NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIONNE MARIE NADON, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 19-35712 

D.C. No. 9:18-cv-00140-JCL 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Jeremiah C. Lynch, Magistrate Judge, Presiding

Argued and Submitted March 8, 2021

San Francisco, California

Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.

Dionne Nadon appeals from the district court’s judgment affirming the Social 

Security Administration (SSA)’s denial of her application for Title II disability 

insurance benefits, as well as her application for Title XVI supplemental security 

income. The parties are familiar with the facts, so we do not recount them here 

except as necessary to provide context for our ruling. We have jurisdiction pursuant 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 30 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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to 28 U.S.C. § 1291. We review the district court’s judgment affirming an ALJ’s 

denial of benefits de novo. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

We VACATE the district court’s affirmance of the denial and REMAND Nadon’s 

application to the ALJ for proper consideration of Nadon’s post-traumatic stress 

disorder (PTSD) diagnosis and Dr. Newman’s treatment notes.

Nadon applied for Title II period disability insurance benefits in April 2015, 

and she applied for Title XVI supplemental security income on May 31, 2016. She

has alleged her disability began on March 27, 2015. Her alleged disability stems 

from a bulging disc in her back, fibromyalgia, other chronic pain, anxiety, 

depression, and PTSD. The claims were initially denied in August 2015, and they 

were denied again upon reconsideration in January 2016. The basis for the denials 

was the determination that Nadon’s conditions are not severe and do not cause 

marked limitations. The ALJ held a video hearing in November 2016, and Nadon 

was represented by counsel. 

The record submitted to the ALJ included treatment notes by psychiatrist Dr. 

Michael Newman, which reflect two sessions he had with Nadon in May 2016 and 

July 2016. Dr. Newman diagnosed Nadon with depression and PTSD after the May 

2016 session. Dr. Newman elaborated in his notes after their July 2016 session that 

Nadon suffers from major depression, “severe and recurrent,” and PTSD. Dr. 

Newman wrote that Nadon “reports that she is experiencing emotional and physical 
3 

pain,” “[s]he is sleeping poorly,” and “[s]he is isolating.” He concluded that Nadon 

“has thoughts of suicide, but has no plan,” and that “[s]he keeps herself alive because 

of her children.”

In January 2017, the ALJ denied Nadon’s application. The ALJ conducted 

the five-step evaluation process, pursuant to 20 C.F.R. §§ 404.1520(a) and 

416.920(a), and determined that Nadon was not disabled at steps four and five. The 

ALJ ultimately held that Nadon is not entitled to benefits because she has sufficient 

residual functional capacity to return to her past relevant work. The ALJ found that 

Nadon’s “medically determinable mental impairments of depression and anxiety, 

considered singly and in combination, do not cause more than minimal limitation in 

the claimant’s ability to perform basic mental work activities and are therefore 

nonsevere.” The ALJ did not discuss Nadon’s PTSD diagnosis or Dr. Newman’s 

treatment notes relating to Nadon’s PTSD. 

The ALJ cited Dr. Newman’s notes only once to support her finding that “the 

claimant demonstrated good concentration, and good insight and judgment during 

other examinations.” The ALJ referenced PTSD only in the context of Nadon’s 

subjective complaints. Instead, the ALJ relied, in part, on the opinions of two 

nonexamining state agency consultants: Mary Bogumill, Ph.D., and Lisa Renner, 

M.D. Their respective conclusions were that Nadon’s “mental conditions were 

nonsevere.” Both opinions address “12.04-Affective Disorders” and “12.06-
4 

Anxiety-Related Disorders.” Neither opinion discussed the PTSD diagnosis nor the 

resulting limitations. PTSD is included under section 12.15 relating to “Traumaand stress-related disorders.”

The Social Security Appeals Council denied Nadon’s appeal in March 2018. 

