Opinion
Civil No. 00-1198-HA
June 12, 2001
Attorney for Plaintiff:
ALAN STUART GRAF, Swanson, Thomas Coon, Portland, Oregon
Attorneys for Defendant:
MICHAEL MOSMAN, United States Attorney, WILLIAM W. YOUNGMAN, Assistant United States Attorney, Portland, Oregon
AMY M. GILBROUGH, Special Assistant United States Attorney, Seattle, Washington
OPINION AND ORDER
Plaintiff Harry Daniels brings this action seeking judicial review of the Commissioner's decision denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and supplemental security income (SSI) payments under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (collectively "the Act"). This court has jurisdiction under 42 U.S.C. § 405(g) and 1383(c)(3). For the reasons that follow, the Commissioner's decision is reversed, and this case is remanded for calculation and payment of benefits.
I. Administrative and Procedural History
Daniels filed his present applications for SSI payments and DIB on June 7, 1996 with a protective filing date of May 3, 1996. Tr. 131-34. The applications were denied initially and on reconsideration. An Administrative Law Judge (ALJ) conducted a hearing on April 22, 1998. Tr. 40-87. The ALJ issued his decision on May 15, 1998 finding that Daniels retained the residual functional capacity to return to work he had performed in the past and was not disabled within the meaning of the Act. Tr. 22-33. The Appeals Council denied Daniels' request for review, and he filed a complaint in this court.
"Tr." refers to the certified copy of the administrative transcript submitted by Defendant pursuant to 42 U.S.C. § 405(g).
II. Legal Standards
A person may be eligible for DIB payments if he or she has contributed to the Social Security program and suffers from a physical or mental disability. 42 U.S.C. § 423(a)(1).
A DIB applicant must meet several requirements in addition to being disabled. 20 C.F.R. § 404.315. One is that he must be insured, as defined in subsection 42 U.S.C. § 423(c)(1) and the applicable regulations, 20 C.F.R. § 404.110, 404.131. The ALJ ruled that Daniels had acquired coverage through at least December 31, 1999. Tr. 31. That ruling is not challenged.
Persons who are age 65 or over, blind, or disabled, and who are without insured status under the Act may be eligible for SSI payments. 42 U.S.C. § 1382(a).
A claimant is disabled for purposes of the Act if he or she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A person can be disabled for these purposes only if his or her impairment is "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423 (d)(2)(A), 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for DIB or SSI payments because he or she is disabled. 20 C.F.R. § 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999) (DIB); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989) (SSI). First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity". If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the Commissioner proceeds to step two and determines whether the claimant has a medically severe impairment as defined in the Act. 20 C.F.R. § 404.1520(a), 416.920(a). If the claimant does not, disability benefits are denied. 20 C.F.R. § 404.1520(c), 416.920(c).
If the impairment is severe, the Commissioner proceeds to the third step to determine whether the impairment is equivalent to any of a number of impairments that the Commissioner acknowledges to be so severe they are presumed to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d), 416.920(d). These are listed in 20 C.F.R. pt. 404 subpt. P app. 1 (Listing of Impairments). If the claimant's condition meets or equals one in the Listing of Impairments, the claimant is presumed conclusively to be disabled.
If the impairment is not one that is presumed to be disabling, the Commissioner proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant has performed in the past. If the claimant is able to perform his or her former work, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. § 404.1520(e), 416.920(e).
If the claimant is unable to perform work which he or she has performed in the past, the Commissioner proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his or her age, education, and work experience. The claimant is entitled to disability benefits if he or she is not able to perform any other work. 20 C.F.R. § 404.1520(f), 416.920(f).
The claimant bears the initial burden of establishing his disability. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996). In the five-step framework used by the Commissioner, the claimant has the burden of proof as to steps one through four. In step five, the burden shifts to the Commissioner to show there are a significant number of jobs in the national economy that the claimant can perform given his or her residual functional capacity and age, education and work experience. Id. If the Commissioner cannot meet this burden, the claimant is "disabled" and must prevail on his claim. 20 C.F.R. § 404.1520(f)(1), 416.920(f)(1).
