Opinion
Civil No. 99-611-HA
June, 2001
Attorney for Plaintiff :
Alan Stuart, Graf Swanson, Thomas Coon, Portland, Oregon
Attorneys for Defendant :
Kristine Olson, United States Attorney District of Oregon William W. Youngman. Assistant United States Attorney Portland, Oregon
Richard E. Buckley, Special Assistant United States Attorney, Seattle, Washington
OPINION AND ORDER
Plaintiff has petitioned for judicial review of the final decision of the Commissioner of the Social Security Administration denying her claim for Social Security disability benefits. For the reasons provided below, this court concludes that the decision provided insufficient reasons for discounting plaintiff's credibility, and that the Commissioner's findings were unsupported by substantial evidence based on the record as a whole.
I. Procedural History of the Case
Plaintiff filed an application for Supplemental Security Income ("SSI") disability benefits on April 4, 1995. Her claim was denied initially and she did not seek reconsideration. Plaintiff applied for SSI benefits again on February 28, 1996. This application was also denied initially and upon reconsideration. A hearing on plaintiff's claim was held before an Administrative Law Judge ("ALJ"). The ALJ found plaintiff not entitled to disability benefits because she retained the residual functional capacity ("RFC") to perform certain work found in the national economy. The Appeals Council denied plaintiff's Request For Review, rendering the ALJ's decision final. Plaintiff now seeks judicial review of that decision.
II. Background
In 1993 plaintiff was diagnosed with thyroid cancer and underwent surgery referred to as a "total thyroidectomy for a 3.9 cm papillary carcinoma of the right lobe of the thyroid." Tr. 247. She subsequently suffered from depression, and was treated for surgery follow-up and depression from March 1993 through May, 1995. Tr. 236; Tr. 211-70. In early 1996, plaintiff began treatment with mental health counselor Craig Hanson, LCSW. Social Worker Hanson treated plaintiff through September 12, 1997. During his treatment, Hanson opined that plaintiff's depression "has been moderate to severe over the past years," and "interferes with some of her daily life activities" and renders her "unemployable." Tr. 328. He also opined that plaintiff's depression "impairs Kathy's ability to cope with situational stresses and puts her at risk of hospitalization," Tr. 329, and he noted that plaintiff's symptoms include auditory hallucinations, paranoid ideation, and hopelessness. Tr. 334.
In late September 1997, Hanson noted that plaintiff still suffered from major depression, with psychotic features, and that she heard "evil male voices" verbalizing her thoughts. Tr. 434. He noted that plaintiff was not a malinger, but that it "can't be ruled out." Id. He indicated that plaintiff's prognosis was poor, that her impairments could be expected to last for over a year, Tr. 435, and that her impairments would likely result in three or more absences from work every month. Tr. 436.
Plaintiff has required the assistance of the Washington County Health Department since mid-March 1995. Tr. 378-79 ("Visit Records"). Health workers have provided assistance for her and her children's daily living activities. Tr. 44.
Defendant arranged for two psychological examinations of plaintiff. On September 16, 1995, Dr. Laura Perri evaluated plaintiff and found "no significant psychiatric impairment that would impair her ability to undertake gainful employment." Tr. 275. Dr. Perri also opined that plaintiff was a "poor historian with a notable element of embellishment." Tr. 274.
On June 6, 1996, Dr. Robert Torres also examined plaintiff. Tr. 285. Dr. Torres diagnosed plaintiff with dysthymic disorder of late onset, with a GAF ("Global Assessment of Functioning") at 80. Tr. 287. Social Worker Hanson had previously assigned GAF scores between 45 and 60 to plaintiff. Tr. 433; Tr. 332. A GAF score rates the psychological, social, and occupational functioning of a patient. The scale does not evaluate impairments caused by psychological or environmental factors. See Morgan v. Commissioner, 169 F.3d 595, 598 n. 1 (9th Cir. 1999).
Plaintiff applied for Supplemental Security Income on June 17, 1993, April 4, 1995 and February 28, 1996. After the denial of her last application, a hearing was held before ALJ Daniel Hyatt on October 14, 1997. The ALJ denied plaintiff's claim on October 20, 1997, and on March 12, 1999, the Appeals Council affirmed, rendering the ALJ's ruling the final decision of the Commissioner. Plaintiff now appeals that decision to this court.
