FILED
NOT FOR PUBLICATION NOV 18 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE POTTS, No. 08-36020
Plaintiff - Appellant, D.C. No. 3:07-cv-00701-HA
v.
MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted November 4, 2009
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
When the Commissioner conducts a continuing disability review to
determine if a claimant is still eligible to receive disability benefits, the
Commissioner must determine whether there has been “any decrease in the medical
severity of [the claimant’s] impairment(s) which was present at the time of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
most recent favorable medical decision that [the claimant was] disabled or
continued to be disabled.” 20 C.F.R. § 404.1594(b)(1), (f)(3). Here, the
Administrative Law Judge (“ALJ”) incorrectly used the February 1995 decision
finding Potts to be disabled as the comparison point for improvement. As the
Commissioner conceded in briefing and in oral argument, the correct comparison
point was Potts’ continuing disability review in March 2000. Because the ALJ’s
findings were based on legal error, we reverse the district court’s judgment and
remand with instructions to remand to the Commissioner for further proceedings
consistent with this memoradum. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.
1996). Upon remand, Potts’ benefits may be reinstated consistent with the
provisions of 20 C.F.R. § 404.1597a(i)(6).
REVERSED and REMANDED.