                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               MAY 03 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TRACEY J. TERRY,                                 No.   17-36053

              Plaintiff-Appellant,               D.C. No. CV16-5990-JPD

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
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 April 12, 2019
                               Seattle, Washington

Before: FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

      Plaintiff-Appellant Tracey J. Terry appeals the district court’s order

affirming the administrative law judge’s (ALJ’s) denial of her application for

Disability Insurance Benefits and Supplemental Security Income. We have

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s order

affirming an ALJ’s disability determination de novo and will uphold an ALJ’s

decision unless it contains legal error or is not supported by substantial evidence.

Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014). Here, we affirm in

part, reverse in part, and remand to the agency for further consideration to address

the errors identified below.1

      1. The ALJ Must Evaluate Terry’s Headaches. The ALJ concluded that

Terry’s headaches constituted a severe impairment but omitted the symptoms and

limitations caused by her headaches from the residual functional capacity (RFC)

determination, without providing a reason for doing so.

      The ALJ carefully summarized Terry’s medical evidence—including her

headaches—before stating that Terry’s testimony “concerning the intensity,

persistence and limiting effects of these symptoms are not entirely credible for the

reasons stated below.” In support of her negative credibility finding, the ALJ

compared Terry’s testimony and self-reporting to the objective medical evidence.

The ALJ thoroughly addressed and rebutted Terry’s testimony and medical

evidence regarding her two other severe impairments but the ALJ’s decision did



      1
            Because the parties are familiar with the facts and arguments on
appeal, we do not recite them here.
                                           2
not address Terry’s headaches when analyzing Terry’s credibility and weighing the

medical evidence.

      An ALJ “may only find an applicant not credible by making specific

findings as to credibility and stating clear and convincing reasons for each.”

Garrison, 759 F.3d at 1015 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,

883 (9th Cir. 2006)). Because the ALJ did not provide any specific reasons for

discrediting Terry’s testimony regarding the symptoms and limitations caused by

her headaches, this omission from the RFC was error. Id. at 1011 (“the ALJ

determines a claimant’s residual functional capacity . . . based on all the relevant

medical and other evidence in [the] case record. If a claimant has multiple

impairments, they are all included in the assessment.” (internal quotation marks

and citations omitted)).

      Finally, “we cannot affirm the decision of an agency on a ground that the

agency did not invoke in making its decision.” Stout v. Comm’r, Soc. Sec. Admin.,

454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Pinto v. Massanari, 249 F.3d 840,

847 (9th Cir. 2001)). Nor may we affirm the decision under the rubric of harmless

error, because the vocational expert’s response to the ALJ’s second hypothetical

shows that the omission of Terry’s headache symptoms and limitations from her

RFC was not “irrelevant to the ALJ’s ultimate disability conclusion.” Id. at 1055.


                                           3
      2. Terry’s Remaining Claims Fail. The ALJ otherwise provided specific,

clear, and convincing reasons for rejecting Terry’s testimony about her symptoms

and limitations, and provided germane reasons for rejecting the lay testimony Terry

offered in support of her claims. Additionally, the ALJ provided specific and

legitimate reasons supported by substantial evidence to discount the medical

opinions Terry addresses in her appeal. While the ALJ’s failure to: (1) ensure that

Terry viewed the CD containing her medical evidence prior to her hearing; and (2)

inform Terry of her right to cross-examine the vocational expert at the hearing

were procedural errors under 20 C.F.R. § 404.916(b)(3) (2017), these errors were

harmless because Terry fails to show that either error prevented the admission or

evaluation of any material evidence.

      AFFIRMED in part, REVERSED in part, and REMANDED.

      Each party shall bear their own costs.




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