Opinion
CV-00-3040-ST
December 13, 2000
OPINION AND ORDER
INTRODUCTION
Claimant, Timothy D. Reeves ("Reeves"), brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his request for Supplemental Security Income ("SSI") benefits. He alleged disability due to migraine headaches and left shoulder pain. He further alleged disability due to abdominal pain caused by gastritis, ulcers, gall bladder dysfunction, and gastroenteritis. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c).
For the reasons set forth below, the Commissioner's decision is reversed and remanded for an award of benefits.
PROCEDURAL BACKGROUND
Reeves filed his application for social security benefits on February 3, 1997, with a protective filing date of January 31, 1997, alleging disability since March 14, 1991. He met the disability insured status requirements of the Social Security Act on the alleged onset date of his disability, but his earnings record indicates that he acquired sufficient quarters of coverage to remain insured only through March 31, 1994. Therefore, Reeves had to demonstrate that he was under a disability between March 14, 1991, and March 31, 1994.
Reeves' application for benefits was denied initially and on reconsideration. On June 20, 1997, he filed his request for a hearing before an administrative law judge ("ALJ"). The hearing was held on March 4, 1998, in Medford, Oregon. Reeves, represented by counsel, appeared and testified, as did his wife, Pamela Reeves, his friend, Gerald Stebbins ("Stebbins"), and a vocational expert ("VE").
The ALJ considered the testimony and the evidence in the record, and, on May 22, 1998, issued a decision finding that Reeves was not disabled under the Social Security Act because he could perform a significant number of jobs existing in the national economy, including charge account clerk, circulation clerk, telephone answering service operator, ticket seller, and information clerk. Despite Reeves' request, the Appeals Council declined to review the ALJ's findings. Thus, the ALJ's decision is the final agency decision, subject to review by this court. 20 C.F.R. § 416.1481.
STANDARDS
The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995), cert denied, 517 U.S. 1122 (1996). 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 determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b).
In step two the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; see 20 C.F.R. § 416.920(c). If not, the claimant is not disabled.
In step three the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; see 20 C.F.R. § 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 416.920(e). If the claimant can work, she is not disabled. If she cannot perform past relevant work, then the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; see 20 C.F.R. § 416.920(e) (f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, then she is not disabled. 20 C.F.R. § 416.966.
The Commissioner's decision denying benefits will be disturbed only if it is based on legal error or it is not supported by substantial evidence in the record. Flaten v. Secretary of Health Human Serv's., 44 F.3d 1453, 1457 (9th Cir 1995). Substantial evidence is "more than a scintilla but less than a preponderance." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir 1997). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flaten, 44 F.3d at 1457. The court must weigh "both the evidence that supports and detracts from the [Commissioner]'s conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir 1986).
STATEMENT OF THE FACTS
I. Testimony
At the time of the hearing, Reeves was 49 years old and unemployed. He reported that has completed high school and one year of college. He worked as a carpet installer for eight years and then in 1980 began working as a fire fighter. In 1986, Reeves injured his shoulder on the job and by January 1987, he resigned. Since then, he has worked very little — six weeks at a manufacturing job and sporadically as a security guard.
Reeves' 1986 shoulder injury has been treated in various ways ranging from surgeries to therapies to biofeedback. He presently described himself as limited to lifting 20 or 25 pounds with his right arm and cannot lift that amount with his left.
Aside from the shoulder injury, Reeves also suffered from stomach problems and migraine headaches. He has had the stomach problems since the mid-1970's which include cramps, severe pain, vomiting, and nausea. A bout of stomach pain can last "usually about a week or I get hospitalized for three or four days and then it takes about a week after that to recuperate." Tr. 65-66. The symptoms come and go, "sometimes it's, it's gone as far as a couple years without problems, and lately it's been about every two months I'm having a problem." Tr. 65-65.
Citations are to the page(s) indicated in the official transcript of record filed with the Commissioner's Answer on June 30, 2000 (docket #4).
