FILED
NOT FOR PUBLICATION
MAY 03 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACEY J. TERRY, No. 17-36053
Plaintiff-Appellant, D.C. No. CV16-5990-JPD
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Argued and Submitted April 12, 2019
Seattle, Washington
Before: FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
Plaintiff-Appellant Tracey J. Terry appeals the district court’s order
affirming the administrative law judge’s (ALJ’s) denial of her application for
Disability Insurance Benefits and Supplemental Security Income. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s order
affirming an ALJ’s disability determination de novo and will uphold an ALJ’s
decision unless it contains legal error or is not supported by substantial evidence.
Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014). Here, we affirm in
part, reverse in part, and remand to the agency for further consideration to address
the errors identified below.1
1. The ALJ Must Evaluate Terry’s Headaches. The ALJ concluded that
Terry’s headaches constituted a severe impairment but omitted the symptoms and
limitations caused by her headaches from the residual functional capacity (RFC)
determination, without providing a reason for doing so.
The ALJ carefully summarized Terry’s medical evidence—including her
headaches—before stating that Terry’s testimony “concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the
reasons stated below.” In support of her negative credibility finding, the ALJ
compared Terry’s testimony and self-reporting to the objective medical evidence.
The ALJ thoroughly addressed and rebutted Terry’s testimony and medical
evidence regarding her two other severe impairments but the ALJ’s decision did
1
Because the parties are familiar with the facts and arguments on
appeal, we do not recite them here.
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not address Terry’s headaches when analyzing Terry’s credibility and weighing the
medical evidence.
An ALJ “may only find an applicant not credible by making specific
findings as to credibility and stating clear and convincing reasons for each.”
Garrison, 759 F.3d at 1015 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,
883 (9th Cir. 2006)). Because the ALJ did not provide any specific reasons for
discrediting Terry’s testimony regarding the symptoms and limitations caused by
her headaches, this omission from the RFC was error. Id. at 1011 (“the ALJ
determines a claimant’s residual functional capacity . . . based on all the relevant
medical and other evidence in [the] case record. If a claimant has multiple
impairments, they are all included in the assessment.” (internal quotation marks
and citations omitted)).
Finally, “we cannot affirm the decision of an agency on a ground that the
agency did not invoke in making its decision.” Stout v. Comm’r, Soc. Sec. Admin.,
454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Pinto v. Massanari, 249 F.3d 840,
847 (9th Cir. 2001)). Nor may we affirm the decision under the rubric of harmless
error, because the vocational expert’s response to the ALJ’s second hypothetical
shows that the omission of Terry’s headache symptoms and limitations from her
RFC was not “irrelevant to the ALJ’s ultimate disability conclusion.” Id. at 1055.
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2. Terry’s Remaining Claims Fail. The ALJ otherwise provided specific,
clear, and convincing reasons for rejecting Terry’s testimony about her symptoms
and limitations, and provided germane reasons for rejecting the lay testimony Terry
offered in support of her claims. Additionally, the ALJ provided specific and
legitimate reasons supported by substantial evidence to discount the medical
opinions Terry addresses in her appeal. While the ALJ’s failure to: (1) ensure that
Terry viewed the CD containing her medical evidence prior to her hearing; and (2)
inform Terry of her right to cross-examine the vocational expert at the hearing
were procedural errors under 20 C.F.R. § 404.916(b)(3) (2017), these errors were
harmless because Terry fails to show that either error prevented the admission or
evaluation of any material evidence.
AFFIRMED in part, REVERSED in part, and REMANDED.
Each party shall bear their own costs.
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