OpenJurist

905 F2d 1541 Russell v. Louis W

905 F.2d 1541

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Richard S. RUSSELL, Plaintiff-Appellant,
v.
LOUIS W. SULLIVAN,** Secretary of Health and
Human Services, Defendant-Appellee.

No. 89-35258.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 5, 1989.*
Decided June 29, 1990.

Before WALLACE, PREGERSON, and NELSON, Circuit Judges.

1

MEMORANDUM***

2

Russell appeals the district court's decision which found substantial evidence in the administrative record to support the final decision of the Secretary of Health and Human Services that Russell was not disabled and was not entitled to disability benefits. The district court had jurisdiction pursuant to 42 U.S.C. Sec. 405(g). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291.

3

Although our review of an ALJ's decision to deny disability benefits is limited, see Weetman v. Sullivan, 877 F.2d 20, 21-22 (9th Cir.1989), it is clear that the ALJ's findings in this case are not supported by substantial evidence. We therefore reverse the district court's affirmance of the ALJ's denial of disability benefits and remand this case to the district court with instructions that it be returned to the Secretary for the award of disability benefits.

4

* Because appellant satisfied his initial burden of demonstrating an inability to pursue his customary occupation, see Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir.1982), the burden shifted to the Secretary to show that he was able to engage in "other types of substantial gainful work that exists in the national economy." Id. The Secretary's burden is only satisfied by an "affirmative attempt to link the existence of certain specific jobs with the capacities and limitations of the individual claimant." Bonilla v. Secretary of Health, Educ., & Welfare, 671 F.2d 1245, 1246 (9th Cir.1982) (per curiam).

5

In most cases, the Secretary can meet his obligation by reference to the Medical-Vocational Guidelines, (the "grids") which provide tables for determining if a claimant is disabled given his or her education, age, work experience, and capacity for physical work. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984). But the ALJ may apply the Guidelines in lieu of taking the testimony of a vocational expert only when the Guidelines "accurately and completely describe the claimant's abilities and limitations." Jones v. Heckler, 760 F.2d 993, 998 (9th Cir.1985); see also Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 578-79, (9th Cir.1988) (Pregerson, J. concurring).

6

The Guidelines did not definitively apply in the present case because appellant's specific vocational profile did not appear in the Guidelines, as his residual functional capacity fell between two ranges of work, light and sedentary and did not meet the full range of either category. See 20 C.F.R. Pt. 404, Subpt. P, App 2, Sec. 200.00(d) (1989). The Secretary was obligated to, and did, use a vocational expert1 to try to show that appellant was not disabled. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988) ("Without other reliable evidence of a claimant's ability to perform specific jobs, the Secretary must use a vocational expert to meet [his] burden."); Jones, 760 F.2d at 998; Gallant v. Heckler, 753 F.2d 1450, 1456-57 (9th Cir.1984).

7

That expert, John Berg, testified that appellant could perform several skilled jobs, such as electric motor repair person and electronic assembler, as well as several unskilled jobs such as appointment setter and gas station attendant. The ALJ based his finding that appellant was not disabled on Berg's testimony. That finding is not supported by substantial evidence and must be reversed, however, because the hypothetical posed to Berg did not accurately reflect appellant's limitations. "Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant, including, for example pain...." Embrey, 849 F.2d at 422. " 'If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert ... has no evidentiary value.' " Id. (quoting Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984)).

8

Here, the hypothetical on which Berg based his opinion is not supported by the record for two reasons. First, the ALJ wrongfully discredited appellant's testimony that he could sit forward only about 20 minutes at a time without experiencing pain. That testimony should have been accepted by the ALJ and used by him in formulating the hypothetical to Berg. Second, even apart from the wrongful exclusion of the pain testimony, the ALJ's hypothetical did not reflect appellant's treating physician's diagnosis of appellant's physical limitations.

A. Subjective Pain Testimony

9

The ALJ's ruling that appellant was not disabled was predicated on discrediting appellant's subjective pain testimony that he is only able to sit leaning forward about 20 minutes at a time. We have held that subjective pain testimony is an important factor to consider when determining disability. Varney v. Secretary of Health & Human Services, 846 F.2d 581, 583 (9th Cir.1988). If a claimant submits objective medical findings establishing impairments that "could reasonably be expected to produce the pain," Hammock v. Bowen, 867 F.2d 1209, 1213 (9th Cir.1989), the ALJ must either accept the testimony or make specific findings rejecting it. Weetman, 877 F.2d at 22. Those specific findings must be supported by substantial evidence. Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir.1990); Gallant, 753 F.2d at 1456.

