FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GORDON STOUT, 

Plaintiff-Appellant, No. 04-36006

v. D.C. No. 

COMMISSIONER, SOCIAL SECURITY CV-03-06113-MFM

ADMINISTRATION, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Submitted December 9, 2005*

Portland, Oregon

Filed July 25, 2006

Before: James R. Browning, Dorothy W. Nelson, and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge Browning;

Dissent by Judge O’Scannlain

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

8319
COUNSEL

Alan S. Graf and Kimberly K. Tucker, Alan Stuart Graf, P.C.,

Portland, Oregon, for the appellant.

Robert D. McCallum, Jr., Assistant Attorney General, United

States Department of Justice, Washington D.C.; Karin J.

Immergut, United States Attorney, and Craig J. Casey, Assistant United States Attorney, United States Attorney’s Office,

Portland, Oregon; and Vikash Chhagan, Acting Regional

Chief Counsel, Region X, and L. Jamala Edwards, Assistant

Regional Counsel, Social Security Administration, Office of

the General Counsel, Seattle, Washington, for the appellee. 

8322 STOUT v. COMMISSIONER, SSA
OPINION

BROWNING, Circuit Judge: 

Gordon Stout appeals the district court’s judgment affirming the Social Security Commissioner’s (“Commissioner”)

denial of his applications for Disability Insurance Benefits

(“DIB”) and Supplemental Security Income (“SSI”) under

Titles II and XVI, respectively, of the Social Security Act.

Stout contends the Administrative Law Judge (“ALJ”)

improperly disregarded lay testimony regarding his inability

to work.1 We have jurisdiction under 28 U.S.C. § 1291.

Because the ALJ failed to discuss competent lay witness testimony favorable to Stout, we reverse the district court’s judgment and remand. 

I

Stout filed his current claims for DIB and SSI in February

2000, alleging disability primarily due to back and mental

impairments with an onset date of April 18, 1997. The Social

Security Administration denied these claims initially and

upon reconsideration. Stout requested a hearing. 

At his hearing in February 2002, Stout’s sister, Udena Stout

(“Udena”), testified that Stout’s impairments negatively affect

his ability to work. Additionally, the ALJ received into evidence a letter from Stout’s brother-in-law, Jay Vasquez, with

whom Stout worked for approximately fifteen years. Similar

to Udena’s testimony, Vasquez described Stout’s inability to

work without certain accommodations. During a supplemental

hearing in March 2002, a vocational expert (“VE”) testified.

In response to the ALJ’s hypothetical, the VE opined that

Stout could perform one of his previous jobs and other jobs

in the national economy. 

1By memorandum disposition filed herewith, we affirm the district

court’s judgment as to all other issues Stout raises on appeal. 

STOUT v. COMMISSIONER, SSA 8323
In his decision, the ALJ found Stout able to perform his

past relevant work as a vine pruner and, therefore, not disabled within the meaning of the Social Security Act. The

Appeals Council denied Stout’s request for review, making

the ALJ’s decision the Commissioner’s final decision. See 20

C.F.R. § 404.981. Stout sought judicial review in the United

States District Court for the District of Oregon, which

affirmed the Commissioner’s decision. Stout timely appeals.

II

We review de novo the district court’s affirmance of the

Commissioner’s final decision. Webb v. Barnhart, 433 F.3d

683, 685-86 (9th Cir. 2005). We will uphold the Commissioner’s denial of benefits if the Commissioner applied the correct

legal standards and substantial evidence supports the decision.

Id. at 686.

III

A

To medically qualify for benefits under the Social Security

Act, a claimant must establish “the inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted

or can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. § 423(d)(1)(A). In assessing

whether a claimant is disabled, the ALJ follows a five-step,

sequential evaluation process: 

Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 

Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her ability to work? If

8324 STOUT v. COMMISSIONER, SSA
so, proceed to step three. If not, the claimant is not

disabled. 

Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If

so, the claimant is disabled. If not, proceed to step

four. 

Step four: Does the claimant possess the residual

functional capacity (“RFC”) to perform his or her

past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 

Step five: Does the claimant’s RFC, when considered with the claimant’s age, education, and work

experience, allow him or her to adjust to other work

that exists in significant numbers in the national

economy? If so, the claimant is not disabled. If not,

the claimant is disabled. 

