NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYLES BROCK, No. 16-35691
Plaintiff-Appellant, D.C. No. 3:15-cv-01021-KI
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted September 1, 2017**
Before: D.W. NELSON, TROTT, and SILVERMAN, Circuit Judges.
Myles Brock appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social
*
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).
Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we reverse and
remand.
The administrative law judge (“ALJ”) erred in evaluating the opinion of
Jennifer Reffel, a treating nurse practitioner who concluded that Brock suffered
dramatic mood swings even when sober. The Commissioner properly concedes
that two of the reasons provided by the ALJ were not valid, germane reasons for
according “little weight” to the opinion of Reffel, an “other source” of medical
evidence. See Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (per curiam)
(holding that ALJ may discount opinion of nurse practitioner if ALJ gives reasons
germane to that practitioner). The ALJ’s other two reasons—that Reffel’s opinion
was contradicted by the opinion of an examining doctor and was inconsistent with
medical records showing relative mood stability when Brock was not drinking and
was medication-compliant—also were insufficient in light of Reffel’s treating
relationship with the claimant. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th
Cir. 2014) (holding that mental impairments must be considered in the context of
the claimant’s entire diagnostic picture); Garrison v. Colvin, 759 F.3d 995, 1017
(9th Cir. 2014) (explaining that “[c]ycles of improvement and debilitating
symptoms are a common occurrence [in mental illness], and it is error for an ALJ
to pick out a few isolated instances of improvement over a period of months or
2
years and to treat them as a basis for concluding a claimant is capable of
working”).
In analyzing whether Brock’s alcoholism was a contributing factor material
to his disability, as required by 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J)
(providing that claimant is not considered disabled if alcoholism or drug addiction
would be a material contributing factor), the ALJ erred by failing first to consider
whether Brock was disabled by the combination of his impairments of bipolar
disorder and alcohol addiction before finding that his bipolar disorder standing
alone was not disabling. See Social Security Ruling 13-2p; Bustamante v.
Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001) (holding that ALJ erred by
determining that claimant’s mental impairments were the product of his alcohol
abuse, and not an independently severe or disabling impairment, prior to making a
determination whether claimant was disabled under the five-step inquiry).
The ALJ’s errors were not harmless because we cannot say that they were
inconsequential to the ALJ’s finding that Brock’s bipolar disorder alone was not
disabling. See Brown-Hunter, 806 F.3d at 492 (holding that error is harmless if it
is inconsequential to the ultimate nondisability determination). We therefore
reverse the district court’s judgment and remand with instructions to remand to the
agency for further proceedings. See Treichler v. Comm’r of Soc. Sec. Admin., 775
F.3d 1090, 1100-02 (9th Cir. 2014).
3
REVERSED and REMANDED.
4
FILED
Brock v. Berryhill, No. 16-35691
SEP 06 2017
TROTT, Circuit Judge, dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I find the ALJ’s Decision to be thorough, thoughtful, discerning, and
professional. Everything in it is supported by substantial evidence, logic, and the
law. I agree with the Acting Commissioner’s brief: “Remanding on this [alleged]
error strictly for the ALJ to conduct the formal two-step DAA process could only
change the reason for his denial of benefits, not the outcome of the case.” There
was no error, but if there was, Judge King was correct: it was harmless. Moreover
upgrading nurse practitioner Reffel’s opinion will not overcome the evidence that
contradicts it. Thus, I respectfully dissent.