In her appeal submission to the Appeals Council, Nadon included a mental 

assessment by Dr. Newman dated March 27, 2017. In the 2017 mental assessment, 

Dr. Newman wrote that he had started seeing Nadon on May 23, 2016. He wrote 

that he had seen Nadon “every few months,” he had diagnosed Nadon with “major 

depression; PTSD,” and he opined that Nadon on average is likely to be absent from 

work because of those impairments “more than three times per month.” Dr. Newman 

stated that the assessment related back to March 27, 2015. In rejecting Nadon’s 

appeal, the Council found that Dr. Newman’s assessment did not relate to the period 

at issue.

In July 2019, the district court upheld the ALJ’s decision. The district court’s 

order addressed Dr. Newman’s treatment notes; however, it did not discuss the 

PTSD diagnosis. The district court, instead, stated that the “ALJ relied on Dr. 

Newman’s progress notes from a May 2016 visit in finding that Plaintiff’s medically 

determinable mental impairments of depression and anxiety did not cause more than 

minimal limitations.” The district court ignored the July 2016 notes and asserted

that “[a]t the time of the ALJ’s decision, there were no other progress notes from Dr. 
5 

Newman in the record.” The district court discounted Dr. Newman’s 2017 mental 

assessment and stated that “it was not part of the record at the time of [the] ALJ’s 

decision,” and “it did not relate to the period at issue.” The district court also 

discounted the retrospective diagnosis in mental assessment and reasoned that 

“although Dr. Newman check-marked a box stating that Plaintiff’s symptoms and 

limitations would have been present in March 2015, he did not begin treating her 

until May 2016.”

“A decision to deny benefits will only be disturbed if it is not supported by 

‘substantial evidence or it is based on legal error.’” Burch, 400 F.3d at 679 (citation 

omitted). Therefore, we review an agency’s factual findings for substantial 

evidence. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). “[T]he ALJ may reject 

an uncontroverted opinion of a treating physician only for clear and convincing 

reasons.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (emphasis 

omitted). If the ALJ ignores a medical opinion, we review that omission for 

harmless error. Marsh v. Colvin, 792 F.3d 1170, 1172–73 (9th Cir. 2015); see also 

Burch, 400 F.3d at 679 (holding that the agency’s conclusion will not be reversed 

for errors that are harmless). “In reviewing the agency’s determination, a reviewing 

court considers the evidence in its entirety, weighing both the evidence that supports 

and that detracts from the ALJ’s conclusion.” Luther v. Berryhill, 891 F.3d 872, 875 

(9th Cir. 2018) (citation omitted).
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First, it is not clear whether the ALJ, the district court, and the SSA in its brief 

on appeal have mistakenly overlooked the PTSD diagnosis or have conflated it with 

depression. Nadon’s benefits application, the May 2016 and July 2016 treatment 

notes, the 2017 mental assessment, and Nadon’s brief on appeal all discuss PTSD. 

The ALJ cited “Exh. 16F/3” in her order, which is the first page of the May 2016 

notes; however, the list of exhibits for the ALJ’s decision describes the dates for 

Newman’s notes as “7/26/2016 to 7/26/2016.” In the ALJ’s failure to discuss Dr. 

Newman’s uncontroverted PTSD diagnosis, she also did not provide clear and 

convincing reasons to reject the diagnosis. Even if the ALJ, the district court, and 

the SSA conflated PTSD with depression, our court has recognized PTSD as a 

condition distinct from depression in the context of Social Security benefits appeals. 

See Ghanim v. Colvin, 763 F.3d 1154, 1160, 1164 (9th Cir. 2014).

Second, it is also noteworthy that the Appeals Council, the district court, and 

the government have confused the record relating to Dr. Newman’s treatment notes 

to discount Nadon’s diagnosis at various points in the proceedings. The record 

available to the ALJ clearly reflects that Nadon visited Dr. Newman in May 2016 

and July 2016. Yet the district court held that only the May 2016 notes were 

available, whereas the government on appeal asserts that only the July 2016 notes 

were available. The Appeals Council also erroneously believed that Dr. Newman’s 

March 2017 opinion “d[id] not relate to the time period at issue” in Nadon’s benefits 
7 

application. Misunderstanding the temporal scope of a medical opinion is error. 

Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011).