The Commissioner also has an affirmative duty to develop the record. 20 C.F.R. § 404.1512(d), 416.912(d); DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). To that extent, the proceedings are not adversarial, and the Commissioner shares the burden of proof at all stages. DeLorme, 924 F.2d at 849; Tackett v. Apfel, 180 F.3d at 1098 n. 3. The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Tackett v. Apfel, 180 F.3d at 1098. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion; it is more than a mere scintilla but less than a preponderance of the evidence. Andrews, 53 F.3d at 1039; Tackett, 180 F.3d at 1098. The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Andrews, 53 F.3d at 1039; Tackett, 180 F.3d at 1098. The Commissioner, not the reviewing court, must resolve conflicts in the evidence, and his decision must be upheld even if the evidence would support either outcome. Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1998). Even if the Commissioner's decision is supported by substantial evidence, it must be set aside if the proper legal standards were not applied in weighing the evidence and in making the decision. Id.
III. Factual Background
A. Daniels' History
Daniels was born July 23, 1963. Tr. 109. He completed the 12th grade and one semester of general college studies. He has received no special formal training. Tr. 209, 217, 291, 389. He lives with his parents, Harry and Virginia Daniels. Tr. 291, 297, 389. He regularly attends a Pentecostal church. Tr. 291. Daniels worked as a hospital food-service assistant for over 14 years. Tr. 45, 199, 209, 217, 291, 389. In that position he regularly performed the duties of dishwashing, cashiering, assisting the cooks, and preparing vegetables. He had supervisory responsibilities on some shifts. Tr. 209, 217. The job required standing or walking for eight hours a day, frequent bending, constant reaching, and frequent lifting of up to 50 pounds. Tr. 210. He was terminated on September 24, 1994 because of poor attendance. Tr. 402. Some years ago, Daniels received a traumatic injury to the left eye while playing basketball. Tr. 326, 388. He has had a continuing history of problems with the eye, including cysts, cataracts, glaucoma, and surgical interventions to treat these maladies. Tr. 47-48, 323-29. Daniels has reported poor vision and persistent pain in his left eye since around 1991. In his application, he claimed he became unable to work because of these impairments on August 31, 1994. Tr. 132.
Glaucoma is a disorder in which elevated fluid pressure in the eyeball damages the optic nerve and causes loss of vision. Normal intraocular pressure measures between 11 and 21 millimeters of mercury (mm Hg.). The Merck Manual of Diagnosis and Therapy, 100-1 (Beers and Berkow eds.,17th ed. 1999).
The record shows that Daniels has had a long history of alcohol dependence and cocaine abuse which caused him to be unreliable in his course of treatment. He asserts that he has stayed clean and sober since receiving six months of residential treatment at Victory Outreach Christian Mens Home in 1996. Tr. 47, 67.
A. Medical Records
The date of Daniels' basketball injury is unclear, but it appears to have been around 1976. He consulted Thomas Lindgren, M.D. at Providence Medical Center (PMC) in March 1987. Dr. Lindgren found a cyst and lens opacity in Daniels' left eye. Daniels had visual acuity of 20/30 in the left eye at that time. In March 1991, Daniels reported to Dr. Lindgren with complaints of pain in his left eye. Daniels' visual acuity had deteriorated to 20/400 with marked enlargement of the cyst. Dr. Lindgren referred Daniels to the ophthalmology department at the Oregon Health Sciences University (OHSU). Daniels began taking several medications in eye drop form, including pressure reducing medications for glaucoma. Tr. 313, 324.
In April 1991, Drs. Robertson, Swan, and Fraunfelder of OHSU examined Daniels and prepared treatment notes. Tr. 323-26. They diagnosed a massive intraocular cyst in the anterior chamber of Daniels' left eye extending into the posterior chamber. In a surgical procedure, Dr. Fraunfelder inserted a needle and aspirated fluid from the cyst. He found cataract damage and adherence of the iris to the lens causing distortion of the pupil. The doctors proposed a treatment plan in which they would inject trichloroacetic acid into the cyst in a staged procedure. Id.
In July 1991, Dr. Fraunfelder aspirated the cyst and injected trichloroacetic acid. This procedure collapsed the cyst but destroyed the epithelial (outer) lining of the cornea. The cyst remained collapsed, but Daniels developed an intumescent cataract and cornea edema. The muscle tissue of the iris was drawn toward the temple, distorting the pupil. Id.
In November 1991, Daniels saw Dr. Fraunfelder for pain in the eye. In the following months, he called the clinic seeking treatment for burning, swelling, scratchy sensations, and pain in the eye. However, he repeatedly missed appointments. On a number of occasions Daniels' doctors discussed with him the severity of his ocular condition and the poor prognosis. They told him he was likely to lose vision in his left eye completely. Tr. 354-380.
