                                                                                        FILED
                            NOT FOR PUBLICATION                                         JUN 14 2012

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




                            FOR THE NINTH CIRCUIT

TRACY SISSON,                                    No. 11-35246

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05738-RBL

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                         Argued and Submitted June 6, 201 *
                               Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and HALL, District
Judge.**


       Tracy Sisson appeals the denial of her application for disability benefits. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
             The Honorable Janet C. Hall, United States District Judge for the
District of Connecticut, sitting by designation.
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decision upholding the Commissioner's denial of benefits de novo. Edlund v.

Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). We reverse the administrative

law judge's decision only when it is not supported by substantial evidence or is

based on legal error. Id.

         Sisson contends that the ALJ committed legal error by failing to fully credit

her testimony about the intensity, persistence, and limiting effects of her tremors.

We agree. The ALJ should not have discounted Sisson’s testimony about the

limiting effects of her tremors based on her reported activities because none of the

evidence in the record contradicts her assertion that her tremors are only

intermittently severely limiting. Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

1995).

         Next, Sisson contends that the ALJ’s residual functional capacity (“RFC”)

assessment is not supported by substantial evidence. We agree. The ALJ did not

set forth legitimate reasons for attributing limited weight to Dr. Duckworth’s

opinion that Sisson is limited to sedentary exertion by her cerebral palsy. Tackett

v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999); Lester, 81 F.3d at 830-31. The

ALJ also failed to provide specific and legitimate reasons supported by substantial

evidence to reject Dr. Wheeler’s diagnosis of borderline intellectual functioning.




                                            2
Tackett, 180 F.3d at 1102-03; Lester, 81 F.3d at 830-31. Lastly, the ALJ erred by

failing to address or resolve the potential conflict between the testimony of Gail

Sisson and Dr. Kesting. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

      Other errors made by the ALJ in determining Sisson’s RFC were harmless.

Specifically, the ALJ’s mischaracterization of Sisson’s cerebral palsy as historical

and his mistake in recounting the results of Dr. Kesting’s spelling examination are

both harmless error. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th

Cir. 2006).

      Sisson contends that the ALJ made further errors in determining her RFC by

failing to mention specific pieces of evidence from the reports of Dr. Mayers, Dr.

Bremer, Dr. Downes, and Gail Sisson. The evidence to which Sisson points would

not have added significant, probative value when considered in conjunction with

other evidence that the ALJ discusses, and therefore the ALJ was not required to

discuss these pieces of evidence specifically. Vincent ex rel. Vincent v. Heckler,

739 F.2d 1393, 1394-95 (9th Cir. 1984).

      Finally, Sisson contends that the ALJ erred by determining that she could

return to her past relevant work as a housekeeper, because he made that

determination without establishing that such work constituted substantial gainful




                                          3
activity. Although we decline to decide this issue because it was not raised before

the district court, we are troubled by the ALJ’s failure to properly address the

record on whether Sisson’s past relevant work constituted substantial gainful

activity. 20 C.F.R. § 404.1574(b)(3); Lewis, 236 F.3d at 515-16.

      In light of these errors, we reverse the decision of the district court and

instruct it to remand this case to the ALJ for further determinations consistent with

this decision.

      REVERSED and REMANDED.




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