Donna L. Greene v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA L. GREENE,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 12-56199
D.C. No. 3:11-cv-02208-DMS-
PCL
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted June 5, 2014
Pasadena, California
Before: REINHARDT, FISHER and MURGUIA, Circuit Judges.
Donna L. Greene appeals the district court’s grant of summary judgment in
favor of the Commissioner of the Social Security Administration, upholding the
denial of her application for disability insurance benefits. We have jurisdiction
under 28 U.S.C. § 1291, and we vacate and remand.
FILED
JUN 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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The ALJ failed to adequately address the vision and hearing impairments
supported by the record and explained in Greene’s testimony. The ALJ’s residual
functional capacity assessment did not include any information about Greene’s
vision problems, and it mentioned Greene’s hearing problems only briefly, noting
that Greene “testified that she had hearing loss, but used bilateral hearing devices.”
However, the ALJ was required to “consider the limiting effects of all [of
Greene’s] impairment(s), even those that are not severe, in determining [Greene’s]
residual functional capacity.” 20 C.F.R. § 404.1545(e); see also SSR 96-8P, 1996
WL 374184, at *5 (July 2, 1996) (“In assessing RFC, the adjudicator must consider
limitations and restrictions imposed by all of an individual’s impairments, even
those that are not ‘severe.’”).
Additionally, in posing hypothetical questions to the vocational expert, the
ALJ improperly failed to include any information regarding Greene’s hearing
impairment. See Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (“[T]he
ALJ poses hypothetical questions to the vocational expert that set out all of the
claimant’s impairments for the vocational expert’s consideration.” (internal
quotation marks omitted)). The ALJ asked the vocational expert about a letter
from a medical authority concerning Greene’s vision, but both the ALJ and the
vocational expert concluded during the hearing that the information was “too
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vague,” and the ALJ failed to properly pursue further clarification from the
medical expert. See 20 C.F.R. § 404.1512(e) (2009) (“When the evidence we
receive from your . . . medical source is inadequate for us to determine whether
you are disabled, we will need additional information . . . . We will seek additional
evidence or clarification from your medical source when the report from your
medical source contains a conflict or ambiguity that must be resolved, [or] the
report does not contain all the necessary information . . . .”).
The Commissioner contends that the ALJ did not thoroughly address
Greene’s vision and hearing issues because the ALJ did not find these impairments
to be credible and supported by substantial evidence. See Bayliss v. Barnhart, 427
F.3d 1211, 1217 (9th Cir. 2005) (“The hypothetical that the ALJ posed to the VE
contained all of the limitations that the ALJ found credible and supported by
substantial evidence in the record. The ALJ’s reliance on testimony the VE gave in
response to the hypothetical therefore was proper.”). But the ALJ did not state that
finding in his decision, either in the adverse credibility determination or elsewhere.
The ALJ failed to explain why Greene’s vision and hearing impairments were
largely absent from his analysis.
The ALJ also erred in finding that Greene’s testimony regarding her inability
to perform work due to hearing and vision impairments lacked credibility. He
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failed to offer a clear and convincing explanation of why the limited activities in
which Greene engaged rendered her testimony that she was incapable of working
unreliable. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (setting
forth the clear and convincing standard).
On remand, the ALJ should properly address Greene’s vision and hearing
impairments, or explain why they are not credible and not supported by substantial
evidence.
VACATED AND REMANDED to the district court, for remand to the
Social Security Administration for further proceedings.
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