See 20 C.F.R. §§ 404.1520, 416.920. 

B

On appeal, Stout challenges the ALJ’s findings at steps four

and five.2 At step four, the ALJ determined Stout’s RFC—the

most Stout could still do despite his limitations. See 20 C.F.R.

§§ 404.1545, 416.945. Finding that Stout had various physical

restrictions and a limited capacity for teamwork and required

non-complex, “two to three step tasks which are fairly repetitive,” the ALJ concluded Stout could “perform a wide range

of light unskilled work, and the inclusive sedentary level

work.” See 20 C.F.R. §§ 404.1567(a) & (b), 416.967(a) & (b).

2Though the ALJ made no specific finding regarding step five, his decision notes the VE’s testimony about other work in the national economy

that a person with Stout’s RFC and vocational characteristics could perform. 

STOUT v. COMMISSIONER, SSA 8325
Based upon Stout’s RFC and the VE’s testimony, the ALJ

found Stout able to perform his past relevant work as a vine

pruner. Consequently, the ALJ concluded Stout was not disabled within the meaning of the Social Security Act. See 20

C.F.R. §§ 404.1560(b)(3) (“If we find that you have the

[RFC] to do your past relevant work, we will determine that

you can still do your past work and are not disabled.”),

416.960(b)(3) (same). 

Stout contends the ALJ erred in finding he could perform

his past relevant work and other work in the national economy. Specifically, he argues the ALJ erred in rejecting without comment the lay witness testimony of his sister, Udena,

and brother-in-law, Jay Vasquez. The Commissioner concedes error but argues it was harmless. We disagree.

C

[1] In determining whether a claimant is disabled, an ALJ

must consider lay witness testimony concerning a claimant’s

ability to work. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th

Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4)

& (e). Indeed, “lay testimony as to a claimant’s symptoms or

how an impairment affects ability to work is competent evidence . . . and therefore cannot be disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)

(citations omitted). Consequently, “[i]f the ALJ wishes to discount the testimony of lay witnesses, he must give reasons

that are germane to each witness.” Dodrill, 12 F.3d at 919; see

also Lewis v. Apfel, 236 F.3d 503, 511 (“Lay testimony as to

a claimant’s symptoms is competent evidence that an ALJ

must take into account, unless he or she expressly determines

to disregard such testimony and gives reasons germane to

each witness for doing so.” (citations omitted)). 

[2] Here, the ALJ was required to consider and comment

upon the uncontradicted lay testimony, as it concerned how

Stout’s impairments impact his ability to work. Both Udena

8326 STOUT v. COMMISSIONER, SSA
and Vasquez testified, consistent with medical evidence,

about Stout’s inability to deal with the demands of work.

After explaining Stout has “problems” accomplishing even

simple tasks, Vasquez, who worked with Stout for fifteen

years as both his boss and co-worker, provided the following

example: “I would have [Stout] clean out the tool trailer and

ask him to label nails, nuts, bolts, and screws. Ten minutes

later I would come back and he would be throwing things on

the ground, becoming frustrated with the simplest of tasks.”

Similarly, Udena testified that simple, monotonous tasks “easily frustrate[ ]” Stout, so much so that, “when something

doesn’t go just right[,] . . . he goes into a rage, blindly throwing things and self-destruction [sic].” 

[3] Moreover, both witnesses explained Stout’s uncommon

need for supervision to perform uncomplicated tasks. For

instance, Udena testified that for Stout to “keep focused on

the job at hand,” someone must “watch over him.” While she

stated Stout “could handle” simple jobs, such as “pick[ing] up

stuff in the yard,” she further clarified why he needs supervision to accomplish such jobs: “Mentally he would tend to

stray [from] what he’s supposed to be doing, find interest in

other things, wander off, and probably explore the area.”

Likewise, Vasquez stated that, for Stout to accomplish even

“menial labor,” he requires “constant supervision.” 

