                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 25 2015

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

DANIEL BRINK,                                    No. 13-35385

              Plaintiff - Appellant,             D.C. No. 3:12-cv-01131-MA

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                Malcolm F. Marsh, Senior District Judge, Presiding

                       Argued and Submitted March 5, 2015
                                Portland, Oregon

Before: FISHER, PAEZ, and IKUTA, Circuit Judges.

       Daniel Brink appeals the district court’s judgment affirming the

Administrative Law Judge’s (ALJ) denial of benefits. We have jurisdiction under

28 U.S.C. § 1291.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The ALJ failed to follow the law of the case. We previously held that the

ALJ failed to include Brink’s moderate impairments in concentration, persistence,

or pace in the ALJ’s hypothetical to the vocational expert. Brink v. Comm’r Soc.

Sec. Admin., 343 Fed App’x 211, 212 (9th Cir. 2009). In other words, we reasoned

that the ALJ failed to capture Brink’s functional limitations resulting from his

moderate impairments in concentration, persistence, or pace when the ALJ’s

hypothetical to the vocational expert stated only that Brink could perform simple,

repetitive tasks. See id. That decision was not clearly erroneous, no intervening

change in the law has occurred, the evidence on remand was not substantially

different, no other changed circumstances exist, and no manifest injustice would

otherwise result. See Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993).

Therefore, the ALJ was bound by our conclusion, and in the absence of any new

evidence in the record, the ALJ erred in repeating a hypothetical to the vocational

expert that was substantially identical to the hypothetical we ruled to be

inadequate. See id.

      On remand the ALJ should identify any additional functional limitations

resulting from Brink’s impairments in maintaining concentration, persistence, or

pace. Alternatively, we have not precluded an ALJ from merely including the

statement that the claimant suffered specified deficiencies of concentration,


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persistence, or pace in a hypothetical, as ALJs have previously done. See Garrison

v. Colvin, 759 F.3d 995, 1006 (9th Cir. 2014).

REVERSED AND REMANDED.




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