In July 1992, Daniels reported to PMC complaining of a sudden onset of severe pain in the left eye and drainage he described as "hemorrhaging." Daniels said he had lost all vision in his left eye, except that he could distinguish light and shadows. Tr. 305. On October 2, Larry Rich, M.D., noted that Daniels' cataract was starting to hypermature, making removal necessary.
October 17, 1992, Dr. Lindgren found a cloudy cornea, scar tissue causing retraction of the iris, an opaque white cataract causing abnormal attachment of the iris to the endothelium (innermost) layer of the cornea, and a peripheral cyst in the anterior chamber of Daniels' left eye. Dr. Lindgren performed a corrective surgery in which he extracted cataract scar tissue, made corrective cuts in scar tissue of the iris, freed the attachment to the endothelium, removed fragments of the ocular lens, and implanted an artificial posterior chamber lens. He was not able to remove a fibrous adhesive plaque found in the eye. Tr. 299-305.
In February 1993, Dr. Rich reported that Daniels was healing satisfactorily and that his visual acuity was improving. In June 1993, treatment notes reflect Daniels had a left eye visual acuity of 20/200 and some corneal swelling. On July 6, 1993, Dr. Rich surgically removed Daniels' damaged cornea and transplanted a donor cornea. The corneal transplant slowly healed with some incipient graft rejection found in September and October 1993. On October 23, 1993, the graft had stabilized, and Daniels' sutures were removed. There are indications that Daniels then experienced additional graft rejection over the ensuing months.
In January 1995, Dr. Rich measured Daniels for optical correction. He found that Daniels had visual acuity of 20/200 in his left eye correctable to 20/40 with contact lenses. Dr. Rich prescribed contact lenses, but Daniels' insurance would not cover them. Dr. Rich did not see Daniels again. In June 1995, Daniels wrote a letter to Dr. Rich reporting that he was completely blind in his left eye. Tr. 328-380.
In July 1995 and April 1996, Daniels saw Roger Saulson, M.D., at East Portland Eye Clinic. Dr. Saulson reported that Daniels' visual acuity in the right eye was 20/25 to 20/30. With his left eye he could only count fingers at two feet. Dr. Saulson opined that Daniels would be able to perform most tasks and would not be significantly limited in work activities. His visual limitations would preclude only occupations that require good depth perception, such as driving large machinery. Tr. 381-87.
In November 1996, Daniels received treatment from Grant Lindquist, M.D. Dr. Lindquist wrote that Daniels was suffering from bullous keratopathy, a condition resulting from deterioration of the corneal graft from his transplant surgery. Dr. Lindquist said the symptoms of this condition included "severe pain and irritation in the eye." He opined that the severity of the symptoms would make it difficult for Daniels to work and that these symptoms would persist until Daniels had a repeat corneal transplant to correct the problem. He recommended a period of disability until Daniels' eye was corrected. Tr. 392-93, 414.
In December 1997, Daniels saw John Samples, M.D. of OHSU. Dr. Samples found visual acuity in the right eye of 20/30. With his left eye, Daniels could make out hand movement only and had no near vision. Dr. Samples found the graft from Daniels' corneal transplant was swollen and the optic nerve quite damaged from glaucoma. However, on a potential acuity meter, Daniels obtained results that were good enough to warrant further treatment. Dr. Samples said Daniels needed a trabeculectomy (filtration surgery) which is a surgical procedure for relieving the high fluid pressure in an eye with glaucoma by permitting drainage. Daniels was taking several medications in eye drops, including Pred Forte every two hours, Alphagan three times a day, Timoptic twice a day, and Xalatan at bed time. The filtration surgery was performed on February 4, 1998. Tr. 55, 405-410.
On March 28, 1998, Dr. Samples wrote to Daniels' counsel regarding Daniels' history of glaucoma. He said the throbbing pain Daniels felt had several etiologies. The pain was caused partly by the elevated eye fluid pressure itself. Secondarily, the elevated pressure caused painful blisters to form on the surface of the cornea. Dr. Samples opined that it was not reasonable to expect Daniels to be able to undertake full time employment while his corneal surface was blistered. He opined further that Daniels might be able to work if his eye fluid pressure and secondarily, his corneal blistering, could be controlled. Tr. 403.
