Opinion
Civil No. 99-998-FR
November 8, 2000
Tim Wilborn, Portland, Oregon, Attorney for Plaintiff.
Kristine Olson, United States Attorney and William W. Youngman, Assistant United States Attorney, Portland, Oregon; Victoria Blais, Special Assistant United States Attorney, Seattle, Washington, Attorneys for Defendant.
JUDGMENT
Based on the record,
The decision of the Commissioner is hereby REVERSED and REMANDED for an award of benefits.
OPINION
The plaintiff, Sharon Gates, brings this action pursuant to 42 U.S.C. § 1383(c)(3) of the Social Security Act (the Act), to obtain judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits under Title II of the Act.
BACKGROUND
On June 30, 1994, Sharon Gates filed an application for a period of disability beginning on May 1, 1987 based upon a combination of impairments, including depression, anxiety and panic attacks, the inability to tolerate stress, back and neck injuries, carpal tunnel syndrome, and low intellectual functioning. Her entitlement to disability benefits under Title II expired on March 31, 1989. The application was denied initially and upon reconsideration. After a timely request for a hearing, Gates, represented by counsel, appeared and testified before Administrative Law Judge Paul L. Gaughen (the ALJ), along with a vocational expert.
On November 5, 1997, the ALJ issued a decision finding that Gates was not disabled within the meaning of the Act prior to March 31, 1989, the date her insured status expired, because she could perform her past relevant work as a sales clerk. TR 30. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ. TR 12-13.
FACTS
Sharon Gates was born on May 11, 1943 and was 45 years old on March 31, 1989 when her insured status expired. Gates has a high school equivalency education. A psychological record compiled in 1962 described her as having low average intellectual functioning and a mental deficiency, idiopathic mild. Her past work history includes assembly line work and work as a sales clerk. Her earnings records show that she earned $523.20 for work for Kelly Services in 1998. In 1983, she earned $2,566.06, which included work as a sales clerk for Hallmark for some period of months.
Gates has a history of psychological problems, including depression and anxiety dating back at least as far as when she was 8 years old. She was placed at Fairview, an institution for mentally retarded children in the State of Oregon, when she was 13 years old. She lived there until she was 18 years old. TR 56. Gates was committed to a psychiatric hospital twice in her early 20's for major depression. She has attempted suicide more than once. TR 58.
Gates has had problems with carpal tunnel symptoms dating back to the 1970's after she worked in a cannery. These symptoms gradually worsened. TR 279. Gates was treated for severe pain in her back and shoulder in 1989.
Gates was treated by Edward F. Clarke, M.D. for mental and physical problems beginning in 1979. On July 20, 1994, Dr. Clarke wrote to the Department of Human Resources, Vocational Rehabilitation, as follows:
Sharon Gates has a host of medical problems none of which is disabling by itself. In aggregate they are disabling however, especially as they are compounded by her panic attacks and severe anxiety state.
She is able to sit and stand and walk about adequately. She would not be able to work carrying objects that weighed more than 10 pounds on a frequent basis due to her chronic cervical and dorsal strain. She hears adequately and can speak well but she is often overcome by panic disorder or significant anxiety regarding stimuli that would not disable the average person.
I am sure that you will need to have an independent medical and or psychiatric examination done. I have known her for 15 years and her disability has been consistent during that time due to the issues raised above.
I hope this [is] of help. Enclosed you will find further data, as requested, from my file.
TR 352-53.
On September 10, 1997, Michael O'Neill, M.D., who had been treating Gates for a number of years, completed a document entitled Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment. Dr. O'Neill identified serious limitations in a number of categories of functioning which are disabling, including the inability to complete a normal work day and normal work week without interruptions which are psychologically based and to perform at a consistent pace without an unreasonable number of rest periods of unreasonable lengths. Dr. O'Neill reported that all of the assessed limitations had existed since at least March 31, 1989, the date Gates was last insured. TR 593- 94.
At the hearing before the ALJ, Gates testified about her difficult childhood and the sexual abuse she experienced. She recounted a history of serious psychiatric problems; physical problems with severe pain in her back and shoulder; carpal tunnel syndrome; and problems she had maintaining employment in light of these mental and physical limitations.
The ALJ called a vocational expert to testify at the hearing. The vocational expert identified Gates' past relevant work as that of a sales clerk. The ALJ posed a vocational hypothetical, including the limitations adopted in the decision of the ALJ, to which the vocational expert responded, "I think that the person described in the hypothetical can probably work as a sales clerk. . . ." TR 118. Adding to the hypothetical a marked or a moderate restriction of no or little criticism from supervisors, the vocational expert concluded that such a person would be precluded from competitive employment. TR 119-20.
CONTENTIONS OF THE PARTIES
Sharon Gates contends that the ALJ erred in finding that she can return to the job of sales clerk, her past relevant work. Gates contends that she performed the job of sales clerk for only a brief period of time, and as such the job does not constitute past relevant work under the relevant regulations.
