Gavin Buck v. Nancy Berryhill
869 F.3d 1040
| 9th Cir. | 2017Background
- Gavin Buck applied for SSDI and SSI claiming disabling mental illnesses (ADHD, bipolar disorder, antisocial personality disorder) with onset March 1, 2008; he has an intermittent work history and criminal record.
- Multiple examiners and treating sources (Dr. Kenderdine, Dr. Schechter, Valley Cities, Dr. Fisher, Richard Hockett) assessed functional limits; opinions varied from moderate to marked limitations.
- Buck’s claim was heard twice by the same ALJ after a district-court remand; medical experts (Dr. Lewy, Dr. Toews) and a vocational expert (VE) testified at hearings.
- The ALJ found Buck not disabled: pre-gunshot RFC allowed all exertional levels with simple, routine tasks and incidental contact; post-gunshot RFC limited to light work; ALJ relied on VE to identify jobs available nationally and regionally.
- The Ninth Circuit reviewed de novo and reversed/remanded, identifying legal errors related to (1) rejection of an examining psychiatrist’s opinion, (2) treatment of other medical opinions, and (3) unaddressed conflicts in VE testimony about job availability and DOT reasoning levels.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ properly considered all severe and non-severe impairments at step two and in RFC | Buck: ALJ failed to incorporate all severe impairments and mislabelled antisocial PD | Commissioner: Step two is a threshold; RFC considered all impairments; shorthand label harmless | Court: No reversible error — step two is a threshold and impairments were considered; labeling harmless |
| Whether ALJ properly rejected Dr. Kenderdine’s opinion because it relied on Buck’s self-report | Buck: Psychiatric opinions necessarily rely on self-report; that alone is not a valid reason to reject an examining opinion | Commissioner: ALJ discounted Kenderdine for reliance on self-report and Beck score concerns via nonexamining expert | Court: Rejection improper — psychiatric evaluations cannot be rejected solely for using patient self-report; nonexamining Dr. Toews’ testimony insufficient to outweigh examining opinion |
| Whether ALJ permissibly relied on a nonexamining expert (Dr. Toews) contradicting an examining opinion | Buck: Nonexamining opinion cannot by itself constitute substantial evidence to reject examining opinion | Commissioner: Relied on Dr. Toews’ interpretation of Beck scores | Court: Agreed with Buck — nonexamining testimony cannot alone justify rejecting an examining physician; conflicting nonexamining opinions further weaken Toews’ basis |
| Whether ALJ properly rejected Dr. Schechter and treated Dr. Fisher’s form | Buck: Schechter’s opinion improperly discounted; ALJ ignored Fisher section I | Commissioner: Prior district-court remand affirmed those treatments; ALJ’s reasons supported | Court: Schechter could be rejected due to internal inconsistencies (GAF vs severe narrative); ALJ properly relied on Fisher’s narrative per SSA guidance |
| Whether VE testimony supported step five (job numbers and DOT reasoning levels) | Buck: VE’s national/regional job numbers conflicted with evidence; some jobs had DOT Reasoning Level 3 inconsistent with RFC | Commissioner: VE testimony is generally reliable and need not be independently verified absent contrary evidence | Court: Remand required — ALJ erred by relying on three DOT Reasoning Level 3 jobs (inconsistent with RFC) and failed to resolve striking discrepancies in job numbers; these conflicts must be addressed on remand |
Key Cases Cited
- Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (standard of review and harmless error rule in social security cases)
- Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999) (limits on rejecting physician opinions based on claimant self-report)
- Lester v. Chater, 81 F.3d 821 (9th Cir. 1996) (examining physician opinions entitled to greater weight than nonexamining)
- Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (VE testimony is a permissible source of job information)
- Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007) (ALJ must reconcile VE testimony with DOT when conflicts exist)
- Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015) (limitation to simple, routine, repetitive work conflicts with DOT Reasoning Level 3)
- Bowen v. Yuckert, 482 U.S. 137 (U.S. Supreme Court 1987) (step two as a threshold screening requirement)
- Blankenship v. Bowen, 874 F.2d 1116 (6th Cir. 1989) (psychiatric reports should not be rejected for relative imprecision of methodology)
- Poulin v. Bowen, 817 F.2d 865 (D.C. Cir. 1987) (psychiatric diagnosis necessarily involves patient report and clinician observation)
- Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001 (9th Cir. 2006) (POMS persuasive but not binding guidance)