FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KRISTINA R. BLACK, No. 11-35379
Plaintiff - Appellant, D.C. No. 2:10-cv-01220-JPD
v.
MEMORANDUM *
MICHAEL J. ASTRUE, 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 March 9, 2012
Seattle, Washington
Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Josephine Staton Tucker, District Judge for the U.S.
District Court for Central California, sitting by designation.
Plaintiff-Appellant Kristina Black appeals the district court’s judgment
affirming the Commissioner of Social Security’s denial of her applications for
Child’s Insurance Benefits and Supplemental Security Income benefits under the
Social Security Act. Black alleged disability due to depressive disorder severe
with psychotic features, polysubstance abuse, obesity, chronic back pain, and
anxiety disorder. We review de novo the district court’s order affirming the
Commissioner’s denial of benefits to ensure that the Commissioner’s decision was
supported by substantial evidence and a correct application of the law. Roberts v.
Shalala, 66 F.3d 179, 182 (9th Cir. 1995).
The Administrative Law Judge (“ALJ”) applied the five-step sequential
evaluation process to determine if Black is disabled. 20 C.F.R. § 404.1520; 20
C.F.R. § 416.920. At step one, the ALJ determined that Black had not been
engaged in substantial gainful activity since September 1, 2006, the alleged
disability onset date. At step two, the ALJ found that Black had two severe
impairments: (1) major depressive disorder, chronic, severe with psychotic
features, and (2) polysubstance abuse. At step three, the ALJ determined that
Black did not have an impairment that meets the criteria of an impairment listed at
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then found that Black had the
residual functional capacity to perform a full range of work but with non-exertional
2
limitations, and at step four, the ALJ concluded that Black is capable of performing
her past relevant work as a dishwasher, and therefore is not disabled.
Alternatively, at step five, the ALJ concluded that Black is not disabled because
there are other jobs that exist in significant numbers in the economy that she can
perform, including work as a night cleaner.
The ALJ erred at step two by not considering whether Black’s anxiety
disorder is a severe impairment. Treating physician Dr. Woyna diagnosed Black as
suffering from anxiety disorders and Black alleged that she was disabled in part
due to anxiety disorder. By disregarding the anxiety disorder diagnosis, the ALJ
failed to offer the “specific and legitimate reasons” required to reject a treating
doctor’s conclusions. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).
Substantial evidence does not support the ALJ’s conclusion that the anxiety
disorder is not a severe impairment in the absence of any mention of the disorder.
We cannot determine whether the error was harmless because the ALJ did not
provide a statement of reasons for rejecting evidence relevant to Black’s residual
functional capacity, and therefore we do not know whether the ALJ’s omission was
“inconsequential to the ultimate nondisability determination.” Stout v. Comm’r,
Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
3
We therefore reverse and remand to the district court with instructions to
remand to the ALJ to consider all of the evidence. We do not reach Black’s other
claims of error.
REVERSED and REMANDED.
4