Patrick H. Montero v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK H. MONTERO,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-15555
No. 1:15-CV-00196-HG-KSC
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawai’i
Helen Gillmor, District Judge, Presiding
Submitted June 6, 2018 **
Before: GOODWIN, LEAVY, and, SILVERMAN, Circuit Judges.
Patrick Montero appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Montero’s application for
supplemental security income under Title XVI of the Social Security Act. We have
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district
* 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).
FILED
JUN 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s order de novo and the agency’s decision for substantial evidence and legal
error. Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We reverse and
remand.
The ALJ erred in posing the hypothetical to the vocational expert (“VE”)
because the ALJ did not include Montero’s alleged limitations that he could not
work continuously and needed to take rest days, or provide clear and convincing
reasons for discounting this testimony. See Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (ALJ must identify “what parts of the
claimant’s testimony were not credible and why”); Hill v. Astrue, 698 F.3d 1153,
1162 (9th Cir. 2012) (“If a vocational expert’s hypothetical does not reflect all the
claimant’s limitations, then the expert’s testimony has no evidentiary value to
support a finding that the claimant can perform jobs in the national economy.”
(citation and internal quotation marks omitted)). This error was not harmless
because it was not “inconsequential to the ultimate nondisability determination.”
Molina, 674 F.3d at 1115 (citation and internal quotation marks omitted). Because
it is not clear, however, that if the evidence were credited as true, the ALJ would
be required to find Montero disabled, we remand the case to the agency for further
proceedings. See Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal
error, but the record is uncertain and ambiguous, the proper approach is to remand
the case to the agency.”).

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The record does not support the Commissioner’s contention that Montero
waived this argument by failing to raise it in the district court or to argue the issue
with the requisite specificity. Cf. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1161 n.2 (9th Cir. 2008).
We reject Montero’s contention that the ALJ failed to fully and fairly
develop the record because the ALJ did not assist Montero with formulating his
own hypothetical to the VE. Cf. Vidal v. Harris, 637 F.2d 710, 714 (9th Cir. 1981)
(concluding that the claimant was “clearly prejudiced by the inadequate
examination of the [VE]” concerning the claimant’s limitations where it was “clear
from the record that the claimant was totally incapable of challenging the [VE]’s
conclusions”).
REVERSED AND REMANDED.

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