Gordon Stout v. Commissioner, Social Security Administration

454 F.3d 1050 Gordon STOUT, Plaintiff-Appellant, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee. No. 04-36006. United States Court of Appeals, Ninth Circuit. Submitted December 9, 2005. * Filed July 25, 2006. Alan S. Graf and Kimberly K. Tucker, Alan Stuart Graf, P.C., Portland, OR, for the appellant. Robert D. McCallum, Jr., Assistant Attorney General, United States Department of Justice, Washington D.C.; Karin J. Immergut, United States Attorney, and Craig J. Casey, Assistant United States Attorney, United States Attorney's Office, Portland, OR; and Vikash Chhagan, Acting Regional Chief Counsel, Region X, and L. Jamala Edwards, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Seattle, Washington, for the appellee. Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-03-06113-MFM. Before: BROWNING, D.W. NELSON, and O'SCANNLAIN, Circuit Judges. BROWNING, Circuit Judge: 1 Gordon Stout appeals the district court's judgment affirming the Social Security Commissioner's ("Commissioner") denial of his applications for Disability Insurance Benefits…

Gordon Stout appeals the district court’s judgment affirming the Social Security Commissioner’s (“Commissioner”) denial of his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI, respectively, of the Social Security Act. Stout contends the Administrative Law Judge (“ALJ”) improperly disregarded lay testimony regarding his inability to work. 1 We have jurisdiction under 28 U.S.C. § 1291 . Because the ALJ failed to discuss competent lay witness testimony favorable to Stout, we reverse the district court’s judgment and remand.

I

Stout filed his current claims for DIB and SSI in February 2000, alleging disabil *1052 ity primarily due to back and mental impairments with an onset date of April 18, 1997. The Social Security Administration denied these claims initially and upon reconsideration. Stout requested a hearing.

At his hearing in February 2002, Stout’s sister, Udena Stout (“Udena”), testified that Stout’s impairments negatively affect his ability to work. Additionally, the ALJ received into evidence a letter from Stout’s brother-in-law, Jay Vasquez, with whom Stout worked for approximately fifteen years.…

dissenting:

I respectfully dissent from the majority’s conclusion that the ALJ’s failure to comment properly on the lay witness testimony of Stout’s sister and brother-in-law was not harmless error. I am persuaded, as was the District Court, that even if the lay witness testimony is credited, all the evidence taken as a whole overwhelmingly supports denial of Stout’s application for Disability Insurance Benefits and Supplemental Security Income.

“A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). Here, the lay testimony, when viewed in conjunction with the evidence the ALJ properly considered, does not undermine the ALJ’s finding that Stout can engage in his prior work as a vine pruner.

The thrust of the lay testimony was that, in his past work as a roofer, Stout had difficulty working with other people without supervision. Although the letter from Stout’s brother-in-law, Jay Vasquez, used the term “constant supervision” to describe the assistance Stout requires, the remainder of Vasquez’s letter indicates that Vasquez did not provide Stout literal, constant supervision during the ten years Stout worked…