NOT FOR PUBLICATION FILED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

2 18-56508 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).

3 18-56508 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

4 18-56508 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.

5 18-56508