[4] Although the VE specifically testified that a need for literal, constant supervision would not be acceptable in competitive employment, save for one passing reference to Udena’s

testimony about Stout’s general self-destructive behaviors, the

ALJ’s decision wholly fails to mention Udena’s or Vasquez’s

testimony about how Stout’s impairments affect his ability to

work. Therefore, the ALJ erred. See Nguyen, 100 F.3d at

1467. 

D

Conceding the ALJ’s silent disregard of the lay testimony

contravenes our case law and the controlling regulations, the

STOUT v. COMMISSIONER, SSA 8327
Commissioner requests we disregard the error as harmless.

The Commissioner’s argument echoes, if not recites verbatim,

the district court’s harmless error analysis, which it began by

reasoning that Udena’s testimony “suggests [Stout] has

always had intellectual deficits, depression, and episodes of

self-destructive behavior. Yet, [Stout] has been able to engage

in substantial work activity in the past.” As to Vasquez’s testimony, the court reasoned that he worked with Stout for fifteen

years and, “[w]hile it took effort, [Stout] was able to engage

in substantial gainful activity while suffering from his current

impairments.” Because the district court found “[t]he medical

evidence establishes that nothing has changed,” it concluded

there was “no reason to overturn the ALJ’s decision.” 

We note that two considerations caution, if not preclude, us

from adopting these justifications for embracing harmless

error here. First, the ALJ, not the district court, is required to

provide specific reasons for rejecting lay testimony. See

Dodrill, 12 F.3d at 919. Indeed, “we cannot rely on independent findings of the district court.” Connett v. Barnhart, 340

F.3d 871, 874 (9th Cir. 2003). Rather, “[w]e are constrained

to review the reasons the ALJ asserts.” Id. Second, “we cannot affirm the decision of an agency on a ground that the

agency did not invoke in making its decision.” Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (citing SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947)). Consequently, if

the Commissioner’s request that we dismiss the ALJ’s error

as harmless “invites this Court to affirm the denial of benefits

on a ground not invoked by the Commissioner in denying the

benefits originally, then we must decline.” Id. at 847-48. 

We recognize harmless error applies in the Social Security

context. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

2005) (“A decision of the ALJ will not be reversed for errors

that are harmless.” (citing Curry v. Sullivan, 925 F.2d 1127,

1131 (9th Cir. 1991))). Fleshing out the standard’s contours

of application in this unique, nonadversarial area, however,

8328 STOUT v. COMMISSIONER, SSA
leads us to conclude we must decline the Commissioner’s current invitation to employ it here. 

We recently applied harmless error where, unlike here, the

ALJ expressly discredited testimony but erred in doing so. See

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195-

97 (9th Cir. 2004). In Batson, the ALJ found the claimant’s

pain testimony incredible based, in part, on the claimant’s

statement that he watched over six hours of television per day.

Id. at 1196-97. The ALJ reasoned that the claimant’s ability

to sit for that amount of time while watching television indicated he could sit for at least six hours of an eight-hour workday. Id. at 1197. Although the record did not confirm the

claimant always sat during his television viewing, we concluded that any error the ALJ committed in assuming he did

was harmless. Id. We did so because the ALJ provided

numerous other record-supported reasons for discrediting the

claimant’s testimony, which allowed our review to determine

the ALJ’s error did not materially impact his decision. Id. 

We have also affirmed under the rubric of harmless error

where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion. For example, in Curry, we held harmless the ALJ’s erroneous

vocational findings that the claimant was fifty years of age

and had a G.E.D. because the findings were inconsequential

to the ALJ’s determination that she could perform “light

work.” 925 F.2d at 1130-31. Whether she was fifty or, as she

testified, fifty-three years old, the claimant fell within the

“closely approaching advanced age” category. Id. at 1131; see

20 C.F.R. § 404.1563(d) (explaining that, in considering age

as a vocational factor, claimants aged 50-54 are regarded as

“closely approaching advanced age”)). Likewise, the claimant’s literacy and ability to communicate in English rendered

the G.E.D. finding “immaterial” to the ALJ’s nondisability

determination. Curry, 925 F.2d at 1131. Similarly, in Burch,

after “[a]ssuming without deciding” the ALJ erred in finding

the claimant’s obesity was not a “severe” impairment, we held

STOUT v. COMMISSIONER, SSA 8329
the assumptive error did not require reversal because the step

was “resolved in [the claimant’s] favor.” 400 F.3d at 682. 

