Opinion
Civil No. 00-124-KI
January 19, 2001
Alan Stuart Graf, SWANSON, THOMAS COON, 900 American Bank Building, 621 S.W. Morrison Street, Portland, Oregon 97205, Attorney for Plaintiff
William W. Youngman, Assistant U.S. Attorney, 1000 S.W. Third Avenue, Portland, Oregon 97204,
Victoria Blais, Assistant Regional Counsel, Office of General Counsel, Suite 2900 M/S 901, 701 Fifth Avenue, Seattle, Washington 98104-7075, Attorneys for Defendant
OPINION AND ORDER
Plaintiff Opal Meryt brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). I reverse the decision of the Commissioner.
BACKGROUND
Meryt filed applications for DIB and SSI with protected filing dates of May 6, 1996. The applications were denied initially and upon reconsideration. After a timely request for a hearing, Meryt, represented by counsel, appeared and testified before an Administrative Law Judge (ALJ) on February 4, 1998.
On April 9, 1998, the ALJ issued a decision finding that Meryt was not disabled within the meaning of the Act and therefore not entitled to benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
LEGAL 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 may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 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) (DIB); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (SSI). 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)(1)(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 DIB or SSI due to disability. 20 C.F.R. § 404.1520 and 416.920; Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996) (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 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 performed in the past. If the claimant is able to perform work which he or she 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 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) (DIB); Drouin, 966 F.2d at 1257 (SSI). The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. § 404.1520(f) and 416.920(f).
When an individual seeks either DIB 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). This court must review the case to see if the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). It is more than a scintilla, but less than a preponderance, of the evidence. Id.
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. 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. Id. at 720-21.
FACTS
Meryt, a 23-year-old woman at the time of the hearing, has a ninth grade education, has taken some college classes, and is a licensed massage therapist. She has past relevant work as a massage therapist, a cashier/prep cook, and a deli cashier. Meryt unsuccessfully attempted a return to work in 1995 as a nanny but had to stop after three months. She alleges a disability since March 31, 1995, due to chronic fatigue syndrome ("CFS").
The ALJ found that Meryt had severe impairments of fibromyalgia, dysthymia, and CFS, but that the impairments did not meet or equal a listed impairment. He concluded that her testimony concerning the impact of her impairments on her ability to work was not entirely credible. The ALJ determined that Meryt could not return to her past work. He concluded that she had the residual functional capacity to do light or sedentary work, that she could not lift and carry more than 20 pounds occasionally or more than ten pounds on a regular basis, and that she needed to be able to freely shift between sitting and standing. The hypothetical limited stressful work but did not mention nonexertional fatigue problems. Relying on a vocational expert, the ALJ concluded that Meryt could be a small parts assembly worker, electronics worker, or unskilled sedentary cashier and, thus, was not disabled.
DISCUSSION
Meryt contends that the ALJ failed to give specific reasons that were clear and convincing for rejecting her subjective testimony. Specifically, she contends: (1) the ALJ wrongly based his rejection on a lack of objective medical evidence; (2) the recounting of Dr. Bensching's and Dr. Loveless's opinions was inaccurate; (3) the reliance on psychological tests to prove no difficulty with concentration was misplaced because of the sporadic nature of CFS; and (4) the ALJ did not consider nonmedical sources.
Meryt complains of debilitating fatigue which at first caused her to take naps whenever possible at her massage office. In March 1995, she was asked to leave because of missed appointments. Meryt also suffers from aches and pains throughout her body. Overexertion causes additional physical discomfort. For example, one half hour of gardening sent Meryt to bed over three days. Meryt had periods of improvement. She slowly improved during 1997 but began to have worse symptoms beginning in January 1998, when she increased her schooling from one class to three, with one class being taken from home on a computer. The worsening symptoms caused her to drop one of the courses taken on campus. Meryt is able to ride her bike to school, 20 to 40 minutes, or walk up to an hour, but she then is too tired for other activities until she can take a nap. On other days, Meryt is only able to walk three blocks. She takes a daily afternoon nap for at least two hours. Meryt, who was very physically active prior to becoming ill, has had to drop most of her hobbies. She lives in a household with several roommates and is unable to do her share of the work to maintain the household. In addition to doing less cleaning, Meryt had to transfer the job of paying joint bills to a roommate because concentration difficulties caused her to lose track of details.
In May 1996, Meryt saw Dr. Mark Loveless, a specialist at Oregon Health Sciences University ("OHSU"), who did a thorough work-up and diagnosed her with CFS with a prominent fibromyalgia component. He also filled out a physical functional impairment and limitations report provided by the state. On it, he stated that Meryt could sit for six hours in an eight-hour day, stand for two hours, and walk and drive for one half hour each. Dr. Loveless also limited her lift and carry functionality slightly. The form does not contain any questions about the effect of fatigue.
Her primary care physician, Dr. Katherine Bensching, stated in a letter to the Vocational Rehabilitation Division on July 3, 1996, that Meryt was diagnosed with CFS and depression. Dr. Bensching concluded that the fatigue may be totally disabling, although she had found no clear objective evidence to suggest that Meryt is functionally disabled. She also noted that she was not competent to decide on functional limitations due to the fatigue.