Nonetheless, the district court highlighted that “although Dr. Newman checkmarked a box stating that Plaintiff’s symptoms and limitations would have been 

present in March 2015, he did not begin treating her until May 2016.” Similarly, the 

government argues that “[a]lthough Dr. Newman . . . check-marked a box indicating 

that Nadon’s symptoms and limitations would have been present in March 2015, the 

record contained no indication that he saw or treated Nadon prior to July 2016.” The 

government has argued, and the district court agreed, that Dr. Newman’s 2017 

mental assessment, therefore, fails to “provide[] any basis for changing the ALJ’s 

decision.” This is not the law. We have previously held that a “claimant may 

establish such continuous disabling severity by means of a retrospective diagnosis.” 

Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1461 (9th Cir. 1995). It is 

well-established that rejecting a medical opinion because it was rendered 

retrospectively is not a legitimate basis. See, e.g., Morgan v. Comm’r of Soc. Sec. 

Admin., 169 F.3d 595, 601 (9th Cir. 1999); Lester v. Chater, 81 F.3d 821, 832 & 

n.10 (9th Cir. 1995). 

Third, the ALJ picked portions of Dr. Newman’s treatment notes to discount 

Nadon’s subjective testimony regarding her activities of daily living and how her 

mental conditions interfered with her life. On remand, we instruct the ALJ to 
8 

consider Nadon’s subjective evidence indicating Nadon’s difficulties due to her 

PTSD and depression. The ALJ cited the May 2016 notes only to support her finding 

that Nadon “demonstrated good concentration, and good insight and judgment[.]” 

Yet the ALJ omitted Dr. Newman’s notes that Nadon had reported suicidal thoughts 

and isolation.

Our court’s decision in Diedrich v. Berryhill is instructive. 874 F.3d 634 (9th 

Cir. 2017); see also Ghanim, 763 F.3d at 1164. In Diedrich, the ALJ found that 

Diedrich was able to engage in a wide range of daily living activities, citing her 

abilities to bathe, cook, shop, do chores, and other tasks. However, we held that “the 

ALJ ignored other evidence showing the difficulties Diedrich faced in everyday 

life,” and we cited Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984), for the 

proposition that an “ALJ may not justify a credibility finding by ignoring competent 

evidence in the record that suggests an opposite result.” Diedrich, 874 F.3d at 643

(quotation marks omitted). We listed, among other things, Diedrich’s periodic 

sleeplessness, bouts of depression, and promiscuousness during manic periods. Id. 

We concluded “[t]hat Diedrich could participate in some daily activities does not 

contradict the evidence of otherwise severe problems that she encountered in her 

daily life during the relevant period.” Id. The ALJ failed to consider similar

evidence from Nadon’s testimony and Dr. Newman’s treatment notes. We direct the 

ALJ to conduct this analysis on remand.
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Ultimately, the ALJ’s failure to address Dr. Newman’s medical opinion 

generally, and specifically with respect to the PTSD diagnosis, was legal error that 

was not harmless. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)

(“Where an ALJ does not explicitly reject a medical opinion or set forth specific, 

legitimate reasons for crediting one medical opinion over another, he errs”). The 

ALJ did not simply reject Dr. Newman’s medical opinion without providing reasons 

for crediting another opinion; she completely overlooked the PTSD diagnosis or 

conflated it with depression and anxiety. In addition, the record does not include 

another medical opinion that addressed a potential PTSD diagnosis or its severity, 

which might controvert Dr. Newman’s assessment. The ALJ’s error in ignoring this 

evidence is not harmless because we cannot “confidently conclude that no 

reasonable ALJ, when fully crediting the testimony, could have reached a different 

disability determination.” Marsh, 792 F.3d at 1173 (quoting Stout v. Comm’r, Soc. 

Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006)).

On remand, the ALJ is directed to consider Nadon’s PTSD diagnosis and Dr. 

Newman’s treatment notes. We also direct the ALJ to consider the PTSD diagnosis 

as distinct from that of depression, and the disability analysis should reflect as much. 

VACATED and REMANDED.