NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TATIANA E. ALDERSON, No. 20-35638
Plaintiff-Appellant, D.C. 2:19-cv-00349-MKD
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Mary K. Dimke, Magistrate Judge, Presiding
Argued and Submitted June 8, 2021
Seattle, Washington
Before: GILMAN**, GOULD, and MILLER, Circuit Judges.
Partial Concurrence by Judge MILLER
This case involves an appeal from the district court’s summary-judgment
order affirming the Commissioner of Social Security’s denial of disability
insurance benefits and of supplemental security income under Titles II and XVI of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
the Social Security Act, respectively. Tatiana E. Alderson argues that the
administrative law judge (ALJ) erred in (1) weighing the medical-opinion
testimony, (2) failing to assess Alderson’s (alleged) severe migraines as a “listed
impairment,” (3) discounting Alderson’s credibility, and (4) failing to obtain an
updated psychological examination. Both the Commissioner and the district court
upheld the ALJ’s denial of benefits.
1. Because substantial evidence in the record supports the ALJ’s rulings on
issues (1) and (2), we have no basis to set them aside. See Valentine v. Comm’r
Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (describing the “highly
deferential standard of review” to be applied in determining whether the decision
“was supported by substantial evidence and a correct application of the law”). The
ALJ, however, failed to properly dispose of issues (3) and (4) for the reasons set
forth below.
2. The record indicates that Alderson has been suicidal since age 13 and
contains evidence of trauma-related disorders, severe anxiety, and chronic (as
opposed to “situational”) depression. In downplaying Alderson’s credibility as to
the severity of her mental illnesses, both the ALJ and the district court referenced
the opinion of Alderson’s mother as evidence that Alderson’s suicide attempt in
2017 and her related depression were “based solely on a recent breakup.” But
reliance on the mother’s opinion is questionable both because of Alderson’s
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“conflictive relationship with her mother” and because the record shows a much
longer history of trauma-related disorders and depression.
3. The ALJ also faulted Alderson for not seeking mental-health treatment.
Although a failure to seek additional treatment can sometimes indicate that a
petitioner’s subjective testimony as to her physical ailments is not credible, see,
e.g., Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160–162 (9th Cir.
2008), the ALJ erred in using a failure to seek treatment as a basis to discount
Alderson’s credibility regarding her depression and other mental illnesses, see
Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–300 (9th Cir.
1999) (It “is a questionable practice to chastise one with a mental impairment for
the exercise of poor judgment.”) (citation omitted).
4. The ALJ further erred in failing to order a new psychological
examination. Alderson’s last psychological examination was in September 2016,
with Dr. Jenifer Schultz, Ph.D., evaluating Alderson’s prognosis as “guarded” and
Alderson’s last mental-status examination was in December 2017 when her mental
state was evaluated following a suicide attempt and found to be “abnormal.” All of
this took place well before Alderson’s hearing in May 2018.
5. Dr. Stephen Rubin, Ph.D., to whom the ALJ assigned “great weight,”
recommended obtaining another psychological examination because Alderson was
very young and it had been more than a year since Dr. Schultz’s 2016 evaluation.
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The ALJ herself acknowledged that the file contained “very, very limited mental
health counseling records.” Alderson’s counsel requested that the ALJ order a new
psychological examination, but the ALJ denied the request despite Dr. Rubin’s
testimony that an updated psychological examination would help determine
Alderson’s current functioning. (“Atty: ‘[I] would ask that we follow up with our
medical expert’s request for [an] updated psychological evaluation.’ ALJ: ‘Okay.
The request is denied.’”).
6. “The ALJ always has a special duty to fully and fairly develop the
record” in order to make a fair determination as to disability, even where, as here,
“the claimant is represented by counsel.” Celaya v. Halter, 332 F.3d 1177, 1183
(9th Cir. 2003) (internal quotation marks and citation omitted). This “affirmative
responsibility to develop the record,” id. at 1184, is necessary to ensure that the
ALJ’s decision is based on substantial evidence. In cases where an ALJ fails to
develop the record, courts “cannot conclude that the ALJ’s decision was based on
substantial evidence . . . [when taking] the totality of [the claimant’s] mental
condition into account.” Id. We therefore direct a remand for an updated
psychological examination, and for further appropriate proceedings in light of that
examination before a determination is made regarding Alderson’s eligibility for
benefits. See Tonapetyan v. Halter, 242 F.3d 1144, 1150–51 (9th Cir. 2001).
REVERSED and REMANDED.
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FILED
JUN 25 2021
Alderson v. Saul, No. 20-35638 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MILLER, Circuit Judge, concurring in part and concurring in the judgment:
I agree that the ALJ erred in failing to obtain an updated psychological
examination and that a remand is therefore appropriate. See Tonapetyan v. Halter,
242 F.3d 1144, 1150–51 (9th Cir. 2001). Because the agency will need to reassess
the record after the new psychological examination, I would not reach the issues
addressed by the court in sections 1 through 3 of the memorandum disposition. On
remand, the agency should reconsider all evidence in light of the new examination.