10

Appellant's subjective pain testimony was rejected by the ALJ for three reasons, none of which is supported by substantial evidence. First, the ALJ found that this testimony was not credible because the treating physician's diagnosis had not included any limitations on appellant's posture while he was sitting. The ALJ reasoned that without this limitation, appellant's claim that he could not sit while leaning forward for more than twenty minutes at a time was not supported by any objective medical findings. Second, the ALJ discredited the pain testimony because he found that appellant had engaged in such activities as "camping, mowing his lawn, and other activities without much pain,"2 Finally, although the ALJ acknowledged that this reason was not dispositive, he noted that appellant did not attempt to recline at the hearing.

11

The first of the ALJ's specific findings is not supported by substantial evidence because the objective medical evidence does indicate a scientific basis for appellant's subjective pain testimony. Because appellant's pelvis had been shattered in a hit and run car accident, he was forced to undergo extensive reconstructive surgery and physical therapy. As a result, Dr. Thayer, appellant's treating physician, stated that on Dec. 23, 1985 appellant had "hip flexion to 110? on both sides, he abducted to 30?, but it was very tight and caused abductor soreness. He had 40? of external rotation, but only 10? of internal rotation on both sides."

12

Thayer also stated that appellant would require a job that requires "minimal sitting because of his decreased flexion ability," and that appellant would have a "difficult time sitting for a prolonged period of time in an upright chair," (emphasis added). Thayer further noted that in February 1986, appellant had told him that he "had continued trouble sitting but his most comfortable position [was] with his back reclined and his hip about 70 dgs." Thayer noted that flexion above this caused tightness in the pubic area and anterior groin on both sides. After an August, 1986 examination, Thayer again stated that appellant had "limited abduction and flexion of the hips" and noted that appellant had told him he could sit upright for only 30 minutes with his leg as extended as possible for comfort.

13

Thayer summed up appellant's physical limitations in part by stating that "sitting should be limited to six hours per shift with the ability to ambulate or change positions every 30 minutes to one hour" and that "squatting and bending to reach the floor should be completely eliminated." In the context of all of these statements by appellant's treating physician, appellant's claim that he cannot sit while leaning forward for over 20 minutes at a time can only be viewed as credible and supported by the objective medical evidence. The fact that Thayer did not put this precise limitation in his summary should not be dispositive when the record as a whole reflects that the appellant would have trouble sitting upright for more than thirty minutes and that flexion was a medically recognized problem for him. It is entirely logical, if not inevitable, that sitting forward would be painful for appellant and would need to be limited to 20-minute periods. The ALJ's finding that appellant's testimony is not supported by the physician's limitations or objective medical evidence is not supported by substantial evidence.

14

The ALJ's rejection of the pain testimony based on appellant's activities is also not supported by substantial evidence because the ALJ ignored the qualifications that appellant attached to his ability to engage in such activities. Appellant stated that mowing his lawn caused him to have great pain in his hips the next day, and that although he had recently started camping again, most of his former physical activities, such as claim digging, square dancing, and water skiing, had been eliminated due to his injury. In addition, appellant testified at the administrative hearing that his light housework chores caused him great pain by the time he finished, in spite of the fact that he worked for only four hours a day in 45 minute to an hour stretches with 15 minute breaks in between work periods.

15

The ALJ, therefore, took appellant's statements regarding his activities out of context in order to discredit appellant's subjective pain testimony. The ALJ's characterization of appellant's ability to engage in activities does not accurately reflect the record. In addition, we have stated in a similar situation, that to deny a disability claim because of a capacity to engage in a certain activity "trivializes the importance that we consistently have ascribed to pain testimony." Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986) (overruling an Appeals Council finding of "not disabled" that was based in part on fact that claimant could travel in a motor home). The ALJ's specific finding in this regard is not supported by substantial evidence.

