Opinion
No. 02-4928-SC.
July 10, 2003.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND REMANDING ACTION FOR FURTHER PROCEEDINGS
I. INTRODUCTION
Claimant Eric Schlossberg ("Claimant") has moved for summary judgment on his action seeking review of the Commissioner of Social Security's final decision denying his claim for Social Security disability benefits. Defendant Jo Anne Barnhart ("Defendant") has cross-motioned for summary judgment in her favor. For the reasons set forth below, the court remands the case for further administrative proceedings.
II. BACKGROUND
In January, 1998, Claimant filed a claim for disability benefits, alleging a disability that began on August 2, 1997. He alleged chronic severe pain and dysfunction involving his back, neck, hands and arms. His claim was denied, and he appealed. On appeal, he amended his application to allege a closed period of disability from August 2, 1997 to November 30, 1999.
On January 24, 2001, an administrative law judge ("the ALJ") denied Claimant's appeal. The ALJ held that Claimant suffered from a severe medically determinable physical impairment of bilateral, thoracic outlet syndrome with tendinitis in both shoulders. The ALJ found, however, that Claimant's ailment had not prevented him from seeking work during the alleged period of disability. The ALJ reached this conclusion based partly upon his expressly stated conclusion that Claimant's statements about his subjective symptoms, and the effect of those symptoms upon his functional capability, lacked credibility. The ALJ also relied on a profile of Claimant's functional capacity that incorporated the findings of some, but not all, of the physicians who examined Claimant. The ALJ concluded that Claimant could have worked in existing jobs despite his impairment and therefore was not under a "disability" as defined in the Social Security Act.
Claimant filed a request for Appeals Council review and was denied. He then filed this suit. He argues that the ALJ erred by disregarding his subjective testimony without providing clear and convincing reasons for doing so and by disregarding the opinion of one of his examining physicians. He asks that the Court order payment of benefits. Defendant argues that the ALJ committed no error and seeks summary judgment in her favor.
III. LEGAL STANDARD
This Court may set aside an ALJ's decision if it is based on an incorrect application of the law or is not supported by substantial evidence. "Substantial evidence" is the relevant evidence which a reasonable person might accept as adequate to support the ALJ's conclusion. Reddick v. Chater, 157 F.3d 715 at 720 (9th Cir. 1998). If the evidence can reasonably support either affirming or reversing the ALJ's decision, this Court may not substitute its own decision for the ALJ's decision. Id. at 720-21.
In order to obtain benefits for a past closed period, a claimant must show that a medically determinable physical or mental impairment prevented him, for a continuous period of at least 12 months, from engaging in a substantial gainful activity. 42 U.S.C. § 423(d)(1)(a). An ALJ must use a five-step process to determine whether a claimant is eligible for disability benefits. Reddick, 157 F.3d at 721. In this action, only the ALJ's performance of the fifth step of the inquiry, which involves determining whether the claimant's impairment would prevent performing "other substantial gainful work that exists in the national economy," is at issue.Reddick, 157 F.3d at 721.
"In step one, the Secretary determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. In step two, the Secretary determines whether the claimant has a `medically severe impairment or combination of impairments,' as defined in 20 C.F.R. § 404.1520(c). If the answer is no, the claimant is not disabled. If the answer is yes, the Secretary proceeds to step three and determines whether the impairment meets or equals a `listed' impairment that the Secretary has acknowledged to be so severe as to preclude substantial gainful activity. If this requirement is met, the claimant is conclusively presumed disabled; if not, the Secretary proceeds to step four. At step four, the Secretary determines whether the claimant can still perform `past relevant work.' If the claimant can perform such work, she is not disabled. If the claimant meets the burden of establishing an inability to perform prior work, the Secretary must show, at step five, that the claimant can perform other substantial gainful work that exists in the national economy." Reddick, 157 F.3d at 721 (internal citations omitted).
A. Evaluating Subjective Symptom Testimony
An ALJ evaluating subjective symptom testimony must perform a two-part analysis. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). First, the "Cotton test" imposes two requirements on the claimant: (1) he must produce objective medical evidence of an impairment or impairments; and (2) he must show that the impairment or combination of impairments could reasonably be expected to produce some degree of the complained-of symptom.Id at 1281-82; Bunnell v. Sullivan, 947 F.2d 341, 344-48 (9th Cir. 1991). If the "Cotton test" is met, the ALJ then may reject the claimant's testimony as to the severity of his symptoms only by providing clear and convincing reasons.Smolen, 80 F.3d at 1281. General findings as to credibility are insufficient; rather, the ALJ must identify which testimony is not credible and what evidence undermines the claimant's complaints. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The ALJ may not discredit the claimant's testimony merely because it is unsupported by objective medical evidence.Bunnell, 947 F.2d at 343.
B. Evaluating Examining Physician Opinions
The ALJ has discretion to determine the credibility of examining physicians. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The opinion of an examining physician, however, cannot be disregarded by the ALJ without "specific and legitimate reasons . . . supported by substantial evidence in the record." Lester, 81 F.3d at 830.
IV. DISCUSSION A. Claimant's Credibility
Claimant testified that he could not work because his pain was too severe. The ALJ disagreed. The ALJ did find, however, and the medical record extensively documents, that Claimant had a medical condition that could be expected to cause pain. Accordingly, the Cotton test was satisfied, and the ALJ could not disregard Claimant's subjective testimony without providing specific reasons for doing so. The ALJ failed to provide such specific reasons.
The ALJ found that Claimant's testimony "was almost totally unsupported by objective corroboration" and therefore lacked credibility. Tr. at 25. Such reasoning, however, is clearly foreclosed by Ninth Circuit precedent; "the adjudicator may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence."Bunnell, 947 F.2d at 346-47. The ALJ provided no other reason for finding Claimant not credible, and he thus erred in failing to either credit or provide specific and legally sufficient reasons for discrediting Claimant's testimony about the degree of his pain.
B. Examining Physician Opinions
The ALJ also erred in failing to provide specific reasons for ignoring the opinion of Dr. Ellis, a private examining physician who concluded that Claimant's symptoms were kept at a mild level solely because he was avoiding almost all potentially aggravating activity. Although the ALJ summarized Dr. Ellis' findings in his opinion, he based his evaluation of Claimant's functional capacity solely on the opinions of three other examining physicians, all of whom concluded that Claimant did have some residual capacity for activity, and provided no reason for ignoring Dr. Ellis' opinion. The opinion of an examining physician cannot be ignored without providing "specific and legitimate reasons . . . supported by substantial evidence in the record." Lester, 81 F.3d at 830. The ALJ erred by failing to provide such reasons.
C. Remedy
This Court has discretion to reverse the ALJ's decision if the record is adequately developed and remand would simply delay payment. If, however, additional proceedings could correct deficiencies in the prior proceeding, remand is appropriate.Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). Here, the result will depend primarily upon an evaluation of Claimant's, credibility, and evaluating credibility is properly the task of the ALJ, not the Court. Likewise, evaluating physician opinions is generally the role of the ALJ. Accordingly, the Court remands this action for further administrative proceedings.
V. CONCLUSION
For the reasons set forth above, Defendant's motion for summary judgment is DENIED, and the case is remanded for further proceedings not inconsistent with this opinion. On remand, should the ALJ again decide to discredit Claimant's testimony regarding his subjective symptoms, he is instructed to provide specific discussion of his reasons for doing so. In addition, if he chooses to disregard the opinion of Dr. Ellis or any other physician, the ALJ is instructed to provide specific reasons for ignoring that opinion.
IT IS SO ORDERED.