In April and May 1998, Dr. Lindquist also wrote to Daniels' counsel. Dr. Lindquist confirmed that Daniels had been experiencing pain and ocular discomfort in his left eye for much of the time over the previous few years. Dr. Lindquist opined that the pain and discomfort was probably disabling to some extent. He opined that Daniels would be disabled during the course of his glaucoma filtration and repeat corneal transplant surgeries and for several months afterwards. He did not state an opinion regarding long range disability, but said that many people with similar eye problems are able to work. Dr. Lindquist wrote that patients recovering from filtration surgery typically are permitted to lift five to ten pounds after two to three weeks, ten pounds after six weeks, and back to full activity after 12 weeks. They are admonished not to do any extremely heavy lifting. Finally, Dr. Lindquist confirmed that in humans, both eyes move together. Therefore, Daniels' use of his good right eye would cause the irritation and pain associated with movement of his left eye. Tr. 412-17.
After his hearing before the ALJ, Daniels submitted additional medical evidence to the Appeals Council. On December 2, 1999, Dr. Samples referred Daniels to Joseph Robertson, M.D. Dr. Samples wrote that filtration surgery had not fully resolved Daniels' glaucoma symptoms because of retained lens material in the eye that caused chronic inflammation. He suggested surgery to remove the retained lens material and possible implantation of a tube shunt with a valve for better drainage of intraocular fluid. Tr. 19.
Dr. Robertson examined Daniels on December 14 and found visual acuity of 20/25 in the right eye and count fingers at six inches in the left. The left eye intraocular pressure was in the glaucoma range, at 25 mm Hg. In January 2000, Dr. Robertson performed vitrectomy surgery. This involved inserting three instruments into the posterior chamber of the eye. Dr. Robertson removed retained lens cortex material, treated the inferior half of the eye by laser, and apparently installed an Ahmed valve-type tube shunt for drainage. One day after the surgery, Daniels had intraocular pressure of 7 mm Hg. and could see hand movement. One week after surgery, the intraocular pressure had increased to 12 mm Hg. and visual acuity with correction was counting fingers. Three weeks after surgery, the pressure in his left eye had increased to 26 mm Hg., and his visual acuity had not improved. Dr. Robertson prescribed a pressure lowering eye drop medication and referred Daniels back to Dr. Samples for further evaluation. Tr. 12-19.
Meanwhile, Daniels also had a history of treatment for substance dependence. He completed an addiction treatment program at Providence Medical Center on February 14, 1995. The program included two to three weeks of residential treatment followed by six weeks of out patient therapy. At the beginning of the program, Daniels reported heavy daily use of alcohol. He reported smoking cocaine up to four times a week and frequently using cannabis. Treatment doctors wrote that he had lost his job because of chronic absenteeism related to substance abuse problems. Tr. 274-297. In his hearing testimony, Daniels admitted chronic absenteeism, but attributed it to medical problems unrelated to substance addiction. Tr. 64, 389.
On September 28, 1996, Lyle Christopherson, D.O. conducted a comprehensive psychiatric examination of Daniels. He described Daniels as a binge alcoholic who reported being sober for about two months. Daniels said he had last smoked crack cocaine two to three weeks before the interview. He told Dr. Christopherson that he attended Alcoholics Anonymous and Narcotics Anonymous meetings but struggled with sobriety. Dr. Christopherson diagnosed alcohol and crack cocaine dependence and possible psychotic disorder or substance induced psychosis. He gave Daniels a GAF score of 45 indicating serious impairment of social or occupational functioning. Tr. 391.
GAF refers to Global Assessment of Functioning. The GAF scale is a means of reporting the clinician's judgment of the individual's overall level of functioning on a scale of 1 to 100. Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV), 30-32.
At the hearing, Daniels testified that he completed a six-month residential treatment program at Victory Outreach Christian Mens Home during 1996 and had been clean and sober since that time. Tr. 45-74. Daniels abandoned any claim of mental impairment at the hearing.
C. Daniels' Testimony
Daniels described his surgical history and said that he had constant pain in his left eye. He said it always felt like he had sand in his eye. When asked about the severity of the pain, Daniels said it was about a seven or eight on a scale of one to ten without pain medication, and about five when he took Tylenol III. He said the pain was worse in the mornings and evenings. He also found that wind and weather aggravated the pain. Tr. 45-74.