We have additionally found harmless errors that occurred

during a procedure or step the ALJ was not required to perform. See, e.g., Matthews v. Shalala, 10 F.3d 678, 681 (9th

Cir. 1993); Booz v. Sec’y of Health & Human Servs., 734 F.2d

1378, 1379-80 (9th Cir. 1984). In Booz, we held any error the

ALJ committed in applying the medical-vocational grids was

harmless because the exercise was “unnecessary” in light of

the claimant’s failure to overcome the nondisability presumption arising from an earlier, unappealed decision. 734 F.2d at

1379-80. In Matthews, we similarly held harmless the ALJ’s

failure, “whether or not the ALJ erred,” to include the claimant’s “staying in one position” limitation in his hypothetical

to the VE. 10 F.3d at 681. We did so after determining the

VE’s testimony was “not required” because the claimant had

failed to show he could not return to his past employment,

and, in any event, the claimant had already testified that his

past work required a combination of sitting and standing, thus

rendering the limitation “not relevant.” Id. 

[5] We discern two particulars from these cases. First, in

each case, the ALJ’s error, if any indeed existed, was inconsequential to the ultimate nondisability determination. See

Burch, 400 F.3d at 682 (concluding any error was nonprejudicial); Matthews, 10 F.3d at 681 (concluding any error

occurred during hypothetical ALJ was “not required” to ask);

Curry, 925 F.2d at 1131 (concluding errors were “immaterial”); Booz, 734 F.2d at 1379-80 (concluding error occurred

during “unnecessary” procedure); see also Brawner v. Sec’y

of Health & Human Servs., 839 F.2d 432, 434 (9th Cir. 1988)

(concluding any error ALJ committed in classifying claimant’s past work as “light” was harmless where record supported ALJ’s finding that claimant could perform other light

work). Second, in not one of these cases did we conclude, as

the Commissioner requests we do here, that an ALJ’s silent

disregard of lay testimony about how an impairment limits a

8330 STOUT v. COMMISSIONER, SSA
claimant’s ability to work was harmless. Cf. Batson, 359 F.3d

at 1197 (holding harmless ALJ’s partial reliance on assumption record did not support where ALJ gave numerous other

record-supported reasons for adverse credibility finding).

Rather, we, along with our sister circuits, have consistently

reversed the Commissioner’s decisions for failure to comment

on such competent testimony. See, e.g., Merrill ex rel. Merrill

v. Apfel, 224 F.3d 1083, 1085-86 (9th Cir. 2000); Schneider

v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir.

2000); Nguyen, 100 F.3d at 1467; Dodrill, 12 F.3d at 919; see

also, e.g., Godbey v. Apfel, 238 F.3d 803, 809-10 (7th Cir.

2000); Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir.

1990); Huston v. Bowen, 838 F.2d 1125, 1131-33 (10th Cir.

1988); Basinger v. Heckler, 725 F.2d 1166, 1170 (8th Cir.

1984); Stewart v. Sec’y of Health, Educ. & Welfare, 714 F.2d

287, 290 (3rd Cir. 1983). 

[6] In light of these cases, we hold that where the ALJ’s

error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude

that no reasonable ALJ, when fully crediting the testimony,

could have reached a different disability determination. 

[7] In the present case, we cannot so conclude. If fully

credited, the lay testimony supports a conclusion that Stout’s

mental impairments render him in need of a special working

environment which, particularly when considering the VE’s

testimony, a reasonable ALJ could find precludes Stout from

returning to gainful employment. Consequently, the ALJ’s

error in failing to provide reasons for rejecting it was not

harmless. 

[8] This conclusion is consistent with our prior harmless

error cases in this area. Unlike in Burch, we cannot say the

ALJ’s error here was nonprejudicial to Stout. Based on his

RFC determination and the VE’s response to a hypothetical—

which both failed to account for lay testimony about how

STOUT v. COMMISSIONER, SSA 8331
Stout’s impairments negatively affect his ability to work—the

ALJ found Stout could return to his previous work and was,

therefore, not disabled. Cf. Burch, 400 F.3d at 682 (concluding any error ALJ committed at step two was harmless

because the step was resolved in claimant’s favor). Nor can

we conclude, as we did in Curry, that the ALJ’s error was

irrelevant to his nondisability finding. Cf. 925 F.2d at 1131.

