                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KRISTINA R. BLACK,                               No. 11-35379

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01220-JPD

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, 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 March 9, 2012
                               Seattle, Washington

Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Josephine Staton Tucker, District Judge for the U.S.
District Court for Central California, sitting by designation.
      Plaintiff-Appellant Kristina Black appeals the district court’s judgment

affirming the Commissioner of Social Security’s denial of her applications for

Child’s Insurance Benefits and Supplemental Security Income benefits under the

Social Security Act. Black alleged disability due to depressive disorder severe

with psychotic features, polysubstance abuse, obesity, chronic back pain, and

anxiety disorder. We review de novo the district court’s order affirming the

Commissioner’s denial of benefits to ensure that the Commissioner’s decision was

supported by substantial evidence and a correct application of the law. Roberts v.

Shalala, 66 F.3d 179, 182 (9th Cir. 1995).

      The Administrative Law Judge (“ALJ”) applied the five-step sequential

evaluation process to determine if Black is disabled. 20 C.F.R. § 404.1520; 20

C.F.R. § 416.920. At step one, the ALJ determined that Black had not been

engaged in substantial gainful activity since September 1, 2006, the alleged

disability onset date. At step two, the ALJ found that Black had two severe

impairments: (1) major depressive disorder, chronic, severe with psychotic

features, and (2) polysubstance abuse. At step three, the ALJ determined that

Black did not have an impairment that meets the criteria of an impairment listed at

20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then found that Black had the

residual functional capacity to perform a full range of work but with non-exertional


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limitations, and at step four, the ALJ concluded that Black is capable of performing

her past relevant work as a dishwasher, and therefore is not disabled.

Alternatively, at step five, the ALJ concluded that Black is not disabled because

there are other jobs that exist in significant numbers in the economy that she can

perform, including work as a night cleaner.

      The ALJ erred at step two by not considering whether Black’s anxiety

disorder is a severe impairment. Treating physician Dr. Woyna diagnosed Black as

suffering from anxiety disorders and Black alleged that she was disabled in part

due to anxiety disorder. By disregarding the anxiety disorder diagnosis, the ALJ

failed to offer the “specific and legitimate reasons” required to reject a treating

doctor’s conclusions. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).

Substantial evidence does not support the ALJ’s conclusion that the anxiety

disorder is not a severe impairment in the absence of any mention of the disorder.

We cannot determine whether the error was harmless because the ALJ did not

provide a statement of reasons for rejecting evidence relevant to Black’s residual

functional capacity, and therefore we do not know whether the ALJ’s omission was

“inconsequential to the ultimate nondisability determination.” Stout v. Comm’r,

Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).




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      We therefore reverse and remand to the district court with instructions to

remand to the ALJ to consider all of the evidence. We do not reach Black’s other

claims of error.

      REVERSED and REMANDED.




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