Daniels said that normal use of his good right eye caused pain associated with movement of his left eye. He said that lifting and bending elevated his eye-fluid pressure and caused increased pain. He said that even without physical exertion, his intraocular pressure measurements ranged between 26 and 40 mm Hg. Id.
Daniels testified that the pain in his eye made it very difficult to concentrate and affected his judgment. He said it was painful to read and watch television. He said when his left eye was particularly painful, it helped to close both eyes. Focusing his right eye caused increased and sharper pain in the left. He said on bad days he would lay down with his eyes closed for eight hours or more. Id.
Regarding daily activities, Daniels testified that he went to church every Sunday when he "felt okay" and regularly visited Victory Outreach to attend 12 step meetings and socialize. He testified that he tried to read the Bible every day and would read it for two hours daily if he could. He had not been able to do this since his last surgery. Id.
D. Vocational Expert Testimon
The ALJ subpoenaed a vocational expert (VE). She said Daniels' former employment included unskilled to semi-skilled jobs with physical requirements in the light to medium range. The cashiering aspects of his job might have fallen into the sedentary category if performed while seated. Tr. 74-78.
The ALJ posed a series of hypotheticals. First, he asked the VE to assume a hypothetical person with no exertional limitations. The hypothetical person could maintain a limited but satisfactory level of concentration and attention, a limited but satisfactory ability to deal with the public, and would be precluded from jobs that required good depth perception or binocular vision. The VE opined that such a person would be able to perform all of the tasks Daniels had performed in his employment as a food service assistant. Id.
The ALJ then added that the hypothetical person could, at a maximum, meet the exertional demands of light work. The VE opined that such a person could perform the cashiering, cafeteria attendant, and short order cooking jobs Daniels had done, but not the cook's helper or kitchen helper functions. Id.
The ALJ added the hypothetical limitation of missing up to two days per month because of pain or other symptoms or for medical appointments. The VE opined that in the current labor market, such a worker would be able to keep his job if he called in responsibly to say he could not be present. The VE said this was a borderline situation; if the worker did not call in or missed more than two days per month it would not be acceptable. It would not be acceptable if the labor market became more favorable to employers either. Id.
Finally, the ALJ asked the VE to give full credit to Daniels' testimony. The VE opined that such a person would not be employable because he would have to miss more than two days per month and would not always be able to perform even sedentary tasks. Id.
On cross examination, the VE opined that a person who was required to stop eye movements by keeping his eyes closed would not be able to perform his former work. If the person had to stare straight without moving his eye, he might be able to perform some assembly line jobs. If his concentration limitation was increased to marked limitation, he would not be employable. Id.
IV. ALJ Decisions and Plaintiff's Claims of Error
In the regulatory five-step sequential evaluation process, the ALJ made these findings at the respective steps: (1) Daniels had not engaged in substantial gainful activity after the date he claimed his disability caused him to stop working; (2) he had an impairment of the left eye that met the regulatory definition of "severe"; (3) he had no impairment that met or equaled in severity any in the regulatory Listing of Impairments; (4) Daniels retained the residual functional capacity to perform light work with certain limitations and could return to his past work as a cashier. The ALJ did not reach the fifth and final step of the sequential process.
Daniels claims the Commissioner's decision must be overturned because the ALJ (1) improperly rejected Daniels' subjective symptom testimony without clear and convincing reasons, and (2) improperly assessed the exertional requirements of his past food service assistant position.
V. Discussion
A. Rejection of Daniels' Subjective Symptom Testimony
In evaluating a claimant's testimony regarding subjective symptoms, the ALJ performs a two-step analysis. First, the ALJ must determine whether the claimant has produced objective medical evidence of an underlying impairment which could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(a), 416.929(a); Smolen v. Chater, 80 F.3d at 1281-82; Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986). The threshold test requires only a reasonable inference that the medically shown impairment could cause the subjective symptom. Smolen, 80 F.3d at 1282. In addition, the claimant need not show that his impairment could reasonably be expected to cause the severity of the symptom he has alleged; he need only show that it could reasonably have caused some degree of the symptom. Id; see also Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989).
