Brian Gilbert Dalka v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN GILBERT DALKA,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Respondent-Appellee.
No. 20-36043
D.C. No. 2:19-cv-00150-CWD
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding
Argued and Submitted November 19, 2021
San Francisco, California
Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.
Petitioner Brian Dalka appeals the district court’s judgment affirming an
Administrative Law Judge’s (“ALJ”) denial of his application for disability
benefits. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand
for further proceedings.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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On October 14, 2016, an ALJ denied Dalka’s first application for disability
benefits. Dalka did not appeal. Thus, under Chavez v. Bowen, 844 F.2d 691, 693
(9th Cir. 1988),1 the ALJ’s findings became final and binding. Dalka re-applied
for benefits, alleging disability beginning October 15, 2016. A second ALJ found
that a new listing for Post-Traumatic Stress Disorder (“PTSD”) severity at step
three, Listing 12.15, constituted a changed circumstance under Chavez but that
Dalka’s impairments did not exceed Listing 12.15’s requirements.2 See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.15 (2017). As no other changed circumstances
existed, the ALJ adopted the remainder of the first ALJ’s findings and found Dalka
not disabled. Dalka then sought judicial review in the District of Idaho. The
district court granted summary judgment to the Commissioner.
Under Listing 12.15, a claimant can demonstrate disabling PTSD at step
three by presenting evidence of a traumatic incident and extreme limitation in one
area or marked limitation in two of four areas of mental functioning. § 12.15(B).
Two of those areas—interacting with others and concentrating, persisting, or
1 “[A] claimant, in order to overcome the presumption of continuing nondisability
arising from the first administrative law judge’s findings of nondisability, must
prove ‘changed circumstances’ indicating a greater disability.” Id. (citations
omitted).
2 Dalka contends that the second ALJ “reopened” the first ALJ’s decision. An ALJ
may reopen a case on a claimant’s motion, Klemm v. Astrue, 543 F.3d 1139, 1141
(9th Cir. 2008), or where “an ALJ later considers ‘on the merits’ whether the
claimant was disabled during an already-adjudicated period,” Lewis v. Apfel, 236
F.3d 503, 510 (9th Cir. 2001). Neither of these circumstances applies.

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maintaining pace—are similar to criteria in the former listings. See 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.04(B) (2016). The ALJ did not err in finding, like the
previous ALJ, that Dalka was moderately limited in interacting and mildly limited
in concentration and persistence. Listing 12.15, however, includes two new areas
of mental functioning: understanding, remembering, or applying information and
adapting and managing oneself. The ALJ found that Dalka had mild limitations in
each area and was thus not disabled.
The ALJ legally erred in making these new findings in two ways.
First, the ALJ failed to properly credit Dr. Patterson’s reports that Dalka’s
PTSD symptoms were the same in 2017 as they had been in early 2016. Dr.
Patterson reported that Dalka had a baseline level of PTSD symptoms that began
before and persisted throughout the relevant time period. Dr. Patterson’s notes
themselves do not contain descriptions of this baseline level of PTSD symptoms;
thus, in order to consider Dr. Patterson’s reports that Dalka’s PTSD remained
unchanged, one must look to 2016 reports by Drs. Jones and Parry to understand
that baseline. The ALJ did note that Dalka’s “chronic” symptoms were “stable,”
but failed to discuss the reports describing those chronic symptoms. The ALJ’s
finding that “chronic” symptoms are “stable” does not suggest non-disability if

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those symptoms are incapacitating.3 The applicable regulation, 20 C.F.R. §
404.1520c(b) (2017), required the ALJ to articulate on the record how persuasive
those reports were. His failure to do so is legal error.
Second, the ALJ failed to credit Dalka’s testimony. Where an ALJ
“determines that a claimant for Social Security benefits is not malingering and has
provided objective medical evidence of an underlying impairment which might
reasonably produce the pain or other symptoms she alleges, the ALJ may reject the
claimant’s testimony about the severity of those symptoms only by providing
specific, clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806
F.3d 487, 488–89 (9th Cir. 2015). The ALJ must “specifically identify the
testimony from a claimant she or he finds not to be credible and explain what
evidence undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th
Cir. 2020) (alterations omitted) (citing Treichler v. Comm’r of Soc. Sec. Admin.,
775 F.3d 1090, 1102 (9th Cir. 2014)).
3 These reports could well have changed the ALJ’s determination. Dr. Karen Jones
examined Dalka for PTSD on January 21, 2016, finding that “[Dalka] is currently
exhibiting total social and occupational impairment attributable to PTSD . . . His
inability to discern reality at times, significant impulse control problems, and
market suicidality do not portend successful independent functioning at this time.”
Dr. Richard Parry examined Dalka for a traumatic brain injury and PTSD in
September of 2016 and found that Dalka was “markedly limited” in his abilities to
“understand and remember detailed instructions.”

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In his Function Report, Dalka stated that he does not follow written or
spoken instructions well and has trouble with his memory, understanding, and
ability to complete tasks. He testified that talking to his therapist Talia Torrano
exacerbates his PTSD. The ALJ discounted the Function Report because Dalka
“refused to share his ‘internal struggles’” with Torrano—without addressing
Dalka’s statement that sharing with Torrano exacerbates his PTSD. Nor did the
ALJ explain why he rejected Dalka’s testimony that he drives into oncoming
traffic three or four times a week.4 The ALJ’s failure to do so is legal error.
Had the ALJ properly credited Dalka’s testimony and Dr. Patterson’s reports
that Dalka’s PTSD symptoms, as described by Drs. Jones and Parry, did not
improve, the ALJ might well have found that Dalka exhibited marked limitations
in understanding, remembering, or applying information and adapting and
managing oneself. Because the ALJ ignored pertinent records and Dalka’s own
testimony, his findings are a result of legal error. We reverse and remand for the
agency to properly consider the record at step three. We therefore need not reach
Dalka’s remaining arguments.
REVERSED AND REMANDED.
4 Adapting and managing oneself includes “being aware of normal hazards and
taking appropriate precautions.”

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