Reeves started having migraine headaches when he was a child which grew worse after his shoulder and neck injury. They occur "once or twice a month." Tr. 68-69. After a shot of Demerol or Phenergan from the doctor, the migraines are gone within several hours; otherwise they can last three or four days, or, as Reeves also stated, "from hours up to two or three days. The average is about two days." Tr. 68. The migraines make him nauseous and cause him to vomit. Imitrex has not worked for him and he stopped taking Codeine because of a 1996 incident in which he ended up receiving psychiatric care for hallucinations.
Reeves also testified that he has a migraine headache once or twice a day. Tr. 66. At the end of the hearing, however, Reeves confirmed that he gets migraines one to two times per month and they last up to two to three days. Tr. 89-90.
Both of the lay witnesses at the hearing, Mrs. Reeves and Stebbins, substantially concurred with Reeves' account of his disabilities and limitations.
II. Medical Evidence
A. Shoulder, Neck, and Back Pain
Reeves' 1986 injury to his left shoulder and neck was initially diagnosed as a shoulder sprain. From that point on, Reeves received a great deal of medical attention for this condition and the attendant pain symptoms. As early as April 9, 1990, Donald R. Ryan, M.D., noted a "progressive diminution of muscle mass in the subscapular region." Tr. 377. By that time, Reeves had been given numerous nerve blocks to help with the pain.
From January 1990 to September 1991, Ashland Community Hospital records reflect an intensive course of physical therapy treatment for Reeves' shoulder and neck pain. Brad LaVine, P.T. ("LaVine") noted on May 9, 1990, that Reeves was receiving treatment on average two to three times per week. By May 24, 1991, Douglas P. Morrison, M.D., explained that Reeves:
has an extensive history of shoulder problems which have included an open procedure for biceps tenodesis, eventual biceps rupture, two reexplorations with acromioplasties and arthroscopy. He continues to have pain and clicking sensations. He's had two injections into the AC joint which have been the only things in the past two years that relieved his pain. It is for that reason that he's admitted now for a distal clavicle resection.
Tr. 244.
On December 19, 1991, a Physical Capacity Evaluation from the Rogue Valley Medical Center revealed continued pain in the left shoulder and neck and Reeves identified that pain as an "8" most of the time on a 10-point scale. The report noted moderate loss of left shoulder flexibility and subjective reports of low back pain, weakness of the left upper extremity, moderate loss of flexibility of the cervical area and a slow walking pace. Tr. 272.
As late as September 1996 Reeves was admitted for a left arm ulnar nerve transposition. Dr. Morrison explained that nerve conduction studies showed "marked slowing at the cubital tunnel on the left side" Tr. 357. Joan Becich, M.D., conducted a pain management consultation at the time of the surgery and explained that "the patient has a long-standing benign pain problem, upon which is superimposed the acute pain problem after his surgery today." Tr. 359.
B. Migraine Headaches
Reeves has an extensive history of migraine headaches. See e.g., Tr. 219, 316-17, 488-89, 519, 607, 609, 612, 614, 622-23, 637, 638. As early as February 1991, an office note prepared by Central Point Medical Group indicates that Reeves had tried Inderal, Cafergot, Procardia, and Midrin for his headaches without relief. Fiorinal, however, appears to have provided some relief for several years. Records from July 1992, August 1992, October 1992, July 1993, September 1993, and December 1993 note that Fiorinal was effective at helping to reduce his headache pain. Tr. 609, 612, 614, 616, 626, 632, 636.
Other reports show treatment for migraine headaches in 1996, 1997, and 1998, well after the date Reeves was last insured for disability benefits. Tr. 332, 480-83, 508, 572-75, 597-98, 600. For example, in May 1996, Reeves was admitted to the hospital with a migraine headache, nausea, vomiting, and abdominal pain. He was diagnosed with acute duodenitis without ulcer, questionable cholecystic disease, cholangitis, acute and chronic migraine headaches, and disability with the left shoulder. By September 1997 a progress report from Medford Clinic noted that although Elavil, Midrin, Inderal, Imitrex, Reglan, Cafergot, Toradol, and various other agents had been tried for Reeves' headaches, Demerol was the only drug that worked to relieve Reeves' pain.
