Teodoso Moreno v. Michael Astrue ( 2011 )

FILED
NOT FOR PUBLICATION FEB 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TEODOSO SERRANO MORENO, No. 09-56338
Plaintiff - Appellant, D.C. No. 3:08-cv-01022-WQH-
PCL
v.
MICHAEL J. ASTRUE, officially, as MEMORANDUM *
Commissioner of Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted February 9, 2011
Pasadena, California
Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.
Because Moreno’s sister’s lay testimony was relevant to the ALJ’s
determination of whether Moreno would be able to perform work in the national
economy, the ALJ erred in failing to provide specific reasons, germane to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
witness, for rejecting this testimony. See Bruce v. Astrue, 557 F.3d 1113, 1115–16
(9th Cir. 2009); Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). Passing
references to the sister’s testimony about Moreno’s general behavior did not
suffice. Because the ALJ’s decision was inconsistent with the sister’s testimony
with respect to how Moreno’s mental impairment might affect his ability to work,
specific examination of her testimony was required. See Stout, 454 F.3d at 1054.
This error was not harmless because, fully crediting the sister’s testimony, it is not
clear that no reasonable ALJ could have come to a different conclusion regarding
Moreno’s disability. See id. at 1056.
We do not remand for the immediate award of benefits because there are
other outstanding issues—including whether Moreno failed to comply fully with
prescribed treatment without good reason, and whether full compliance would’ve
ameliorated his condition—that must be resolved before entitlement to benefits can
be established. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see
also 20 C.F.R. § 416.930(b); Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995).
On remand, the ALJ is free to reconsider the sister’s testimony; if she rejects it, she
should give specific reasons for doing so. See Dodrill v. Shalala, 12 F.3d 915, 919
(9th Cir. 1993).
REMANDED.