If there is medical evidence that meets this threshold and no affirmative evidence of malingering, the second part of the analysis requires the ALJ to assess the credibility of the claimant regarding the severity of symptoms. The ALJ can reject the claimant's testimony about his limitations only by offering clear and convincing reasons supported by specific facts in the record that demonstrate an objective basis for his disbelief. Regennitter v. Commissioner, 166 F.3d at 1296-97; Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Dodrill v. Shalala, 12 F.3d at 918. General findings are insufficient. The ALJ must identify specific testimony that is not credible and offer specific, cogent reasons for disbelieving it. Lester, 81 F.3d at 834; Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Dodrill, 12 F.3d at 918. The ALJ cannot reject a claimant's symptom testimony solely because it is not fully corroborated by objective medical findings. Cotton v. Bowen, 799 F.2d at 1407.
The record contains objective medical evidence that Daniels suffers from glaucoma, cataract damage, trauma related damage, and damage from multiple surgeries. These impairments have caused him to lose vision in his left eye. The record shows that persistent elevated pressure in his left eye can and does cause pain from several etiologies. This pain continues because his elevated pressure and secondary conditions have not been resolved. The ALJ did not specify any affirmative evidence of malingering in the record, and none has been identified in the defendant's brief. Having found objective medical evidence of an underlying impairment and no affirmative evidence of malingering, the ALJ was required to assess Daniel's credibility based on:
(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. . . The ALJ must also consider the claimant's work record and the observations of treating and examining physicians and other third parties.
Smolen, 80 F.3d at 1284 (citations omitted). The ALJ should apply these factors in setting forth the reasons for discrediting a claimant's testimony, but the Ninth Circuit requires the ALJ to "state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen, 80 F.3d at 1284. He must offer specific, "clear and convincing" reasons for rejecting the claimant's testimony about the severity of symptoms.
The ALJ stated five reasons for finding Daniels' testimony not entirely credible. First, the ALJ ruled Daniels' testimony did "not support the degree of pain and limitations alleged" because it was inconsistent with testimony and reports to Disability Determination Services ("DDS") describing his activities of daily living. Specifically, the ALJ identified testimony that Daniels lays down for eight hours a day and has difficulty concentrating. He found this testimony inconsistent with reported activities of attending church on Sundays, visiting Victory Outreach, daily Bible reading, jogging, and playing basketball and pool.
DDS is a federally-funded agency of the Oregon Vocational Rehabilitation Division (VRD), Department of Human Services (DHS). It is the state agency that makes eligibility determinations on behalf, and under the supervision of, the Social Security Administration pursuant to 42 U.S.C. § 421(a) and 20 C.F.R. § 404.1503.
Daniels' symptom testimony was that he could do nothing to relieve the pain in his eye except to "just take it easy, lie down." He testified that he has good days and bad days and on bad days, he lays down most of the day, "probably about eight or more" hours. His description of waxing and waning pain is consistent with the medical record which shows his intraocular pressure ranges between borderline glaucoma and extremely high pressure. The pain etiologies described by Dr. Samples suggest changes in the severity of pain concomitant with changes in pressure. Daniels said that when the pain was particularly bad, he had to close both his eyes or stare straight ahead without focusing. Daniels testified: "It is really hard to concentrate. . . If I was to try to do some reading, I mean, my judgment is really off". Tr. 56-62.
The court is unable to discern any basis for the ALJ's conclusion that regular church attendance was inconsistent with the described symptoms. In addition, the description of Daniels' daily Bible readings does not provide sufficient grounds to reject his testimony. Although sometimes he is able to read for up to two hours, on bad days he is limited to rereading familiar passages for shorter periods. He should not be penalized for attempting to continue his normal practices. See Reddick v. Chater, 157 F.3d at 722 (disability claimants should not be penalized for attempting to lead normal lives despite their limitations). This is particularly true where the activities have no relation to the rigors of a work setting.
Daniels' report to DDS is somewhat more troubling because the activities described (basketball, pool, and jogging) require physical exertion and hand-eye coordination; however, this report is insufficient to undermine Daniels' testimony. The report was made two years before the hearing. The medical evidence shows increasing pressure during that period, and Daniels testified that the severity of pain had increased during that time. In addition, a third party report of daily activities from the same date lists basketball and jogging as pastimes that Daniels was no longer able to do. While this inconsistency diminishes Daniels' credibility to some extent, it does not meet the "clear and convincing standard" required by the Ninth Circuit for discrediting Daniels' subjective symptom testimony. Regennitter, 166 F.3d at 1296-97; Lester v. Chater, 81 F.3d at 834; Dodrill, 12 F.3d at 918.