16

Finally, the ALJ's finding that appellant "did not appear to assume [a reclining] posture at the hearing" is not an adequate reason to discredit the pain testimony in this case.3 The record indicates that appellants posture and movements during the hearing were entirely consistent with his allegations of pain. Appellant was not observed at the hearing to be sitting forward over table. It is that position that appellant testified he can assume for only about 20 minutes at a time. In addition, the ALJ seemed to recognize and accommodate appellant's pain allegations during the hearing. Early in the hearing, appellant testified that he thought he was going to have to get up and move a bit because he was starting to cramp. Several minutes later, the ALJ announced a brief recess and told appellant, "If you want to walk around a little bit, that's fine.... Loosen up."

17

Therefore, the ALJ's specific findings rejecting appellant's testimony that he was only able to sit forward about 20 minutes at a time are not supported by substantial evidence. The record as a whole shows that appellant's testimony was credible and should have been considered by the ALJ in determining whether appellant was disabled within the meaning of 42 U.S.C. Sec. 423.

18

In response to questioning by appellant's attorney, Vocational Expert Berg specifically stated that appellant could not function as an electric motor repair person or electronic assembler if he could not sit bent forward over a table for more than 20 minutes at a time. These two jobs would require appellant to sit at a workstool or bench and lean over a table for several hours a day. Therefore, the ALJ's conclusion that appellant is not disabled because he could perform these two jobs is not based on substantial evidence.

19

Berg also stated that appellant could perform unskilled jobs such as appointment setter and gas and oil server but this testimony has no evidentiary value because the hypothetical posed to Berg by the ALJ did not include the fact that appellant cannot sit forward for more than 20 minutes at a time and did not accurately represent appellant's physical limitations as outlined by his treating physician, Dr. Thayer. See infra, section IB; Embrey, 849 F.2d at 422.

B. Lack of Medical Support for Hypothetical

20

Even apart from the wrongful exclusion of appellant's subjective pain testimony, the hypothetical posed to Vocational Expert Berg did not reflect appellant's precise limitations. In formulating the hypothetical the ALJ used the following limitations, which attribute a higher level of physical ability to the appellant than the record supports:

21

He can sit about an hour to an hour and a half and then get up and move around. Standing would be roughly the same. He could stand, but he'd have to sit. Stand for approximately an hour to an hour and a half and then have to sit. He could walk for about the same amount of time then would have to sit to relief [sic] pain and discomfort.

22

These limitations are not supported by substantial evidence in the record. Appellant's treating physician stated that appellant's physical limitations were that

23

standing should be limited to approximately 30 minutes to one hour at a time and four hours total per shift. Sitting should be limited to six hours per shift with the ability to ambulate or change positions every 30 minutes to one hour. Climbing ladders, squatting, and bending to reach the floor should be completely eliminated. Walking three to four hours per shift but only in 30 minute stretches is acceptable.

24

The ALJ extended appellant's walking, sitting, and standing ability 30 minutes to one hour beyond Dr. Thayer's prescribed limitations. That is a considerable amount of time when pain is involved. The ALJ's hypothetical therefore disregarded the diagnosis of the treating physician.4 We have held that "[i]f the ALJ wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). No such findings were made in this case, and it would be difficult to imagine that such findings could have been made, given the fact that the Secretary offered no medical evidence contradicting the treating physician's diagnosis.

25

Because the ALJ's hypothetical to the vocational expert was not made with assumptions that were supportable by the record, the ALJ was not entitled to rely on the opinion of the vocational expert regarding skilled and unskilled jobs that appellant could perform. See Gallant, 753 F.2d at 1456.

II

26

While Vocational Expert Berg's testimony is of no evidentiary value, the record also contains a report by Vocational Expert L. Kent Shaftner that appears to reflect more accurately appellant's limitations. Shaftner concluded that the skills appellant had acquired in his previous occupation were not transferable to any jobs which appellant could reasonably be expected to perform but that appellant's physical condition would allow him to work in some entry level jobs such as delivery person and parking lot attendant. However, Shaftner went on to say that, as a practical matter, he considered appellant only "marginally employable" because due to appellant's age, physical disability, and previous higher wage, employers would likely not hire him for these jobs.

27

We have held that in meeting his burden to show that there are other types of work which the claimant is capable of doing, the Secretary cannot rely on proof that is "based on the claimant's mere theoretical ability to do some kind of work, but must be based on practical and realistic considerations, such as education, experience, emotional and physical condition and reasonable job opportunities available within the area in which claimant lived." Benitez v. Califano, 573 F.2d 653, 655 (9th Cir.1978).

