NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLORIA PAREDES RUIZ, No. 20-15286
Plaintiff-Appellant, D.C. No. 1:17-cv-00180-BAM
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding
Argued and Submitted January 11, 2021
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and RESTANI,** Judge.
Gloria Paredes Ruiz (Ruiz) appeals the judgment affirming the decision of
an administrative law judge (ALJ) denying her application for Supplemental
Security Income. We reverse and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291. The court reviews a district
court’s order upholding the Social Security Commissioner’s (Commissioner)
denial of benefits de novo and reverses only if the decision is not supported by
substantial evidence or contains legal error. Garrison v. Colvin, 759 F.3d 995,
1009–10 (9th Cir. 2014). The court is “constrained to review the reasons the ALJ
asserts” and “cannot rely on independent findings of the district court.” Stout v.
Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation and
internal quotation marks omitted).
Once a claimant establishes that she has a severe impairment that prevents
her from performing past relevant work, the ALJ must make a determination that
she can perform some type of substantial gainful activity that “exist[s] in
significant numbers in the national economy” to find her not disabled. 20 C.F.R. §§
404.1560(c), 416.960(c); Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068,
1071 (9th Cir. 2010). An ALJ can make this determination by taking into account
testimony from a vocational expert (VE) regarding the claimant’s capacity, but the
ALJ must “identify the types of jobs [the claimant can] perform notwithstanding
[the impairments] . . . . [and] ascertain whether those kinds of jobs exist[] in
significant numbers in the national economy.” Biestek v. Berryhill, 139 S. Ct.
1148, 1152 (2019) (citations and internal quotation marks omitted). We give great
deference to an ALJ’s decision to rely on VE testimony because “the ALJ [is] in
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the best position to evaluate and resolve any conflicting evidence concerning the
number of jobs in relevant occupations[.]” Shaibi v. Berryhill, 883 F.3d 1102, 1110
(9th Cir. 2017).
At the administrative hearing, the ALJ heard testimony from a VE regarding
Ruiz’s past work and vocational capacity to perform other jobs. The ALJ
concluded that Ruiz could not perform past work, but that she was capable of
performing jobs requiring frequent hand use—counter attendant, cafeteria
attendant and sales attendant—and that these jobs exist in significant numbers in
the national economy. The parties agree with the district court’s holding that this
conclusion was error. The district court concluded that the error was harmless,
reasoning that the VE’s testimony regarding occupations for individuals who could
use their hands occasionally still supported the ALJ’s ultimate nondisability
determination.
The error is not harmless. The court “cannot affirm the decision of an
agency on a ground that the agency did not invoke in making its decision.” Stout,
454 F.3d at 1054 (citations and internal quotation marks omitted). An ALJ’s silent
disregard of evidence provides the court “nothing to review to determine whether
the error materially impacted the ALJ’s ultimate decision” and therefore, whether
the error was harmless. Stout, 454 F.3d at 1056; see also Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 884–85 (9th Cir. 2006) (declining to affirm the ALJ
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decision because it lacked specific findings and reasoning, leaving the court no
meaningful explanation with which to assess its legitimacy). Where the
Commissioner seeks dismissal of an ALJ’s error as harmless and “invites this
Court to affirm the denial of benefits on a ground not invoked by the
Commissioner in denying the benefits originally, then we must decline.” Stout, 454
F.3d at 1054 (citation and internal quotation marks omitted).
The ALJ did not make any factual finding regarding Ruiz’s ability to
perform jobs that exist in a significant number, while using her hands occasionally.
Although the VE provided testimony that an individual with the same vocational
profile as Ruiz who was limited to occasional hand use could hypothetically
perform three jobs—counter clerk, page, and bakery worker—that testimony was
not credited by the ALJ. The ALJ did not mention this testimony, accorded it no
weight, and made no factual finding as to Ruiz’s ability to perform this work with
occasional use of her hands. Accordingly, the district court erred in concluding the
ALJ’s error was harmless because in doing so it affirmed the Commissioner’s
denial on a basis that the ALJ had not relied on. See SEC v. Chenery Corp., 332
U.S. 194, 196 (1947) (stating that “a reviewing court, in dealing with a
determination or judgment which an administrative agency alone is authorized to
make, must judge the propriety of such action solely by the grounds invoked by the
agency.”).
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The district court shall remand this case to the ALJ for further proceedings
consistent with this disposition.
REVERSED AND REMANDED.
5
Gloria Paredes Ruiz v. Andrew Saul
Combined Opinion