III. Contentions of the Plaintiff
Plaintiff contends, in part, that the ALJ erred in rejecting plaintiff's claimed limitations and then subsequently concluding that plaintiff has the ability to perform full-time work. Plaintiff requests a remand for payment of benefits, and argues that the benefits should be calculated from the date of plaintiff's earlier application for SSI, on April 4, 1995. Because these issues are dispositive, plaintiff's other arguments need not be addressed.
IV. Standards
The Social Security Act (the Act) provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, Supplemental Security Income benefits (SSI) may be available to individuals who are age sixty-five or older, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1381, et seq.
The SSI program, provided for under Title XVI of the Social Security Act, provides cash payments to aged, blind, and disabled Americans for the purpose of ensuring that they have "at least a subsistence level income." Paxton v. Secretary of HHS, 856 F.2d 1352, 1353 (9th Cir. 1988) (citing 20 C.F.R. § 416.110). The benefits are meant to "supplement an individual's other sources of income." Id.; see also Schweiker v. Wilson, 450 U.S. 221, 223 (1981). To be eligible for SSI benefits, a claimant must be aged, blind or disabled, as defined by 42 U.S.C. § 1382c, and must have "income" and "resources" below certain levels. See 42 U.S.C. § 1382(a).
The burden of proof to establish a disability rests upon the claimant. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996) (disability benefits); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (SSI 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 cause death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(A). An individual will be determined to be disabled only if there are physical or mental impairments of such severity that the individual is not only unable to do previous work but cannot, considering his or her 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) and 1382c(a)(3)(A).
An individual will be determined to be disabled only if his physical or mental impairments are 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) and 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either disability benefits or SSI because he or she is disabled. 20 C.F.R. § 404.1520 and 416.920; Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995) (disability benefits); 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 or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c) and 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.
If the impairment is severe, the Commissioner proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed 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 work which he or she has performed in the past, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. § 404.1520(e) and 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 burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Distasio v. Shalala, 47 F.3d 348, 349 (9th Cir. 1995) (disability benefits); Drouin, 966 F.2d at 1257 (SSI). The claimant is entitled to disability benefits only if he or she is not able to perform other work. 20 C.F.R. § 404.1520(f) and 416.920(f).
When an individual seeks either disability benefits or SSI because of disability, judicial review of the Commissioner's decision is guided by the same standards. 42 U.S.C. § 405(g) and 1383(c)(3). The Commissioner's decision to deny benefits will be overturned "only if it is not supported by substantial evidence or is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Green v. Heckler, 803 F.2d 528 (9th Cir. 1986)). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Drouin, 966 F.2d at 1257. It is more than a scintilla, but less than a preponderance, of the evidence. Id.; Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
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. Gonzalez, 914 F.2d at 1200.
The court must weigh both the evidence that supports and detracts from the Commissioner's decision. Id. 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 Commissioner. Gomez, 74 F.3d at 970. Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld. Morgan, 169 F.3d at 599, citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
V. Analysis
In order to obtain disability benefits, a claimant bears the burden of proof and must prove that he or she was entitled to disability benefits; the issue presented before this court is whether the Commissioner's final decision is supported by substantial evidence and is free from legal error. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The ALJ concluded that plaintiff suffers from a severe impairment, depression, but that her impairment fails to meet the listings for benefits. Tr. 20. He found that plaintiff's testimony was "not entirely credible," and that she has the RFC to perform a full range of unskilled jobs. Id.
Plaintiff primarily challenges the ALJ's reasoning that plaintiff `s claimed limitations could be rejected because she "continues to maintain a somewhat demanding home life," and in part because she made what the ALJ characterized as conflicting statements regarding her incapacity. Tr. 16. Plaintiff contends that these findings are not supported by the evidence in the Record.
If an ALJ finds that a claimant's testimony relating to limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive. See Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991). The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints. See Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988) (Varney I).
In evaluating a claimant's claim of subjective symptom testimony, 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); Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The Ninth Circuit set out a threshold test in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986) (reaffirmed in Bunnell) to assist the ALJ in deciding whether to accept a claimant's subjective symptom testimony. If the claimant produces evidence to meet the Cotton test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of symptoms only by offering specific, clear and convincing reasons for doing so. See Dodrill, 12 F.3d at 918.
