Shalom M. Harris v. NANCY A. BERRYHILL, Acting Commissioner Social Security

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHALOM M. HARRIS,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35585
D.C. No. 2:15-cv-01387-BAT
Western District of Washington,
Seattle
ORDER
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
The petition for panel rehearing is GRANTED. The petition for rehearing
en banc is DENIED as moot. The Memorandum Disposition filed on December
12, 2017 is withdrawn.
FILED
MAY 03 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHALOM M. HARRIS,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35585
D.C. No. 2:15-cv-01387-BAT
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Submitted December 8, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Shalom Harris appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Harris’s application for supplemental
security income disability benefits under Title XVI of the Social Security Act. We
FILED
MAY 03 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 2 of 4 --

have jurisdiction under 28 U.S.C. § 1291. We review de novo, Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we reverse and remand.
The ALJ failed to provide clear and convincing reasons supported by
substantial evidence for rejecting Dr. Hendrickson’s uncontroverted opinion, as an
expert who actually examined Harris, that she showed marked limitations in
interacting appropriately with supervisors. The ALJ’s finding that Harris was
capable of getting along with her medical providers and people who were not her
family members does not address the critical issue of getting along with
supervisors in a work setting. Moreover, Diane Fligstein, PhD., and Gary Nelson,
PhD., who reviewed mental health records but did not examine Harris, specifically
opined that Harris had a moderately limited ability to interact with non-family
members, specifically members of the public and co-workers.
The error is not harmless. The questions to the vocational expert did not
include marked limitations in interacting appropriately with supervisors. Bayliss v.
Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005) (An ALJ may rely on the
vocational expert’s testimony that a claimant can perform other work only if the
2

-- 3 of 4 --

hypothetical question posed to the vocational expert includes all of the claimant’s
limitations).1
REVERSED AND REMANDED.
1Because remand is appropriate on this ground, we do not address the
remaining alternative grounds for relief.
3

-- 4 of 4 --