Hassen v. Commissioner of the Social Security Administration ( 2011 )

FILED
NOT FOR PUBLICATION MAR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ABDU S. HASSEN, No. 10-35138
Plaintiff - Appellant, D.C. No. 3:08-cv-00742-PK
v.
MEMORANDUM *
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak, Magistrate Judge, Presiding
Submitted March 11, 2011 **
Portland, Oregon
Before: THOMAS and GRABER, Circuit Judges, and SELNA,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James V. Selna, United States District Judge for the
District of Central California, sitting by designation.
Abdu Hassen appeals the district court’s order affirming the Commissioner
of Social Security’s decision denying his applications for disability insurance
benefits and supplemental security income payments. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part and reverse in part. Because the factual
and procedural history is familiar to the parties, we need not recount it here.
The administrative law judge (“ALJ”) provided clear and convincing reasons
for discounting the testimony of Drs. O’Dell and Krause because the testimony
largely relied on Hassen’s self-reported symptoms and limitations and because the
record evidence showing Hassen’s improved mental health and subsequent work as
a medical transporter undermined their evaluations. See Thomas v. Barnhart, 278
F.3d 947, 956-57 (9th Cir. 2002). The ALJ did not err in failing to discuss the
opinions of doctors Tatyrek, Lowenstein, Thrall, Lawlor, and Swanson because
their testimony was not significant or probative. See Vincent ex rel. Vincent v.
Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam); see also Hassen v.
Holder, No. CV 08-742-PK, at *4-8 (D. Or. filed Dec. 11, 2009) (explaining why
the failure to discuss this testimony was harmless). The ALJ also did not err in
failing to call a second vocational expert because the residual functional capacity
determination had not changed. Finally, the district court did not engage in post-
hoc rationalizations in affirming the ALJ.
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However, the ALJ did err by failing to discuss the testimony of Sherry
Mackey. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). This error was
not harmless because a reasonable ALJ, when fully crediting the testimony, could
have reached a different disability determination. Stout v. Comm’r, 454 F.3d 1050,
1055 (9th Cir. 2006).1 Specifically, Mackey testified that Hassen could stay on
task for only two hours in a sheltered workshop. When the vocational expert was
provided a hypothetical that accounted for such limitations on productivity, the
vocational expert testified that such a worker would not be able to sustain
employment. Although the record provides reasons to discount Mackey’s
testimony, we cannot provide post-hoc rationalizations for the ALJ’s decision.
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). We therefore remand to the
district court with instructions to remand to the agency to conduct a proper inquiry
into Mackey’s testimony.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED
WITH INSTRUCTIONS. COSTS ON APPEAL AWARDED TO
PLAINTIFF-APPELLANT.
1
The harmless error standard set forth in Carmickle v. Commissioner does
not apply where, as here, the ALJ fails to mention lay testimony entirely because
there is “simply nothing in the record for the court to review to determine whether
the ALJ’s decision was adequately supported.” 533 F.3d 1155, 1163 (9th Cir.
2008).
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