28

Here, the vocational expert's assessment indicates that the few jobs that appellant's physical limitations would allow him to perform are not realistic job opportunites for him. In addition, although the grids do not definitively apply in this case, they provide guidance in decisionmaking. 20 C.F.R. Pt. 404, Subpt. P, App 2, Sec. 200.00(e). The jobs that Shafter listed appear to fall within the light and sedentary categories. At the time of the hearing, appellant was 54 years old, had a high school education, and had no transferable skills.5 A person in that situation who is capable of a full range of sedentary work is considered disabled under the grids. 20 C.F.R. Pt. 404, Subpt. P, App 2, Rule 201.14. A person in that situation who is capable of a full range of light work is considered not disabled. 20 C.F.R. Pt. 404, Subpt. P, App 2, Rule 202.14. Combining this information with Shaftner's testimony that appellant would, in practical terms, be only "marginally employable" in the few jobs that he would be physically capable of performing convinces us that the ALJ's determination that appellant is not disabled is not supported by substantial evidence.

29

Furthermore, just months after the hearing, on April 1, 1987, appellant turned 55 years of age, which is considered "advanced age" under the grids. See 20 C.F.R. Pt. 404, Subpt. P, App 2, Sec. 201.00(d). In this category, using the grids as a framework, he would be considered disabled even if he were capable of a full range of sedentary and light work. See 20 C.F.R. Pt. 404, Subpt. P, App 2, Rules 201.06, 202.06.

Conclusion

30

The decision whether to remand this case for additional evidence or to simply award benefits is within this court's discretion. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989); see also Terry v. Sullivan, No. 89-35477, slip op. 5273, 5287 (9th Cir. May 24, 1990). We generally award benefits when "no useful purpose would be served by further administrative proceedings," Rodriguez, 876 F.2d at 763 (citing Dornock v. Harris, 648 F.2d 525, 527 (9th Cir.1985)), or when "the record has been fully developed and there is not sufficient evidence to support the ALJ's conclusion." Id. (citing Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir.1986)). Where remand would only delay the receipt of benefits, an award of benefits by this court is appropriate. Id.

31

We believe that remanding this case for any reason other than award of benefits would unnecessarily prolong the process and further delay payment of benefits long overdue. Because Berg specifically stated that Russell could not function as electric motor repair person or electronic assembler if he could not sit bent forward over a table for more than 20 minutes at a time, and because the record contains the report of a vocational expert that asserts that Russell is only "marginally employable" in entry level jobs, there is no reason to remand for additional evidence.

32

Therefore, because substantial evidence does not support the ALJ's determination that appellant is not disabled, we REVERSE the district court's affirmance of the ALJ's denial of disability benefits, and REMAND for award of benefits.

33

WALLACE, Circuit Judge, concurring in part and dissenting in part:

34

The majority concludes that the hypothetical question posed to vocational expert Berg was inaccurate for two reasons: first, because the ALJ's hypothetical question was not based on Russell's pain testimony that he is only able to sit leaning forward for about 20 minutes at a time; and second, because the hypothetical question did not accurately reflect the treating physician's estimate of Russell's abilities. I agree with the latter reason, but I disagree with the former. Consequently, I join only in part I.B of the majority disposition. I write separately to explain briefly my disagreement with the rest of the majority's disposition.

35

As the majority correctly observes, our law is clear that in order for the opinion of a vocational expert to constitute substantial evidence, it must be based on an accurate hypothetical question. Embry v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). In part I.A of its opinion, the majority concludes that the ALJ's hypothetical question was inaccurate because it should have been based on Russell's pain testimony, which, they claim, was improperly discredited.

36

Pursuant to our controlling authority in Bates v. Sullivan, 894 F.2d 1059 (9th Cir.1990) (Wright, J., and Wallace, J. concurring), "the Secretary is free to disregard complaints of pain which are not supported by, or which are inconsistent with, medical findings." Id. at 1068. In this case, I think it is a close call whether the ALJ should have discredited Russell's testimony that he could not sit leaning forward for more than 20 minutes without experiencing significant pain since it does have some support in the medical evidence. However, close calls go to the Secretary. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989) (Magallanes ) ("We must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation."); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.1984).