The VE specifically opined that constant supervision is unacceptable in competitive employment; yet, the ALJ articulated

no reasons for dismissing the uncontradicted lay testimony

indicating Stout needed such supervision to perform even

simple tasks. This silent disregard thus leaves us, unlike in

Batson, with nothing to review to determine whether the error

materially impacted the ALJ’s ultimate decision. Cf. 359 F.3d

at 1190. 

Moreover, the ALJ’s error did not occur during an unnecessary exercise or procedure. Cf. Matthews, 10 F.3d at 681;

Booz, 734 F.2d at 1379-80. Numerous regulations command

the ALJ to consider, throughout the sequential process, lay

testimony as to how claimants’ impairments affect their ability to work. See, e.g., 20 C.F.R. §§ 404.1513(d)(4) & (e),

404.1529(c), 404.1545, 416.913(d)(4) & (e), 416.929(c),

416.945. And, as we have held on many occasions, if the ALJ

wishes to discount such testimony in accord with this obligation, “he must give reasons that are germane to each witness.”

Dodrill, 12 F.3d at 919; Nguyen, 100 F.3d at 1467. 

IV

[9] Because the ALJ failed to provide any reasons for

rejecting competent lay testimony, and because we conclude

that error was not harmless, substantial evidence does not support the Commissioner’s decision that Stout can perform his

previous work as a vine pruner. Consequently, we reverse the

district court’s judgment and remand with instructions to

8332 STOUT v. COMMISSIONER, SSA
remand to the Commissioner for further administrative proceedings consistent with this opinion. 

REVERSED and REMANDED. 

O’SCANNLAIN, Circuit Judge, dissenting: 

I respectfully dissent from the majority’s conclusion that

the ALJ’s failure to comment properly on the lay witness testimony of Stout’s sister and brother-in-law was not harmless

error. I am persuaded, as was the District Court, that even if

the lay witness testimony is credited, all the evidence taken as

a whole overwhelmingly supports denial of Stout’s application for Disability Insurance Benefits and Supplemental

Security Income. 

“A decision of the ALJ will not be reversed for errors that

are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

2005). Here, the lay testimony, when viewed in conjunction

with the evidence the ALJ properly considered, does not

undermine the ALJ’s finding that Stout can engage in his

prior work as a vine pruner. 

The thrust of the lay testimony was that, in his past work

as a roofer, Stout had difficulty working with other people

without supervision. Although the letter from Stout’s brotherin-law, Jay Vasquez, used the term “constant supervision” to

describe the assistance Stout requires, the remainder of

Vasquez’s letter indicates that Vasquez did not provide Stout

literal, constant supervision during the ten years Stout worked

in his construction company. It also indicates that after

Vasquez closed his construction company, Stout worked as a

roofer for another company without supervision and support

from a family member. Similarly, the testimony of Stout’s sister, Udena Stout, does not stand for the proposition that Stout

STOUT v. COMMISSIONER, SSA 8333
requires constant supervision. In fact, Udena testified that

Stout’s need for supervision would vary in relationship to the

complexity of the task. She indicated that Stout could handle

simple tasks that require minimal interaction with others,

although he would have a tendency to become bored or lose

focus. 

All the limitations reasonably supported by the lay testimony appeared in the ALJ’s RFC finding. The ALJ noted that

Stout has “mild to moderate” difficulties in social functioning

and in concentration, persistence, or pace. This information

appeared in the ALJ’s RFC, which noted that Stout “has a

limited capacity for teamwork and needs to minimize repetitive public contact . . . . has a limited capacity for multitasking

with complex instructions . . . . [and] . . . “needs two to three

step tasks which are fairly repetitive.” 

As the district court observed, Stout has engaged in substantial work activity in the past and there is no evidence, in

the lay testimony or elsewhere, that his mental capabilities

have changed. I accordingly agree with the district court’s

determination that the ALJ’s failure to comment properly on

the lay testimony is harmless error.

8334 STOUT v. COMMISSIONER, SSA