C. Abdominal Pain
Reeves' medical records indicate a sporadic, sometimes serious abdominal pain problem that has defied definitive diagnosis. In February 1990, prior to the relevant disability period, Richard P. Bernard, M.D., noted that Reeves was admitted to Providence Hospital for two days complaining of abdominal pain. Though Reeves exhibited vomiting and nausea, Dr. Bernard found no evidence of an acute ulcer but diagnosed gastroenteritis. On October 18, 1992, Reeves was seen in the emergency room of Providence Hospital complaining of a migraine headache and abdominal pain. Rodney L. Farmer, M.D., noted that Reeves' symptoms appeared consistent with an acute gastritis or gastroenteritis episode. He stated that Reeves had a history of ulcer disease but that Reeves "does not describe any symptoms over the past several months." Tr. 284.
In May 1996 Reeves presented to the Emergency Room with nausea, vomiting and abdominal pain and he was actually admitted with severe abdominal pain to Providence Hospital in September 1996. David R. Gilmour, M.D., at that time diagnosed abdominal pain possibly due to a "non-ulcer dyspepsia." Tr. 431. John A. Walker, M.D., reported, "I suspect he has nonulcer, dyspepsia or some other functional cause of abdominal complaints." Tr. 437.
In January 1997, Reeves had a gallbladder operation and the diagnosis was of "subacute and chronic cholecystitis without cholelithiasis." Tr. 498-99. Almost a year later, in November 1997, Richard L. Morris, M.D., noted chronic abdominal pain with "etiology never determined" which was under reasonable control. Tr. 596. In February 1998, Dr. Morris again noted that Reeves suffered from recurrent abdominal pain, nausea, and vomiting, with "etiology undetermined despite multiple invasive and noninvasive procedures." Tr. 601.
III. Vocational Evidence
The VE first identified Reeves' past relevant work as a security guard, mold assembler, fire captain, fire fighter, emergency medical technician ("EMT"), and carpet layer. The ALJ then directed the VE to consider the limitations described in a physical capacity evaluation, Exhibit 6f, and the characteristics of a hypothetical 45 year old individual who is a high school graduate with one year of college and some vocational training. Based on those limitations and characteristics, the VE eliminated Reeves' past work as a mold assembler, fire captain, fire fighter, EMT, and carpet layer. Upon further questioning, the VE revised her conclusion and also stated that such an individual could not perform Reeves' remaining category of past relevant work as a security guard.
Next, the VE used those same characteristics and limitations while considering whether the hypothetical individual could perform other work. She identified several "sedentary" jobs such as charge account clerk, circulation clerk, and telephone answering service operator. She also identified as suitable jobs in the "light" category including ticket seller.
Lastly, the VE considered the effect of migraine headaches on this same hypothetical individual. If such an individual missed work at least two to four days per month, the VE stated that "if it occurs pretty nearly every month, would result in absences far in excess of what employers are, are willing to tolerate." Tr. 90-91.
ALJ'S DECISION
The ALJ first determined that even though Reeves testified at the hearing that he has been disabled since 1986, the truly relevant period of time for the issue of disability is from March 14, 1991, to March 31, 1994. The ALJ also determined that Reeves has not engaged in any substantial gainful work activity since the alleged onset date of March 14, 1991. He turned then to a discussion of whether Reeves has a "severe" impairment or combination of impairments. He found Reeves' shoulder and neck injury and pain to be a severe impairment. Further, he noted that although the evidence is "uncertain," (Tr. 20), migraine headaches are also a severe impairment, but Reeves' gastrointestinal problems are not a severe impairment. Next, the ALJ determined that Reeves' impairments do not meet or equal the requirements set forth in the Listing of Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listings").
