Kristina Slayter v. Commissioner Social Security , 693 F. App'x 529 ( 2017 )

FILED
NOT FOR PUBLICATION
JUN 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTINA KAY SLAYTER, No. 14-35031
Plaintiff - Appellant, D.C. No. 6:12-cv-01297-JO
v.
MEMORANDUM*
NANCY BERRYHILL, acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, Senior District Judge, Presiding
Argued and Submitted May 12, 2017
Portland, Oregon
Before: BYBEE and HURWITZ, Circuit Judges, and ZOUHARY,** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Kristina Kay Slayter appeals the district court decision affirming the denial of
her applications for disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act. At step five of the sequential
analysis, the administrative law judge (ALJ) found that, despite Slayter’s impairments
of borderline intellectual functioning, adjustment disorder and anxiety disorder, she
could perform jobs that existed in significant numbers in the national economy.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
court order affirming the ALJ’s denial of Social Security benefits, and will reverse
only if the ALJ’s decision was not supported by substantial evidence or if the ALJ
applied the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012). For the following reasons, we vacate and remand, with instructions to remand
this case to the agency:
1. The vocational expert testified that if Slayter requires “special
supervision” to sustain an ordinary routine, she cannot perform the jobs the ALJ
identified. Examining psychologist Pamela Roman prepared two reports in this
matter: a 2009 Intellectual Assessment and a 2011 Mental Residual Functional
Capacity (MRFC) evaluation. The 2009 report was signed using her maiden name,
Pamela Joffe, and the 2011 report used her married name. The ALJ adopted Dr.
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Roman’s finding in both reports that Slayter could perform simple tasks but rejected
her 2011 finding that Slayter required special supervision to sustain an ordinary
routine. As this was the opinion of an examining physician, the ALJ was required to
provide specific and legitimate reasons, supported by substantial evidence, for
rejecting it. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
The ALJ identified two reasons for rejecting Dr. Roman’s finding. First,
apparently believing that Dr. Joffe and Dr. Roman were different people, the ALJ
gave “greater weight” to the 2009 assessment in part because it appeared “more
thorough.” To the extent the ALJ’s analysis rested on that premise, it was in error.
Although the 2011 report was a routine “check-the-box” exercise in which the
evaluator is asked to rate the claimant’s abilities in a variety of categories, Dr. Roman
completed the report based on her 2009 assessment.
Second, the ALJ concluded Dr. Roman’s 2011 finding regarding special
supervision did not account for Slayter’s work history or independence in daily life.
He specifically noted that Slayter lived and cared for her children independently at one
time, and she “was able to sustain competitive employment for years.” But other
record evidence is inconsistent with this characterization and suggests Slayter’s work
history and independence were much more limited.
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For example, lay witness Toni Kloch, who had known Slayter for thirty years,
testified at the administrative hearing that Slayter required supervision and positive
reinforcement to stay on task, needed help at work, and relied on parental support
while living independently. “An ALJ may reject a lay witness’s testimony only ‘upon
giving a reason germane to that witness.’” Ghanim v. Colvin, 763 F.3d 1154, 1165
(9th Cir. 2014) (quoting Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)). Failure
to comment on lay witness testimony is harmless where the testimony “does not
describe any limitations not already described by the claimant, and the ALJ’s well-
supported reasons for rejecting the claimant’s testimony apply equally well to the lay
witness testimony.” Molina, 674 F.3d at 1117.
The ALJ rejected Kloch’s written third-party function report without
specifically referring to her hearing testimony that Slayter required supervision.
Kloch’s testimony was not coextensive with Slayter’s, and the ALJ’s somewhat
opaque reference to his evaluation of Slayter’s credibility was not sufficient to
discount Kloch’s testimony. The ALJ was not required to believe every statement
made by Kloch or any other witness. But his failure to address conflicting evidence
undermines his stated reason for discrediting her testimony. See Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“[A] reviewing court must consider the
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entire record as a whole and may not affirm simply by isolating a ‘specific quantum
of supporting evidence.’”).
2. The vocational expert also testified that if Slayter can only remember
“one simple instruction at a time,” she “probably” cannot perform the jobs the ALJ
identified. Dr. Roman’s 2009 and 2011 reports found that Slayter cannot remember
more than one instruction at a time or detailed instructions. The ALJ did not
specifically address these findings.
We therefore remand this matter to the ALJ for reconsideration of the testimony
of lay witness Toni Kloch and the opinions of examining psychologist Dr. Pamela
Roman. Taxing appeal costs to Appellee SSA.
VACATED AND REMANDED.
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