Robert Janz, a therapist who treated Meryt during the first half of 1996, concluded that on her good days, Meryt functioned adequately for some jobs but that the occurrence of good days was unpredictable enough that she could not maintain regular employment.
Meryt went to the Vocational Rehabilitation Division on her own for assistance in getting new employment. On September 11, 1996, the counselor wrote a letter to the state supporting Meryt's application for general assistance. After an extended evaluation period which included having Meryt regularly perform a volunteer position and attend a college class, the counselor was still concerned that her symptoms might be too debilitating to achieve successful job placement. In March 1997, the counselor closed Meryt's case after determining that she was too severely disabled to participate in the vocational rehabilitation program. Meryt was having to direct all of her energy towards basic day-to-day functioning.
A psychological evaluation on September 12, 1996, showed that Meryt has high-average intelligence and no evidence of impaired cognitive functioning. The psychologist concluded that from a psychological perspective, Meryt could return to work within the next 12 months, but that her physical limitations had to be separately evaluated.
Dr. Kristin Behle, a family practice physician at OHSU who took over management of Meryt's care, saw Meryt on October 22, 1996, and assessed her with "[p]robable fibromyalgia syndrome, severely disabling in this very young patient." Tr. 280. Dr. Behle did not, however, discuss Meryt's functional capacity at all. On September 24, 1996, Dr. Behle sent a letter to Portland Community College on Meryt's behalf, stating that she has physical pain and fatigue which limit her ability to complete her work in one sitting. Dr. Behle asked that Meryt be allowed multiple sittings to complete tasks.
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. In the first stage, the claimant must (1) produce objective medical evidence of one or more impairments; and (2) show that the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The claimant is not required to produce objective medical evidence of the symptom itself the severity of the symptom, or the causal relationship between the medically determinable impairment and the symptom. The claimant is also not required to show that the impairment could reasonably be expected to cause the severity of the symptom, but only to show that it could reasonably have caused some degree of the symptom.Id. at 1282. In the second stage of the analysis, the ALJ must assess the credibility of the claimant's testimony regarding the severity of the symptoms. If there is no affirmative evidence of malingering, the ALJ may reject the claimant's testimony only if the ALJ makes specific findings stating clear and convincing reasons for the rejection, including which testimony is not credible and what facts in the record lead to that conclusion. Id. at 1284.
The ALJ discredited Meryt's testimony about her ability to work for several reasons: (1) her doctors declined to report her symptoms as disabling or stated that she could perform work requiring modified sedentary to light exertion; (2) her testimony of limited hand functionality due to pain was contradicted by Dr. Loveless's form that did not limit her ability to manipulate or grasp; and (3) her testimony concerning concentration difficulties was contradicted by scoring high on the psychological and cognitive tests. The ALJ also noted her current physical activity and her successful participation in a college program.
I conclude that the ALJ has not given clear and convincing reasons supported by the record for the rejection of Meryt's testimony. Janz and the Vocational Rehabilitation counselor considered her unable to work on a consistent basis, although she was functional on her better days. Dr. Behle did not think Meryt could complete tasks in a single setting and informed her college of the limitation. The form filled out by Dr. Loveless did not give him an opportunity to comment on the effect of Meryt's fatigue. See Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998) (although a form noted no limitation in sitting, standing, or walking, benefits were awarded because claimant's ability to perform light work was evaluated on the basis of these orthopedic factors only). Moreover, the ALJ did not take into consideration the intermittent nature of CFS symptoms and that factor on Meryt's performance during Dr. Loveless's evaluation and in her psychological examinations. Id. at 722 (CFS is characterized by periods of exacerbation and remission). Although Meryt scored well on the cognitive tests, she had to break one evaluation into two sessions due to pain and fatigue. Finally, I do not consider the need to drop one of three college classes due to fatigue as consistent with a finding that Meryt was successfully participating in a college program.
I also note the numerous activities that Meryt gave up in an unsuccessful effort to save her limited energy for work. She no longer camps, hikes, boats, gardens, volunteers for various charities, engages in political activities, socializes three to four times a week, goes dancing, cooks large meals for her friends, handles the household joint finances, or does her share of the housework. Although Meryt is not confined to bed, the difference in her daily activities before and after contracting CFS and the fact that she dropped enjoyable activities from her life are indicative of credibility. Moreover, Meryt went to Vocational Rehabilitation on her own accord in an effort to find another career in which she could work within her current limitations.
The court has the discretion to remand the case for additional evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). The court should credit evidence and immediately award benefits if the ALJ failed to provide legally sufficient reasons for rejecting the evidence, there are no issues to be resolved before a determination of disability can be made, and it is clear from the record that the ALJ would be required to find the claimant disabled if the evidence is credited. Id.
Here, the vocational expert testified that the need to take a two hour nap during the workday would preclude all employment. There is no need for an additional hearing. Meryt is disabled as defined by the Act and is entitled to benefits.
CONCLUSION
The decision of the Commissioner is reversed. This case is remanded to the Commissioner for an award of benefits.