Comer

MEMORANDUM *

Annette Comer appeals the district court’s order affirming the Commissioner of Social Security’s final decision to deny her application for Title II disability insurance benefits (“DIB”) and SSI disability benefits (“SSI”). We have jurisdiction under 28 U.S.C. § 1291 , and review the district court’s order de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir.2000). We reverse and remand.

Because the parties are familiar with the facts, we recite here only those necessary to explain our decision.

Comer applied for DIB and SSI in the fall of 1995, alleging that she became unable to work because of her disabling condition on August 2, 1993. In her disability report, Comer listed her disabling conditions as “osteoarthritis, high-fluctuating blood pressure, asthma, boney growth in neck, job and personal stress, diabetes, incontinence.” Her applications were denied initially and upon reconsideration. Comer requested, and was given, a hearing before an administrative law judge (“ALJ”) to contest the rejection of her applications.

At the hearing, Comer described her various medical conditions, to wit, pain in her knees and back, high blood pressure, diabetes,…

dissenting.

I respectfully dissent. I cannot agree with the majority’s characterization of the ALJ’s hypothetical.

First, the majority asserts that the ALJ was unaware of the ME’s findings because the ME failed to submit his MRFC form into evidence. Supra at 530 n. 2. This is simply untrue. The ALJ and Comer’s attorney each stated that each had copied down the ME’s MRFC findings. Indeed, the ALJ expressly recapped the ME’s MRFC findings as part of the hypothetical. See Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir.2002)

Second, the majority claims that the ALJ offered an inadequate hypothetical because the claimant and her attorney interrupted the hypothetical with comments. Supra at 530. This is simply unsound. The VE expressed no problems understanding the hypothetical. Indeed, the interruptions were few and short. In any event, Comer may not complain about her own interruptions during the hypothetical. Cf. Hudson v. Wylie, 242 F.2d 435, 448 (9th Cir.1957) (“[0]ne may not complain on review of errors below for which he is responsible.”).

Third, the majority stresses that the ALJ used equivocal language in the hypothetical. Supra at 530-31. This is inaccurate. While giving…