Opinion
DC No. 97-06001-ALH
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted May 7, 1999.
Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding.
Before CANBY and T.G. NELSON, Circuit Judges, and FOGEL, District Judge.
The Honorable Jeremy Fogel, United States District Judge for the Northern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
Judith Gage appeals the district court's order affirming the final decision of the Commissioner of Social Security that found Gage not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., or supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381 et seq.
On appeal, Gage contends that the administrative law judge ("ALJ") improperly (1) rejected her subjective symptom testimony; (2) failed to credit opinions of her treating physician and specialist; (3) rejected testimony of lay witnesses; and (4) found that she was capable of performing light work other than her past relevant work. We have jurisdiction under 28 U.S.C. § 1291. We reverse the judgment of the district court and remand with instructions to remand the case to the Secretary for an immediate award of benefits.
I
Before the ALJ, Gage testified that her activities were severely restricted by her physical and mental condition. She could sleep only a few hours per night because of pain, primarily in her back and leg. Because of the lack of sleep and pain, she had to lie down on and off during the day. Gage testified that she could not sit or stand for more than fifteen minutes without having to change positions; that she could walk only half a block without stopping, and used a cane. She had trouble getting into and out of the bathtub, could not carry groceries (although she could lift ten pounds), and had difficulty maintaining concentration. She rarely went out, had lost most of her friends, and had suicidal thoughts.
The ALJ discredited this and other testimony of Gage regarding her limitations. The ALJ was required to offer "clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996). We conclude that the ALJ's reasons were not clear and convincing.
The ALJ stated that examining physicians had reported exaggerated responses by Gage to pressure, and that one had reported excessive moaning and groaning. Neither of these physicians took Gage's diagnosed depression into account. Nor is there explanation whether "exaggerated" merely meant that Gage was reacting to "excess" pain not substantiated objectively. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1996) (amended opinion) (lack of objective evidence insufficient foundation for finding pain testimony incredible). One physician who examined Gage's hand injury (which is not one of the factors causing her disability) stated that Gage held her hand in an exaggerated position, but when encouraged could relax and move it more normally. This is not evidence that Gage was malingering or attempting to deceive the physician concerning the extent of her injury.
The ALJ also noted that CAT scans, an MRI and an EMG were negative for "serious pathology." There is no dispute among the several physicians, however, that Gage has degenerative disc disease. Her treating physician testified that this condition could cause a considerable amount of pain when vertebrae moved. Gage's treating physician, Dr. Chervenak, and one examining physician, Dr. Lax, noted some bulging at L-5/S-1 in the images, and opined that the nerve into Gage's leg could be irritated. Thus there was objective evidence of conditions that could cause Gage's pain. That the pain was in excess of expectations is not in itself a sufficient reason to discredit Gage's testimony. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986). "[I]t is the very nature of excess pain to be out of proportion to the medical evidence." Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990).
The ALJ referred to a note of the treating physician that Gage injured her hand "while moving a refrigerator." There was no further explanation, and no questioning at the hearing, on this point. It is not clear how the refrigerator was being moved, who was involved, whether it had been placed on wheels, or any other details. The ALJ further stated:
Indeed, the claimant's extensive hobbies, including watching television, reading books, completing puzzle books, and working on latch hook projects, are not consistent with her allegations of extreme pain and lack of concentration secondary to pain.
These hobbies, however, involve nearly an absolute minimum of strength, and can be interrupted at will. They do not transfer easily into an employment environment. See Smolen, 80 F.3d at 1284 n. 7. "Disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity." Smith v. Califano, 637 F.2d 968, 971 (3d Cir.1981). Moreover, evidence was presented that Gage had difficulty concentrating when reading or doing puzzles.
We conclude, therefore, that the ALJ failed to offer clear and convincing reasons for disregarding Gage's pain testimony, especially when that testimony is considered in connection with the other evidence that was presented.
II
Dr. Chervenak, Gage's treating physician, testified that it was her "absolute, 100-percent firm belief" that Gage suffered from a significant amount of real pain. She testified that she had employed several devices to test whether Gage was dissembling and she was convinced that Gage was not. She testified that muscles in Gage's back were in spasm and that pin prick tests on her legs indicated possible nerve involvement. She pointed out that pin prick reaction cannot be faked; it is reflexive. Dr. Chervenak further stated that a bulge at L-5/S-1 shown in Gage's MRI was probably irritating the nerve, or possibly impinging on it. Dr. Chervenak diagnosed degenerative disc disease and fibromyalgia. Gage's pain trigger points were consistent with fibromyalgia. Dr. Chervenak referred Gage for physical therapy, but the therapy was so painful for Gage that it was discontinued in favor of certain home exercises. Dr. Chervenak also diagnosed depression; Gage cried a lot but the crying decreased after time and with medication, although Gage remained significantly depressed. Dr. Chervenak testified that Gage could sit for fifteen minutes at a time, by Dr. Chervenak's observation and Gage's report, and that she could stand for fifteen minutes and carry or lift ten pounds, by Gage's report. The latter limitation, however, was consistent with Dr. Chervenak's observations of Gage's flexibility and muscle weakness.
The ALJ rejected the testimony of Dr. Chervenak, at least in crucial part. We recognize that the testimony of a treating physician is not conclusive. See,e.g., Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir.1989). But the testimony of a treating physician, if uncontradicted, can be rejected only for "clear and convincing" reasons; if contradicted by the opinion of another physician, then it may be rejected for "specific and legitimate" reasons. See,e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998). By either standard, we conclude that the ALJ's reasons were insufficient.