37

As the majority points out, there are statements in the records of the treating physician, Dr. Thayer, which do indicate that Russell has and will have trouble sitting forward. Dr. Thayer opined that Russell has a "difficult time sitting for a prolonged period of time in an upright chair," and that Russell would need to find a job that requires "minimal sitting because of his decreased flexion ability." However, when he described Russell's overall capacity, he stated that "[s]itting should be limited to six hours per shift with the ability to ambulate or change positions every 30 minutes to one hour." This constitutes substantial evidence to discredit Russell's pain testimony that he can only sit forward for about 20 minutes at a time without experiencing significant pain. To hold otherwise, I contend, misconceives this court's limited role in reviewing the Secretary's decisions. Our mandate is clear: we are only able to disturb the Secretary's denial of benefits "if it is not supported by substantial evidence or if it is based on legal error." 42 U.S.C. Sec. 405(g); Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir.1988). Moreover, we must uphold the decision of the ALJ where evidence is susceptible to more than one rational interpretation. Magallanes, 881 F.2d at 750. Under this limited standard of review, I conclude that the Secretary's decision to disregard Russell's pain testimony was supported by substantial evidence.

38

If, therefore, the ALJ had relied completely on Dr. Thayer's statement in order to construct the hypothetical question for vocational expert Berg, I would vote to affirm the district court's decision. He, however, did not. The ALJ's hypothetical question assumed Russell could sit for "about an hour to an hour and a half and then get up and move around." Whereas, the actual limitations reported by Dr. Thayer were that "[s]itting should be limited to six hours per shift with the ability to ambulate or change positions every 30 minutes to one hour." I agree with the majority that this time discrepancy renders the hypothetical question inaccurate. Since Berg testified that if Russell were unable to sit leaning forward over a table for more than 20 minutes at a time, Russell would be unable to perform jobs in either electronic assembly or electric motor repair, there is reason to believe that the ALJ's description of the length of time for which Russell was able to sit could well have been significant in the vocational expert's determination that Russell was able to work at these jobs.

39

It is well-established that if an ALJ wishes to disregard the opinion of a treating physician, the ALJ must make a specific finding setting forth specific, legitimate reasons for doing so. See, e.g., Magallanes, 881 F.2d at 751. Here, the ALJ did not offer any reasons for disregarding Dr. Thayer's opinion. Consequently, the ALJ was not entitled to pose a hypothetical question to Berg which departed from Dr. Thayer's estimation of Russell's sitting ability. I would, therefore, remand the case to the Secretary so that he could either identify specific reasons for disregarding Dr. Thayer's opinion or so that he could pose to a vocational expert a hypothetical question which did in fact reflect Dr. Thayer's estimations of Russell's capacity.

40

The majority, however, contends that remand is not necessary, and that instead benefits should be awarded. I also disagree with this decision. As the majority observes, "we generally award benefits when no useful purpose would be served by further administrative proceedings, or when the record has been fully developed and there is not sufficient evidence to support the ALJ's conclusion." Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989) (citations omitted). This case, however, does not meet those criteria. As I explained above, further administrative proceedings plainly would be useful. Like the Secretary, we cannot know what Berg's estimation of Russell's capacity will be once he has had occasion to ponder an accurate hypothetical question. That the majority should choose not to remand in this case is even more problematic given the fact that Russell himself contends that remand for further vocational testimony is necessary.

41

In summary, because I believe substantial evidence supported the ALJ's decision to discredit Russell's pain testimony, and because I would not remand for the immediate award of benefits, I join only in part I.B of the majority disposition.

**

Louis W. Sullivan is substituted for his predecessor, Otis R. Bowen, as Secretary of Health and Human Services. Fed.R.App.P. 43(c)(1)

*

The panel unanimously found this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The record indicates that two vocational experts participated in this case. Only one of these experts, John Berg, testified at the hearing. The other expert, L. Kent Shaftner, was hired by appellant, and his report is a part of the official record. The ALJ chose to rely on Berg's evaluation to the extent it was in conflict with Shafter's

2

"Other activities" included housekeeping chores such as vacuuming, loading and unloading a dishwasher, and cleaning

3

Even the ALJ admitted that this observation was not "dispositive."

4

Ironically, the ALJ himself ignored his own hypothetical when drafting his opinion, as he stated "I must find that he does retain the ability to sit for an hour at a time and for four hours during the workday," in describing appellant's physical limitations. The district court found that even this lessened level of physical ability was not supported by substantial evidence in the record

5

Since we have determined that appellant is unable to perform the skilled jobs of electric motor repair person and electronic assembler, the record establishes that appellant does not have transferable skills to any jobs that he is able to perform