                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 24 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KORTNEY MCGEE,                                   No. 12-35721

              Plaintiff - Appellant,             D.C. No. 4:11-cv-00063-SEH

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted February 3, 2014
                               Seattle, Washington

Before: FISHER, GOULD, and CHRISTEN, Circuit Judges.

       Kortney McGee appeals from the district court’s order granting summary

judgment to the Commissioner of the Social Security Administration on review of

an Administrative Law Judge’s (ALJ) decision denying disability benefits. McGee

appeals the ALJ’s findings and conclusions at steps three and five of the five-step


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sequential evaluation for disability determinations. Exercising de novo review of

the district court’s order, Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009), we affirm in part, reverse in part, and remand to the district court

with instructions to remand to the Social Security Administration to conduct

further proceedings at step five.

      At step three, the ALJ’s determination that McGee did not meet the

regulatory listings for cerebral palsy was supported by substantial evidence.1

McGee acknowledges that, in order to meet the listings at step three for children

and adults, she had the burden of showing “persistent disorganization of motor

function” involving two extremities. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§

11.04(B), 11.07, 111.06–07. Contrary to McGee’s suggestion, the ALJ did not

improperly reject the opinions of her treating or examining physicians.

Disorganization of motor function “depends on the degree of interference with

locomotion and/or interference with the use of fingers, hands, and arms.” Id. §

11.00(C). Assuming that McGee could establish persistent disorganization of her

right upper extremity, substantial evidence would still support the ALJ’s finding



      1
             McGee does not appear to appeal the ALJ’s findings that she also did
not medically equal or functionally equal a listed impairment. Even if she had, we
would uphold the entirety of the ALJ’s determination at step three as supported by
substantial evidence.

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that she did not have such a disorganization of another extremity. Among other

things, the record of McGee’s physical activities and abilities supports the ALJ’s

conclusion.

      At step five, “an ALJ is required to seek the assistance of a vocational expert

when [a claimant’s] non-exertional limitations are at a sufficient level of severity

such as to make the [medical-vocational guidelines] inapplicable to the particular

case.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). Here, the ALJ

reasonably concluded that some of McGee’s testimony regarding the extent of her

symptoms was not fully credible. But the ALJ’s broad finding that McGee did not

have any significant non-exertional limitations is not supported by substantial

evidence and “specific, clear and convincing reasons.” Smolen v. Chater, 80 F.3d

1273, 1281 (9th Cir. 1996). We reverse the district court’s order granting

summary judgment on this ground, for several reasons.

      First, the fact that McGee’s symptoms of urinary incontinence “improved”

with the medication Vesicare does not demonstrate that the symptoms disappeared.

The record does not show that McGee’s urinary issues were fully controlled, such

that she might not have the limitation of needing ready access to a restroom at

work. Second, while the record supports a finding that McGee can function well

with her right upper extremity, it does not support the broader conclusion that


                                           3
McGee has no significant limitations with her right hand and arm. In addition, the

medical record contradicts the ALJ’s statement that there was an absence of “upper

extremity complaints or findings on examination subsequent to December 2007

when she was found ‘extremely functional’ with the use of her right upper

extremity.” For example, a December 2008 medical progress record noted that

McGee complained of “pain in her right wrist and hand,” and a March 2009

medical record indicated that she had “some right upper extremity weakness.”

Therefore, the ALJ did not provide a specific, clear and convincing reason why

McGee could perform “a full range of ‘medium’ work,” including work that might

involve extensive gripping, pulling and pushing, or fine movements with both

hands and arms. Finally, the ALJ found that McGee “can walk and/or stand for 1

hour before needing to sit” and concluded that she did not have significant walking

or standing limitations. But the ALJ did not explain why the inability to walk or

stand for more than an hour at a time is not itself a significant non-exertional

limitation. See Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999) (claimant’s

need to shift positions every half hour was signficant non-exertional limitation).

      At the administrative hearing, McGee’s counsel posed a hypothetical

question to the vocational expert that incorporated some of McGee’s non-

exertional limitations. Unfortunately, the transcript of the expert’s answer is


                                           4
inaudible and not subject to judicial review. Therefore, we reverse the district

court’s order granting summary judgment and remand to the district court with

instructions to remand to the Social Security Administration to make additional

step-five findings, incorporating McGee’s non-exertional limitations. Substantial

evidence supports the finding that McGee is capable of a medium range of

exertion, subject to non-exertional limitations, and substantial evidence supports

the finding that McGee does not have other significant non-exertional limitations

besides those reflected in the limitations described above (length of time

standing/walking, modest limitations with the right upper extremity, and urinary

issues).

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.

      Each party shall bear its own costs on appeal.




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