Under the Cotton test, a claimant who alleges disability based on subjective symptoms "must produce objective medical evidence of an underlying impairment `which could reasonably be expected to produce the pain or other symptoms alleged. . . .'" Bunnell, 947 F.2d at 344 (quoting 42 U.S.C. § 423(d)(5)(A)(1988)); Cotton, 799 F.2d at 1407-08.
The Cotton test imposes two requirements on the claimant: (1) the claimant must produce objective medical evidence of an impairment or impairments; and (2) he or she must show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom. The claimant need not produce objective medical evidence of the symptoms, or the severity thereof. Smolen, 80 F.3d at 1281-82; see also Bunnell, 947 F.2d at 347-48.
Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment "could reasonably be expected to produce" pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. Finally, the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. This approach reflects the highly subjective and idiosyncratic nature of pain and other such symptoms. Thus, the ALJ may not reject subjective symptom testimony under the Cotton analysis simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.
Smolen, 80 F.3d at 1281-82 (citations and quotations omitted).
In addition to medical evidence, factors relevant to the ALJ's credibility determination include: plaintiff's daily activities; the location, duration, frequency, and intensity of his or her symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication; treatment, other than medication; measures used to relieve symptoms; and functional limitations caused by the symptoms. Id. at 1284; 20 C.F.R. § 404.1529(c)(3). "The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen, 80 F.3d at 1284. In determining that subjective testimony is not credible, the ALJ may rely 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.
Id. (citations omitted).
Accordingly, if the plaintiff has met the burden of showing that his or her impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of the symptoms plaintiff's testimony describes, and there is no evidence suggesting that the plaintiff is malingering, the ALJ may reject testimony regarding the severity of plaintiff's symptoms only by providing clear and convincing reasons for doing so. Smolen, 80 F.3d at 1283. General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. See Lester, 81 F.3d at 834 (ALJ required to provide "specific, cogent reasons for the disbelief," quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)); Dodrill, 12 F.3d at 918; Varney, 846 F.2d at 584.
Here, the ALJ noted that plaintiff "provides all of the daily care needs for a two year old child," shops twice a month for a seven-member family, provides snacks for her children in the afternoon, and — two years before the hearing — was reported to be well-liked by her neighbors and was able to attend her son's soccer games. Tr. 16. The ALJ considered these activities to be in conflict with plaintiff's testimony that she is "depressed all of the time" and "does very little." Id. The ALJ also concluded that "claimant is not following medical advice, nor is she doing all that she can do to alleviate her depression." Tr. 17.
The ALJ's observations regarding the extent of her activities, however, overlooked the extensive assistance plaintiff received from county social workers from March 1995 through September 1997. Tr. 43-44; 374-432. The ALJ also failed to fully incorporate, and seemed to disregard, the uncontradicted evidence that plaintiff's adult daughter provides considerable assistance with daily activities ("although her 18-year-old daughter helps considerably with laundry, housekeeping and cooking, the claimant shops twice a month for her seven-member family"). Tr. 16 (emphasis supplied). Since plaintiff has received county assistance as well as "considerable" contributions from an adult daughter toward her household duties, the basis for the ALJ's conclusion that plaintiff "maintains" a "somewhat demanding home life" is unfounded. Her continued participation in an undeniably demanding living situation cannot be relied upon as grounds for construing her testimony as untruthful or for concluding that she is not entitled to SSI benefits. "Several courts," including the Ninth Circuit,
have recognized that disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations. See, e.g., Cohen [v. Secretary of Dept. of Health Human Servs.], 964 F.2d [524], 530-31 (6th Cir. 1992) (ruling that a claimant should not be penalized for attempting to maintain some sense of normalcy in her life); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting that a disability claimant need not "vegetate in a dark room" in order to be deemed eligible for benefits). See also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("Many home activities are not easily transferable to . . . the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication"). Only if the level of activity were inconsistent with Claimant's claimed limitations would these activities have any bearing on Claimant's credibility.
