Myles Brock v. Nancy Berryhill

NOT FOR PUBLICATION FILED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.