Allison Eaves v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLISON L. EAVES, No. 18-56508
Plaintiff-Appellant, D.C. No. 2:17-cv-04484-FFM
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Frederick F. Mumm, Magistrate Judge, Presiding
Submitted May 20, 2022**
Pasadena, California
Before: MILLER and COLLINS, Circuit Judges, and KORMAN,*** District
Judge.
Allison L. Eaves appeals from the district court’s decision affirming the
*
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).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Commissioner of Social Security’s denial of her application for supplemental
security income under Title XVI of the Social Security Act. The district court had
jurisdiction under 42 U.S.C. § 405(g), and we have jurisdiction under 28 U.S.C. §
1291. We reverse and remand for further proceedings.
A recovering methamphetamine addict, Eaves alleges disability beginning
August 15, 2013—the date of her last relapse. At that time, Eaves was living in
transitional housing as part of a mental health treatment program where she
attended group therapy sessions every weekday from 9 am to 3 pm, as well as
Alcoholics Anonymous meetings three times a week. In 2014, Eaves moved to a
different transitional living facility where she attended 20 hours of group therapy a
week and attended Alcoholics Anonymous meetings five times a week. At the time
of her second hearing before the ALJ in February 2016, she had been diagnosed
with bipolar disorder or borderline personality disorder, anxiety disorder, alcohol
use disorder, amphetamine use disorder, PTSD, and ADHD. To treat her many
illnesses, Eaves was taking seven different medications daily and seeing
psychiatrists monthly.
Two of these treating psychiatrists, Dr. Jason Graber and Dr. Rebecca Van
Horn, submitted opinions to the Social Security Administration (“SSA”) that Eaves
was at least markedly impaired in her ability to understand and remember
instructions; to interact appropriately with her supervisors, her coworkers, and the
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public; and to respond appropriately to work pressures and changes in a routine
work setting. The ALJ gave “less weight” to the opinions of Dr. Graber and Dr.
Van Horn than to those of the state agency physicians who reviewed Eaves’s
record and found her only moderately impaired in these areas of mental
functioning. Under these circumstances, the ALJ had to provide “specific and
legitimate” reasons to discount Dr. Graber’s and Dr. Van Horn’s opinions. Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).1 The ALJ gave two reasons for
discounting their opinions: (1) they were “presented as check-off reports and do
not contain any explanation of the bases of their conclusions” and (2) “they [were]
not supported by [the doctors’] own treating records showing largely normal
mental status examinations and conservative care.”
While Dr. Graber and Dr. Van Horn did present their opinions on check-box
forms, these forms were provided by the SSA and included written explanations
for the checked boxes. The mere use of a “check-the-box” form does not constitute
a “specific and legitimate” reason to reject an opinion of a treating physician.
Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017). And, contrary to the
ALJ’s assertion, Dr. Graber’s and Dr. Van Horn’s treatment records do support
their opinions, as they recite Eaves’s struggles with anxiety, her repeated panic
1
Because Eaves filed her claim before March 27, 2017, the “specific and
legitimate” standard applies. See 20 C.F.R. § 404.1527(c); Woods v. Kijakazi, 32
F.4th 785, 789 (9th Cir. 2022).
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attacks, and her inability to concentrate for extended periods. See Burrell v. Colvin,
775 F.3d 1133, 1140 (9th Cir. 2014). Moreover, the ALJ erred in characterizing
Eaves’s treatment as “conservative” when the record shows that she was attending
group therapy with a licensed counselor 20 hours a week, meeting with a
psychiatrist monthly, and taking several psychotropic medications daily when she
appeared before the ALJ. Thus, substantial evidence does not support the ALJ’s
decision to reject Dr. Graber’s and Dr. Van Horn’s opinions.
The ALJ’s reasons for discounting the statements of Eaves’s caseworkers
were also flawed. Although the ALJ noted that the caseworkers were not medical
professionals, the ALJ was nonetheless required to give specific reasons “germane
to each witness” before rejecting their lay observations concerning Eaves’s
situation and abilities. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). The
ALJ relied primarily on the ground that their statements were “not fully consistent
with the medical opinions and other evidence” as summarized by the ALJ, but
given the errors we have found in the ALJ’s assessment of the medical opinions,
that ground is vitiated and must be re-evaluated on remand. Moreover, the ALJ’s
categorical dismissal of caseworkers, by virtue of their positions, as being
interested parties whose views may be “colored by affection” for their clients,
lacks support in the record and is not a reason “germane to each witness.” Id. And
because the cumulation of these errors may have contributed to the ALJ’s
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discounting of Eaves’s symptom testimony, that testimony should also be
evaluated afresh on remand.
Accordingly, we reverse the district court’s decision and remand to that
court with instructions to remand to the agency. See Hill v. Astrue, 698 F.3d 1153,
1162 (9th Cir. 2012). We do not direct an award of benefits because “conflicting
evidence” remains in the record, particularly in the opinions of the treating,
examining, and reviewing physicians. Treichler v. Comm’r of Soc. Sec. Admin.,
775 F.3d 1090, 1101 (9th Cir. 2014); see also Dominguez v. Colvin, 808 F.3d 403,
409–10 (9th Cir. 2015).
REVERSED and REMANDED for further proceedings.
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