Opinion
civil No. 00-1378-KI
August 20, 2001
Alan Stuart Graf, Portland, Oregon, for Plaintiff.
Michael Mosman, United States Attorney, William W. Youngman, Assistant United States Attorney, Portland, Oregon, and Carol A. Hoch, Special Assistant United States Attorney, Social Security Administration, Seattle, Washington, for Defendant.
OPINION AND ORDER
Plaintiff Florence Price brings this action pursuant to section 205(g) of the Social Security Act (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 and remand for further proceedings consistent with this opinion.
BACKGROUND
Price filed applications for DIB and SSI with a protective filing date of March 13, 1998. The applications were denied initially and upon reconsideration. After a timely request for a hearing, Price, represented by counsel, appeared and testified before an Administrative Law Judge (ALJ) on July 21, 1999.
On November 26, 1999, the ALJ issued a decision finding that Price 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
Price was 52 years old at the time of the hearing. She graduated from high school and obtained a two year associates degree in computer science. Her past relevant work was identified as a receptionist in an auto body shop, a computer programmer, a community college computer room worker, and an Amway salesperson. She claims to suffer from chronic obstructive pulmonary disease (COPD), major depression, gastroesophageal reflux disease (GERD), and abdominal herniation. She initially alleged that her disability began July 14, 1991.
In May of 1997, Bruce C. Douglas, M.D., became Price's primary care physician. On May 27, 1998, he summarized Price's condition in a letter to Disability Determination Services. He noted that she had a history of mild COPD and some mild anxiety and tension. He also stated that he had treated her for depression. After a subsequent office visit on June 15, 1998, Dr. Douglas noted that Price continued to have multiple symptoms of depression, including weight gain, loss of sleep, and fatigue.
In September of 1998, Price switched to Walter E. Norton, M.D., as her primary care physician. On July 1, 1999, Dr. Norton completed a medical source statement regarding Price's pulmonary condition. He noted that Price continuously suffered from severe asthma attacks that incapacitated her for two to three days. He indicated that Price's symptoms frequently interfered with attention and concentration and imposed a marked limitation on her ability to deal with work stress. He described Price's functional limitations as follows: (1) continuous sitting limited to two hours; (2) continuous standing limited to fifteen minutes; (3) total sitting in an eight hour day limited to two hours; (4) total standing or walking in an eight hour day limited to 15 minutes twice; (5) three to six unscheduled breaks required per day; and (6) frequent lifting limited to less than ten pounds with no carrying. Finally, he noted that Price's condition would cause her to miss work at least three times per month.
Price testified that she had been suffering from breathing problems since 1991 and that these problems were exacerbated by such things as cologne and car traffic. She stated that she takes one nap per day that lasts one to two hours and that she is only able to work a maximum of three hours during the day. She also testified about suffering from depression. Price's husband also testified at the hearing. He stated that his wife naps during the day and had been doing so since the early 1990s. He also stated that she can only work briefly before she needs to sit down to rest and that her total work time for a day does not exceed a couple of hours.
The administrative record also contains Social Security Administration (SSA) questionnaires completed by Price's sister, Lucille Wood, on May 28, 1998, and September 5, 1998. On both questionnaires, Ms. Wood noted Price's increased problems with breathing. On the earlier questionnaire, she stated that Price's activities had been "sharply reduced during the past few years." Tr. 177.
A vocational expert (VE) also testified at the ALJ hearing. In response to hypothetical questioning, the VE testified, in essence, that a person would be able to perform Price's past relevant work as a programmer and a receptionist if he or she had the residual functional capacity described in the evaluation in the record completed the non-examining state agency physician. If, however, this person had the limitations described by Dr. Norton in his medical source statement, the VE testified that such a person would not be able to perform any work available in the national economy.
The ALJ expressed doubts about Dr. Norton's findings. He also discounted the credibility of Price's testimony. He concluded that Price has one or more medically determinable "severe" impairments, but that her impairments did not meet or medically equal a listed impairment. The ALJ also found that Price retained the ability to perform past relevant work as a programmer and as a receptionist. Thus, he found that she was not disabled under the Act. In addition, the ALJ determined that Price engaged in substantial gainful activity in November of 1995.
DISCUSSION
The Commissioner concedes that the ALJ's decision is not supported by substantial evidence and that the ALJ made errors of law in his disability determination. Thus, the Commissioner moves this court to remand this matter for further administrative proceedings. Price contends that the administrative record establishes her disability and, therefore, the matter should be remanded for an immediate award of benefits. In addition, in response to the ALJ's finding that she engaged in substantial gainful activity in November of 1995, Price stipulates to an amended disability onset date of December 1, 1995.
The reviewing court's decision whether to remand for administrative proceedings or for an immediate award of benefits is discretionary. Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir. 2000). The decision is governed by the general rule that remand for further proceedings is appropriate "if enhancement of the record would be useful." Id. at 1178. In Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996), the court held that improperly rejected evidence should be credited and an immediate award of benefits made when: 1) the ALJ has failed to provide legally sufficient reasons for rejecting such 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. I will consider this case based on the these standards.
The Commissioner agrees that the ALJ's findings regarding the opinions of treating physicians, Dr. Norton and Dr. Douglas, were not supported by substantial evidence. The Commissioner also concedes that the ALJ did not properly assess the Price's credibility and further erred in rejecting the testimony of two lay witnesses, Price's husband and sister. Thus, by the Commissioner's own admission, the first element of the Smolen test is met here.
The Commissioner claims that, even after crediting improperly rejected evidence, there is a least one outstanding issue that must be resolved on remand. Specifically, the Commissioner points out that Price's substantial gainful activity in November of 1995 nullifies Price's alleged onset date of July 14, 1991, and evidence in the record regarding Price's functional limitations is ambiguous as to the time period to which it applies. Thus, according to the Commissioner, the matter must be remanded to establish when, and to what extent, Price actually became limited by her various impairments.
I agree with Price that there is no need to consider whether she was disabled between the time of her initially alleged onset date in 1991 and November of 1995, because, based on Price's DIB and SSI application date (March 13, 1998), benefits would not be payable for that period in any case. 20 C.F.R. § 404.621 and 416.202. SSI benefits are not payable until an application has been filed. 20 C.F.R. § 416.202. DI benefits are payable beginning with the twelve month period prior to the month of application, but not for any month prior to the five month waiting period that begins when the claimant first becomes disabled. 20 C.F.R. § 404.315 and 404.621. Thus, the disability determination in this case need only extend back to September of 1996, seventeen months prior to Price's application date.
Even after moving the beginning date of the relevant period forward, however, an issue remains as to when Price's impairments may have become disabling. Dr. Douglas did not begin treating Price until May of 1997. Price then switched to Dr. Norton as her primary care physician in September of 1998. The evidence from Dr. Norton is integral to a finding of disability in this case. The plaintiff's testimony and the testimony of the lay witnesses, even if credited, do not clearly establish disability without Dr. Norton's input. Thus, this matter must be remanded to determine when Price became disabled
Although the I find that remand for further proceedings is necessary, I also agree with Price that improperly rejected evidence identified in this opinion should be credited as a matter of law. Furthermore, such evidence establishes that Price is disabled. The VE testified that a person would be unable to perform any work available in the national economy if he or she had the functional limitations established by the rejected evidence. I may rely on this testimony to find that Price is disabled as a matter of law. Reddick, 157 F.3d at 729-30; Smolen, 80 F.3d at 1291. The only remaining question is the onset date of her disability.
CONCLUSION
The decision of the Commissioner is reversed. This case is remanded to allow the Commissioner to determine the date on which Price became disabled under the Act.
IT IS SO ORDERED.