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
In Fair, the Ninth Circuit recognized that a claimant allegations may be discredited when the claimant is able to spend a substantial part of the day engaged in pursuits involving the performance of physical functions that are transferable to a work setting. Fair, 885 F.2d at 603. The evidence presented in this case, however, falls short of indicating that plaintiff is able to commit a substantial part of her day in pursuits that are transferable to a work setting.
Instead, the levels of activity revealed in plaintiff's testimony and in the evidence are not inconsistent with her claimed limitations. The facts that plaintiff is a member of a seven-person family, and that she attempts to participate in the daily activities of the family, are not inconsistent with the existence and the extent of the limitations to which plaintiff testified. Accordingly, that participation — as it is described in plaintiff's testimony and indicated in the Record — provides no indication that plaintiff has exaggerated her symptoms or that her testimony lacks credibility.
The evidence of plaintiff's participation in daily activities also fails to support a conclusion that plaintiff has provided inconsistent statements regarding her condition. The ALJ referenced that Social Worker Hanson noted that malingering was not evident, but could not be ruled out, and that Dr. Perri commented upon the possibility of embellishment. These somewhat isolated references fail to constitute evidence of malingering. The Record establishes that plaintiff has consistently acknowledged the extent to which she is able to be involved in daily activities, with the assistance of others. Moreover, through the records of her diagnoses and medical histories of treatments, plaintiff met the burden of showing that her impairment could reasonably be expected to produce some degree of the symptoms her testimony describes. Therefore, the ALJ was required to reject plaintiff's testimony regarding the severity of plaintiff's symptoms by providing clear and convincing reasons for doing so. Smolen, 80 F.3d at 1283.
After fully and fairly considering all the evidence regarding the aspects of her activities, including the significant assistance she has received from professionals and an adult relative in her home for these 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, citing Sisco v. Dept. of Health Human Servs., 10 F.3d 739, 743-46 (10th Cir. 1993). This court concludes that the ALJ provided insufficient reasons for discounting plaintiff's credibility, and that his findings were unsupported by substantial evidence based on the Record as a whole.
Where the ALJ improperly rejects the claimant's testimony regarding limitations, and the claimant would be disabled if the testimony were credited, the court "will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney v. Secretary of Health Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988) (Varney II). Rather, that testimony is credited as a matter of law. Id., see also Lester, 81 F.3d at 834.
After crediting plaintiff's testimony as a matter of law, this court is compelled to conclude that plaintiff is disabled under the proper standards, and is entitled to an award of benefits. Because the evidence, when it is given the effect required by law, demonstrates that no purpose would be served by remanding for further proceedings, this case is remanded for the purposes of permitting the Commissioner to award plaintiff the appropriate benefits. See Schneider v. Commissioner, 223 F.3d 968 (9th Cir. 2000); see also Reddick, 157 F.3d at 729 ("We do not remand this case for further proceedings because it is clear from the administrative record that Claimant is entitled to benefits").
In this case, the record has been fully developed. The ALJ improperly disregarded or rejected evidence that established plaintiff's entitlement to benefits. Further proceedings "would serve no useful purpose." See Smolen, 80 F.3d at 1292; see also Lester, 81 F.3d at 834 (if evidence that was improperly rejected demonstrates that claimant is disabled, court should remand for payment of benefits); Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993). Permitting the Commissioner a further opportunity to amend findings to comport with the denial of disability benefits is not in the interests of justice. See Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (if remand for further proceedings would only delay the receipt of benefits, judgment for the claimant is appropriate).
VI. CONCLUSION
The court concludes that the record is fully developed, and that further administrative proceedings would serve no useful purpose. Under the applicable standards, after giving the evidence in the Record the effect required by law, plaintiff Kathleen Hernandez is unable to engage in any substantial gainful activity by reason of her impairment, and that she is disabled under the Act. Based upon the foregoing, this case is remanded to the Commissioner for the calculation and award of benefits. The calculation of the award shall be made from April 4, 1995, the date plaintiff previously filed an application for SSI benefits. This court agrees with plaintiff's counsel that the ALJ should have reopened plaintiff's April 4, 1995, application after her subsequent application on February 28, 1996. See 20 C.F.R. § 416.1488(a).
IT IS SO ORDERED.