Gates contends that the ALJ improperly rejected her testimony and failed to provide clear and convincing reasons for rejecting the opinions of examining and treating physicians that she was disabled prior to the date she was last insured.
The Commissioner contends that Gates worked as a sales clerk within fifteen years of the date of the decision of the ALJ, but concedes that the evidence is less clear that her employment as a sales clerk was presumptively gainful activity. The Commissioner contends that the ALJ properly rejected the opinions of Drs. Clarke and O'Neill; that the Commissioner applied the proper standards for the evaluation of evidence; and that the decision of the Commissioner should be affirmed.
STANDARD OF REVIEW
The burden of proof rests upon the claimant to establish entitlement to disability benefits. To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for evaluating and determining whether a person is disabled under the Act. 20 C.F.R. § 404.1520, 416.920. At the first step, the plaintiff must prove that he has not engaged in substantial gainful activity after the alleged onset of disability. At the second step, the plaintiff must prove that he has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If, at the third step, the plaintiff proves that his impairment or combination of impairments meets or equals a listed impairment, he is automatically found disabled regardless of age, education, or work experience. If the plaintiff cannot prevail at the third step, he must proceed to the fourth step, where he must prove that he is unable to perform his past relevant work. At the fifth step, the burden shifts to the Commissioner to establish that there is other work available in significant numbers in the national economy that the plaintiff can perform. If the Commissioner establishes that the plaintiff can perform other work, then he is found "not disabled." Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The findings of the Commissioner are conclusive [ 42 U.S.C. § 405 (g)], and the decision of the Commissioner to deny benefits will be overturned only if it is not supported by substantial evidence or it is based on legal error. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). Substantial evidence is "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but is "less than a preponderance," Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997).
In evaluating the evidence, this court looks at the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion. Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). The trier of fact, and not the reviewing court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. Richardson, 402 U.S. at 400; Tackett, 180 F.3d at 1098.
ANALYSIS Past Relevant Work
A claimant's past work is relevant when it is done within the last fifteen years, lasted long enough for the claimant to learn to do it, and was substantial gainful activity. 20 C.F.R. § 404.1565(a).
Sharon Gates worked as a sales clerk for some period of time in 1983, which was within the last fifteen years. The Commissioner concedes that "[t]he evidence is less clear as to whether these jobs were presumptively gainful activities." Defendant's Memorandum, p. 7. Gates' total earnings for 1983 were $2,556.00. This is less than $300.00 per month. In 1983, however, earnings of less than $300.00 per month were not necessarily considered substantial gainful activity. 20 C.F.R. § 404.1575(b)(2)(vi). Gates worked as a sales clerk for a few months in 1983, but she quit that job because of the stress she suffered working with people and co-workers. TR 124-25. There is no evidence in this record to support the conclusion that Gates' job as a sales clerk constituted substantial gainful activity. The ALJ erred in concluding that Gates was not under a disability because she could return to her past relevant work as a sales clerk. TR 30.
Opinions of Treating Physicians
In Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), the court explains that "where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for `clear and convincing' reasons. . . . We have also held that `clear and convincing' reasons are required to reject the treating doctor's ultimate conclusions."
The record in this case contains the opinions of Drs. Clarke and O'Neill that Gates has been disabled since a date prior to March 30, 1989, the date she was last insured under Title II. These opinions are the opinions of Gates' treating physicians and are not contradicted by the opinion of any other doctor.
The ALJ rejected the opinion of Dr. Clarke on the grounds that Dr. Clarke's notes do not contain a diagnosis of a mental disorder between May 1, 1987, the alleged onset of Gates' disabling mental disorder, and March 31, 1989, the date she was last insured. The ALJ rejected Dr. O'Neill's opinion of the onset date of disability on the grounds that there is nothing in his earlier records during the relevant time period that supports the date of onset set forth by Dr. O'Neill. TR 28. The Commissioner further discredits the opinions of Drs. Clarke and O'Neill because they are dated some time after March 31, 1989, the last date that Gates was insured under Title II.
Medical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the pre-expiration condition. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). Medical reports are inevitably rendered retrospectively and should not be disregarded solely on that basis. Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). The opinion of Dr. Clarke is based upon a long history of his treatment of Gates. The record in this case contains the treatment notes of Dr. Clarke, who wrote therein that Gates' functional limitations caused by anxiety and depression went as far back as 1979. TR 486-515. The record contains substantial evidence to support Dr. Clarke's opinion that Gates was disabled prior to the expiration of her insured status. The opinion of Dr. O'Neill is consistent with the opinion of Dr. Clarke.
The court concludes that the ALJ failed to provide the required clear and convincing reasons for rejecting the uncontradicted opinions of Drs. Clarke and O'Neill. This court finds that their opinions should be credited as a matter of law.See Lester, 81 F.3d at 834.
CONCLUSION
The decision of the Commissioner is reversed and remanded for an award of benefits.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and REMANDED for an award of benefits.