                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 15 2011

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




                            FOR THE NINTH CIRCUIT



ABDU S. HASSEN,                                  No. 10-35138

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00742-PK

  v.
                                                 MEMORANDUM *
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                              for the District of Oregon
                     Paul J. Papak, Magistrate Judge, Presiding

                            Submitted March 11, 2011 **
                                Portland, Oregon

Before: THOMAS and GRABER, Circuit Judges, and SELNA,*** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable James V. Selna, United States District Judge for the
District of Central California, sitting by designation.
      Abdu Hassen appeals the district court’s order affirming the Commissioner

of Social Security’s decision denying his applications for disability insurance

benefits and supplemental security income payments. We have jurisdiction under

28 U.S.C. § 1291, and we affirm in part and reverse in part. Because the factual

and procedural history is familiar to the parties, we need not recount it here.

      The administrative law judge (“ALJ”) provided clear and convincing reasons

for discounting the testimony of Drs. O’Dell and Krause because the testimony

largely relied on Hassen’s self-reported symptoms and limitations and because the

record evidence showing Hassen’s improved mental health and subsequent work as

a medical transporter undermined their evaluations. See Thomas v. Barnhart, 278

F.3d 947, 956-57 (9th Cir. 2002). The ALJ did not err in failing to discuss the

opinions of doctors Tatyrek, Lowenstein, Thrall, Lawlor, and Swanson because

their testimony was not significant or probative. See Vincent ex rel. Vincent v.

Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam); see also Hassen v.

Holder, No. CV 08-742-PK, at *4-8 (D. Or. filed Dec. 11, 2009) (explaining why

the failure to discuss this testimony was harmless). The ALJ also did not err in

failing to call a second vocational expert because the residual functional capacity

determination had not changed. Finally, the district court did not engage in post-

hoc rationalizations in affirming the ALJ.


                                          -2-
      However, the ALJ did err by failing to discuss the testimony of Sherry

Mackey. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). This error was

not harmless because a reasonable ALJ, when fully crediting the testimony, could

have reached a different disability determination. Stout v. Comm’r, 454 F.3d 1050,

1055 (9th Cir. 2006).1 Specifically, Mackey testified that Hassen could stay on

task for only two hours in a sheltered workshop. When the vocational expert was

provided a hypothetical that accounted for such limitations on productivity, the

vocational expert testified that such a worker would not be able to sustain

employment. Although the record provides reasons to discount Mackey’s

testimony, we cannot provide post-hoc rationalizations for the ALJ’s decision.

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). We therefore remand to the

district court with instructions to remand to the agency to conduct a proper inquiry

into Mackey’s testimony.




    AFFIRMED IN PART, REVERSED IN PART, and REMANDED
WITH INSTRUCTIONS. COSTS ON APPEAL AWARDED TO
PLAINTIFF-APPELLANT.


      1
         The harmless error standard set forth in Carmickle v. Commissioner does
not apply where, as here, the ALJ fails to mention lay testimony entirely because
there is “simply nothing in the record for the court to review to determine whether
the ALJ’s decision was adequately supported.” 533 F.3d 1155, 1163 (9th Cir.
2008).

                                         -3-
