NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DANIEL BRINK, No. 13-35385
Plaintiff - Appellant, D.C. No. 3:12-cv-01131-MA
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted March 5, 2015
Portland, Oregon
Before: FISHER, PAEZ, and IKUTA, Circuit Judges.
Daniel Brink appeals the district court’s judgment affirming the
Administrative Law Judge’s (ALJ) denial of benefits. We have jurisdiction under
28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The ALJ failed to follow the law of the case. We previously held that the
ALJ failed to include Brink’s moderate impairments in concentration, persistence,
or pace in the ALJ’s hypothetical to the vocational expert. Brink v. Comm’r Soc.
Sec. Admin., 343 Fed App’x 211, 212 (9th Cir. 2009). In other words, we reasoned
that the ALJ failed to capture Brink’s functional limitations resulting from his
moderate impairments in concentration, persistence, or pace when the ALJ’s
hypothetical to the vocational expert stated only that Brink could perform simple,
repetitive tasks. See id. That decision was not clearly erroneous, no intervening
change in the law has occurred, the evidence on remand was not substantially
different, no other changed circumstances exist, and no manifest injustice would
otherwise result. See Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993).
Therefore, the ALJ was bound by our conclusion, and in the absence of any new
evidence in the record, the ALJ erred in repeating a hypothetical to the vocational
expert that was substantially identical to the hypothetical we ruled to be
inadequate. See id.
On remand the ALJ should identify any additional functional limitations
resulting from Brink’s impairments in maintaining concentration, persistence, or
pace. Alternatively, we have not precluded an ALJ from merely including the
statement that the claimant suffered specified deficiencies of concentration,
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persistence, or pace in a hypothetical, as ALJs have previously done. See Garrison
v. Colvin, 759 F.3d 995, 1006 (9th Cir. 2014).
REVERSED AND REMANDED.
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