Second, the ALJ discredited Daniels' testimony because medical evidence showed he retained good vision with his right eye. The ALJ found this inconsistent with Daniels' testimony regarding his right eye function. Daniels testified that he did not agree with medical evidence that his right eye vision was "good" because "its not 20/20". The ALJ found that his right eye visual acuity was somewhat worse than 20/30. Accordingly, Daniels' testimony was actually consistent with the medical evidence. Moreover, the ALJ's second reason is not clear and convincing because Daniels' testimony was accurate, because he makes no claim of disability based on his right eye function and because his right eye visual acuity has no bearing on the severity of pain caused by glaucoma and secondary corneal blistering in his left eye. The ALJ cited the opinion of Dr. Saulson who said that Daniels' vision would preclude only occupations that require good depth perception and binocular vision; however, Dr. Saulson addressed only limitations caused by visual deficit. He offered no opinion on the limitations imposed by glaucoma induced pain.
The third reason given by the ALJ was Daniels' poor history of pursuing treatment for his condition. In many cases such behavior is an indication that symptoms may not be as severe as described, but in this case, it appears simply to reflect Daniels' former substance abuse. He missed the bulk of his medical appointments when he was under the influence of alcohol. The record reflects that after gaining sobriety, he has been diligent with his appointments. Therefore, his earlier absences do not diminish the credibility of his testimony regarding the severity of his eye problems.
Fourth, the ALJ discredited Daniels' testimony because he claimed his medications caused nausea. Daniels was asked about the side effects of his medications, and he said "it upsets my stomach and it makes me feel really-it causes a lot of nausea and I get headaches." The ALJ apparently believed this was inconsistent with a letter from Dr. Samples which said nausea was an unusual side effect for persons in Daniels' age group. However, far from precluding nausea as a possible side effect, Dr. Samples provided Daniels with instructions for alleviating it. In any event, Daniels does not claim impairment based on nausea, headaches, or the inability to take his medications.
The fifth and final reason given by the ALJ for discrediting Daniels' testimony was that "no treating or examining physician has stated Mr. Daniels left eye impairment would render him disabled for more than short intervals of time, e.g. after his eye surgeries." This court reads the opinions of Dr. Samples and Dr. Lindquist differently. Dr. Lindquist opined that Daniels' symptoms included severe pain and irritation of the eye. He said the symptoms were disabling, but temporary. Regarding the duration, he opined that these symptoms would persist until Daniels received another corneal transplant. There is no evidence in the record such a procedure has been performed.
Dr. Samples opined that Daniels suffered from disabling pain caused by several etiologies related to his intraocular fluid pressure. He said that Daniels would be able to work after his fluid pressure was controlled and secondary corneal blistering was resolved. The record shows that all medical interventions to date have been unsuccessful at controlling Daniels' intraocular pressure. This court agrees with the ALJ that Daniels' condition is temporary.
However, the requisites for bringing it to resolution have not yet occurred. After fully and fairly considering all the evidence regarding Daniels' testimony, his medical records and his activities, this court is compelled to determine that the ALJ's credibility findings and interpretation of the record were not supported by substantial evidence. See Reddick, 157 F.3d at 723. The ALJ's reasons donot meet the clear and convincing standard required to support his decision to discredit Daniels' testimony. Smolen, 80 F.3d at 1284.
B. Remedy
It is within this court's discretion to reverse the ALJ's decision and remand for further administrative proceedings or to reverse and remand for an award of benefits. Reddick, 157 F.3d at 728. It is appropriate to remand for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 121 S.Ct. 628 (2000), quoting Smolen, 80 F.3d at 1292. See also Lester v. Chater, 81 F.3d at 834 (crediting improperly rejected testimony as a matter of law).
Here the vocational expert testified that if Daniels' subjective symptom testimony were fully credited, he would be unemployable. Tr. 78. No issues, therefore, remain to be resolved, and a finding of disability must be made. It is not necessary to reach Daniels' other contentions. The Court recognizes that medical opinions raise doubts about Daniels' continuing disability. The Court will not remand for further development of the record on the question of a closed period of disability. That question is left for determination by the Commissioner in the periodic review required by 20 C.F.R. § 404.1594 and 416.994.
IV. Conclusion
The record is fully developed and further administrative proceedings would serve no useful purpose. Giving the record the effect required by the applicable standards of law, Daniels has shown he is unable to engage in substantial gainful activity by reason of his impairments.
This case is remanded to the Commissioner for the calculation and award of benefits consistent with this opinion.
IT IS SO ORDERED.