FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KORTNEY MCGEE, No. 12-35721
Plaintiff - Appellant, D.C. No. 4:11-cv-00063-SEH
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted February 3, 2014
Seattle, Washington
Before: FISHER, GOULD, and CHRISTEN, Circuit Judges.
Kortney McGee appeals from the district court’s order granting summary
judgment to the Commissioner of the Social Security Administration on review of
an Administrative Law Judge’s (ALJ) decision denying disability benefits. McGee
appeals the ALJ’s findings and conclusions at steps three and five of the five-step
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sequential evaluation for disability determinations. Exercising de novo review of
the district court’s order, Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009), we affirm in part, reverse in part, and remand to the district court
with instructions to remand to the Social Security Administration to conduct
further proceedings at step five.
At step three, the ALJ’s determination that McGee did not meet the
regulatory listings for cerebral palsy was supported by substantial evidence.1
McGee acknowledges that, in order to meet the listings at step three for children
and adults, she had the burden of showing “persistent disorganization of motor
function” involving two extremities. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§
11.04(B), 11.07, 111.06–07. Contrary to McGee’s suggestion, the ALJ did not
improperly reject the opinions of her treating or examining physicians.
Disorganization of motor function “depends on the degree of interference with
locomotion and/or interference with the use of fingers, hands, and arms.” Id. §
11.00(C). Assuming that McGee could establish persistent disorganization of her
right upper extremity, substantial evidence would still support the ALJ’s finding
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McGee does not appear to appeal the ALJ’s findings that she also did
not medically equal or functionally equal a listed impairment. Even if she had, we
would uphold the entirety of the ALJ’s determination at step three as supported by
substantial evidence.
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that she did not have such a disorganization of another extremity. Among other
things, the record of McGee’s physical activities and abilities supports the ALJ’s
conclusion.
At step five, “an ALJ is required to seek the assistance of a vocational expert
when [a claimant’s] non-exertional limitations are at a sufficient level of severity
such as to make the [medical-vocational guidelines] inapplicable to the particular
case.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). Here, the ALJ
reasonably concluded that some of McGee’s testimony regarding the extent of her
symptoms was not fully credible. But the ALJ’s broad finding that McGee did not
have any significant non-exertional limitations is not supported by substantial
evidence and “specific, clear and convincing reasons.” Smolen v. Chater, 80 F.3d
1273, 1281 (9th Cir. 1996). We reverse the district court’s order granting
summary judgment on this ground, for several reasons.
First, the fact that McGee’s symptoms of urinary incontinence “improved”
with the medication Vesicare does not demonstrate that the symptoms disappeared.
The record does not show that McGee’s urinary issues were fully controlled, such
that she might not have the limitation of needing ready access to a restroom at
work. Second, while the record supports a finding that McGee can function well
with her right upper extremity, it does not support the broader conclusion that
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McGee has no significant limitations with her right hand and arm. In addition, the
medical record contradicts the ALJ’s statement that there was an absence of “upper
extremity complaints or findings on examination subsequent to December 2007
when she was found ‘extremely functional’ with the use of her right upper
extremity.” For example, a December 2008 medical progress record noted that
McGee complained of “pain in her right wrist and hand,” and a March 2009
medical record indicated that she had “some right upper extremity weakness.”
Therefore, the ALJ did not provide a specific, clear and convincing reason why
McGee could perform “a full range of ‘medium’ work,” including work that might
involve extensive gripping, pulling and pushing, or fine movements with both
hands and arms. Finally, the ALJ found that McGee “can walk and/or stand for 1
hour before needing to sit” and concluded that she did not have significant walking
or standing limitations. But the ALJ did not explain why the inability to walk or
stand for more than an hour at a time is not itself a significant non-exertional
limitation. See Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999) (claimant’s
need to shift positions every half hour was signficant non-exertional limitation).
At the administrative hearing, McGee’s counsel posed a hypothetical
question to the vocational expert that incorporated some of McGee’s non-
exertional limitations. Unfortunately, the transcript of the expert’s answer is
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inaudible and not subject to judicial review. Therefore, we reverse the district
court’s order granting summary judgment and remand to the district court with
instructions to remand to the Social Security Administration to make additional
step-five findings, incorporating McGee’s non-exertional limitations. Substantial
evidence supports the finding that McGee is capable of a medium range of
exertion, subject to non-exertional limitations, and substantial evidence supports
the finding that McGee does not have other significant non-exertional limitations
besides those reflected in the limitations described above (length of time
standing/walking, modest limitations with the right upper extremity, and urinary
issues).
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings.
Each party shall bear its own costs on appeal.
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