the ALJ should have afforded Dr. Montgomery’s opinion more weight
because he was a treating physician and his opinion was consistent with other
medical evidence in the record. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995) (a treating physician’s opinion is typically given more weight than the
opinion of an examining or non-examining physician); see also Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“The opinion of a
treating physician is given deference because ‘he is employed to cure and has a
greater opportunity to know and observe the patient as an individual.’”) (citation
omitted).
Additionally, the ALJ erred in not affording more weight to the opinion of
Dr. Abraham, one of Greppi’s examining physicians. See Lester, 81 F.3d at 830
(the ALJ typically gives greater weight to the opinion of an examining physician
than to the opinion of a nonexamining physician). To reject the opinion of an
3

examining physician, the ALJ must provide “specific and legitimate reasons that
are supported by substantial evidence.” See Bayliss, 427 F.3d at 1217. Here, the
ALJ rejected Dr. Abraham’s opinion for the same reasons that he rejected Dr.
Montgomery’s opinion. Because the reasons for rejecting Dr. Montgomery’s
opinion were erroneous, those reasons are also erroneous as applied to Dr.
Abraham’s opinion. In addition, Dr. Abraham’s conclusions were independent
from Dr. Montgomery’s; therefore, the ALJ should have assessed those opinions
separately and provided “specific and legitimate reasons” for rejecting each
opinion, rather than simply referring to the reasons given for rejecting Dr.
Montgomery’s opinion as justification for rejecting Dr. Abraham’s opinion.
The errors were not harmless because this error was not “inconsequential to
the ultimate nondisability determination.” Molina, 674 F.3d at 1115. Therefore,
we reverse the district court’s conclusion that the ALJ did not err in weighing the
medical evidence. We remand to the district court with instructions to remand to
the agency on the remaining issues after properly weighing the medical evidence.
Given this result, we need not—and do not—reach any other issues urged by the
parties.
REVERSED and REMANDED.
4

1

Raymond Greppi III v. Saul, No. 19-16030
BUMATAY, Circuit Judge, dissenting:
We are a court of appeals, not a court of first instance. Where the
Administrative Law Judge’s decision is supported by substantial evidence, our
duty is to affirm—even if we think the evidence could be interpreted differently.
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive[. ]”); Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
In finding that the ALJ wrongly rejected the opinions of Greppi’s examining
and treating physicians, the majority commits a two-fold error. First, the majority
takes a turn as the trier of fact, ignoring the applicable standard of review in the
process. Then, without skipping a beat, it blows past the substantial evidence in
the record supporting the ALJ’s reasoning, and overturns its findings.
Prior to this decision, we have explained that where “the evidence can
support either outcome, the court may not substitute its judgment for that of the
ALJ.” Tackett, 180 F.3d at 1098; see also Molina v. Astrue, 674 F.3d 1104, 1111
(9th Cir. 2012) (“Even when the evidence is susceptible to more than one rational
interpretation, we must uphold the ALJ’s findings if they are supported by
inferences reasonably drawn from the record.”). Purporting to apply this standard,
the majority heads off in search of any evidence to overturn the ALJ’s finding, and
FILED

JUL 2 2020

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

2

unsurprisingly, finds it. The ALJ, in discrediting Greppi’s examining and treating
physicians, pointed to specific statements in their treatment notes which conflicted
with their opinions. The majority, in turn, highlights a few other treatment notes
suggesting that the physicians’ evidence was not so self-contradictory.
1
But this is
a classic example of evidence being “susceptible to more than one rational
interpretation.” Molina, 674 F.3d at 1111. And in such cases, the ALJ only has to
clear the bar, and a low one at that. See Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995) (“Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”). So “disregard[ing] relevant,
consistent medical evidence”—which happens often as ALJs balance competing
facts—is no basis for reversal so long as substantial evidence supports doing so.
Second, and more problematically, the majority ignores the rest of the
record in reversing the ALJ’s determination. The majority focuses solely on the
ALJ’s finding that the examining and treating physicians’ opinions were internally
inconsistent, ignoring the fact that the ALJ is entitled to weigh medical opinion
evidence in light of the record as a whole. See 20 C.F.R. § 404.1527(c)(3)–(4). In

1
And even some of the “consistent” evidence pointed to by the majority is
conflicting. For example, despite the majority’s insistence that Dr. Montgomery
found Greppi’s concentration “markedly impaired,” the underlying treatment notes
merely state that his concentration was “impaired”—not “markedly” impaired.

3

so doing, the majority co nveniently ignores that Greppi’s favorable medical
opinion evidence conflicted with, at a minimum, several of his own statements
regarding his disability, the “most recent consultative evaluation’s IQ and other
intellectual functioning scores,” and the evidence of the other non-examining
physicians. See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1041–42 (9th Cir.
2008) (affirming where the ALJ’s decision to discredit a treating physician’s
opinion was “supported by the entire record.”).
Finally, it’s worth pointing out one curious effect of the majority’s holding:
on remand, the ALJ must give more weight to Dr. Abraham’s opinion that
Greppi’s impairments could reflect his “continuous use” of controlled substances.
An opinion, incidentally, confirmed by Greppi’s own testimony. Perhaps it bears
noting that the Social Security Act was not designed as a backstop for harms
resulting from substance abuse. See 42 U.S.C. § 423(d)(2)(C) (“An individual
shall not be considered to be disabled for purposes of this subchapter if alcoholism
or drug addiction would . . . be a contributing factor material to the
Commissioner’s determination that the individual is disabled.”); Parra v. Astrue,
481 F.3d 742, 744 (9th Cir. 2007).
I respectfully dissent.