The ALJ did not credit Dr. Chervenak's testimony regarding Gage's sitting, standing, carrying or walking ability because it was based on Gage's own statements. If supported by the record, that reason would be sufficient if the ALJ had acted properly in rejecting Gage's own testimony. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989). We have already held, however, that Gage's testimony was improperly rejected. The treating physician's testimony accordingly cannot be rejected merely because it is based on Gage's statements. See Reddick, 157 F.3d at 725. Moreover, Dr. Chervenak's evaluations of Gage's condition were based in part on her own observations.
In the transcript, the ALJ also expresses dissatisfaction with Dr. Chervenak's testimony because it reflected standards of disability that counsel had probably gone over with her prior to her testimony. Even if so, that fact would not be a proper ground upon which to reject Dr. Chervenak's testimony. See Lester v. Chater, 81 F.3d 821, 832 (9th Cir.1996) (amended opinion).
The ALJ also stated that Dr. Chervenak's findings were contradicted by that of other examining physicians, but this statement is only partly true at best. Dr. Lax agreed that Gage's pain was real. Other examining physicians that reported "exaggerated" responses were in part reporting responses greater than expected from the clinical evidence, which is the case with excess pain. Two reported a psychological overlay, but did not opine further on the effect of that psychological condition. None of the other physicians directly contradicted Dr. Chervenak's opinion of Gage's physical capacities; most of them simply evaluated the need for surgery and found none.
The government referred Gage to Dr. Smolen, a psychiatrist, who found Gage to be suffering from major depression. Antidepressants did not seem to have helped. Gage cried frequently during the interview. Dr. Smolen opined that Gage would be wholly unable to deal with work stresses or to behave in an emotionally stable manner, and would be able to deal only fairly with the public and with supervisors, and would only fairly be able to maintain concentration, carry out complex job instruction and maintain personal appearance. Gage's "ability to deal with the public, interact with supervisors, [and] deal with work stresses would be seriously limited."
The ALJ did not expressly reject Dr. Smolen's testimony, but ruled inconsistently with it. The ALJ noted that Dr. Smolen's finding of depression was inconsistent with Dr. Chervenak's because Dr. Chervenak had related that medication improved the depression so that Gage cried less frequently. There is no real inconsistency, however; Dr. Chervenak was of the opinion that Gage remained seriously depressed and she expressed agreement with Dr. Smolen's report.
It is clear, however, that the ALJ did not accept Dr. Smolen's opinion in its entirety, because the vocational expert testified that, if Gage had no ability to handle stress and no ability to maintain emotional stability, as Dr. Smolen had opined, then there are no jobs in the national economy that Gage could perform. The ALJ gave no other reasons than the purported inconsistency for disregarding Dr. Smolen's opinion.
We conclude, therefore, that the ALJ did not give sufficient reasons, supported by the record, for disregarding the testimony of either the treating physician, Dr. Chervenak, or the examining psychiatrist, Dr. Smolen.
III
Two lay witnesses testified for Gage. Gage's daughter Sharla testified that she has to carry heavy objects, such as groceries, for Gage and that Gage has difficulty sitting, standing, or lying down for extended periods of time. She also has difficulty concentrating. Gage has almost no friends and cries all the time.
The ALJ stated that he accepted Sharla's testimony and included it in his calculation of Gage's residual functional capacity. That calculation, however, included an ability of Gage to do light work, which includes lifting up to twenty pounds. See 20 C.F.R. §§ 404 .1567(b), 416.967(b). Nothing in Sharla's testimony supports that capacity.
Louise Carter, a friend who had known Gage since Gage was eight years old, also testified. She had stayed with Gage and Gage could not sleep well at all. Gage seemed to be in pain and often lost track of her train of thought. Carter had sometimes walked in on Gage without knocking and had seen Gage struggling with her pain when she did not know she was being observed. Gage had trouble sitting still.
The ALJ stated that this testimony was of little weight because it was "based primarily on the claimant's self-reports and her behavior, i.e., observed pain." The ALJ said that both the self-reports and the behavior were "unreliable." As we have said, however:
An eyewitness can often tell whether someone is suffering or merely malingering. While this is particularly true of witnesses who view the claimant on a daily basis, the testimony of those who see the claimant less often still carries some weight. If the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness.
Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993). Thus the testimony of such lay witnesses should not be disregarded simply because some of their information is derived from the claimant's statements. See id. at 918-19. Here it was.
IV
The ALJ's errors in rejecting in crucial part the testimony of Gage, Dr. Chervenak, and Dr. Smolen adversely affected his finding of no disability. His hypothetical to the vocational expert posited an ability to do light work, and did not posit limits of fifteen minutes sitting or standing, or one half-block of uninterrupted walking. Although the Secretary argues that Dr. Chervenak's statement of Gage's physical limitations was contradicted by other physicians, the statement of limitations itself was not. There were some inconsistencies, but the record does not reflect any physician's opining that Gage could carry twenty pounds, or ten pounds frequently, on a sustained work-day basis. See 20 C.F.R. § 404.1567(b) (defining light work).
When a treating physician's testimony or the claimant's excess pain testimony is improperly discredited, we will accept it as true for purposes of determining disability. See Reddick v. Chater, 157 F.3d 715, 728 (9th Cir.1998); Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988). Under that approach, it is clear that a finding of disability is required and that any further proceedings before the Secretary on that issue would be futile. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996). The ALJ did not even pose to the vocational expert a hypothetical based on the limitations set forth in Gage's or Dr. Chervenak's testimony, because he deemed it clear that under those limitations there would be no jobs that Gage could perform. When Gage's attorney asked a question based on the two narrowest limitations of Dr. Smolen's testimony-no ability to deal with stress and no ability to maintain emotional stability-the vocational expert said there would be no jobs available. On this record, therefore, a finding of disability is required. See id . We accordingly reverse the decision of the district court with instructions that the case be remanded to the Secretary for a determination of benefits.
REVERSED AND REMANDED, with instructions.