                                                                                   FILED
                             NOT FOR PUBLICATION                                   NOV 18 2009

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



                             FOR THE NINTH CIRCUIT


GEORGE POTTS,                                      No. 08-36020

              Plaintiff - Appellant,               D.C. No. 3:07-cv-00701-HA

  v.
                                                   MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

              Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Oregon
                     Ancer L. Haggerty, District Judge, Presiding

                      Argued and Submitted November 4, 2009
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.

       When the Commissioner conducts a continuing disability review to

determine if a claimant is still eligible to receive disability benefits, the

Commissioner must determine whether there has been “any decrease in the medical

severity of [the claimant’s] impairment(s) which was present at the time of the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
most recent favorable medical decision that [the claimant was] disabled or

continued to be disabled.” 20 C.F.R. § 404.1594(b)(1), (f)(3). Here, the

Administrative Law Judge (“ALJ”) incorrectly used the February 1995 decision

finding Potts to be disabled as the comparison point for improvement. As the

Commissioner conceded in briefing and in oral argument, the correct comparison

point was Potts’ continuing disability review in March 2000. Because the ALJ’s

findings were based on legal error, we reverse the district court’s judgment and

remand with instructions to remand to the Commissioner for further proceedings

consistent with this memoradum. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.

1996). Upon remand, Potts’ benefits may be reinstated consistent with the

provisions of 20 C.F.R. § 404.1597a(i)(6).

      REVERSED and REMANDED.