The ALJ then proceeded to discuss Reeves' residual functional capacity ("RFC"), which describes the range of work activities that a claimant can perform despite his impairments. He concluded that Reeves' own description of his limitations during the time relevant to his application "are partially credible, but are somewhat inconsistent with other credible reliable evidence in the record" and not fully supported by the medical evidence in the record. Tr. 22. Instead, the ALJ fully credited a March 1997 report by Charles Spray, M.D., (Exhibit 20F), and a December 1991 evaluation by the Rogue Valley Medical Center (Exhibit 6F). He found, based on the latter evaluation, that as of March 31, 1994, Reeves retained the RFC to lift and carry up to 20 pounds at a time, occasionally up to 15 pounds and frequently less than 10 pounds, to sit for one to two hours at one time up to a total of eight hours in a day; and to stand or walk up to one hour at a time and altogether for three to four hours in a day. He was restricted from frequent squatting or bending, from overhead reaching with his left arm, and from being around moving machinery.
Based on this RFC, the ALJ determined with the assistance of the VE that Reeves could not return to any of his past relevant work. Therefore, the ALJ had to determine if Reeves could perform any other work sufficiently available in the economy. Given all of the limitations described above, the ALJ, with the VE's assistance, found that Reeves is capable of performing unskilled sedentary or light jobs that exist in substantial numbers in the economy. Thus, the ALJ found Reeves not disabled.
The ALJ also discussed the hypothetical with the VE that included multiple absences due to migraine headaches. He found that these additions to the hypothetical were not supported by the credible evidence in the record and he chose not to adopt them.
DISCUSSION
Reeves argues that the ALJ erred because he: (1) improperly discredited Reeves' subjective testimony as to his migraine headaches and shoulder and neck pain; (2) failed to properly discredit the lay witness testimony concerning Reeves' headaches; (3) failed to address Dr. Morris' opinion; and (4) failed to consider Reeves' limitations in combination in order to determine if those limitations met the criteria of any Listing. This court, however, need not address all of Reeves' arguments because the first two arguments compel this court to reverse the decision and remand for an award of benefits.I. Reeves' Subjective Testimony
At the hearing, Reeves testified to ongoing pain and limited use of his left arm and to frequent disabling migraine headaches. However, the ALJ determined that "the claimant's statements concerning his impairments, and their impact on his ability to work during the time relevant to his application, are partially credible, but are somewhat inconsistent with other credible reliable evidence in the record." Tr. 22. Reeves now argues that the ALJ's decision to partially discredit his testimony constitutes legal error.
A. Legal Standard
In order to reject a claimant's complaints, the ALJ must provide "specific, cogent reasons for the disbelief." Lester v. Chater, 81 F.3d 821, 834 (9th Cir 1995), quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir 1990). Additionally, "[o]nce the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to subjective symptoms merely because they are unsupported by objective evidence." Id at 824, citing Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir 1991) (en banc) and Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir 1986). Instead, if the claimant produces evidence of an underlying impairment which is reasonably likely to be the cause of his alleged symptoms and there is no evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir 1996), citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir 1993).
The ALJ's credibility determination is to be guided by a consideration of: (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 at 1284.
General findings are insufficient. Instead, the ALJ must identify what testimony is not credible and what testimony undermines the claimant's complaints. Morgan v. Commissioner of Social Security, 169 F.3d 595, 599 (9th Cir 1999). However, provided the ALJ makes specific findings that are supported on the record, he "may discredit the claimant's allegations based on inconsistencies in the testimony or on relevant character evidence." Bunnell, 947 F.2d at 346.
B. Discussion
Reeves presented credible medical evidence of underlying impairments consistent with his complaints of severe shoulder and neck pain and migraine headaches. Although the ALJ noted some evidence of a lack of motivation and drug-seeking behavior, he did not arrive at any specific finding that Reeves is a malingerer. Therefore, the ALJ was free to reject Reeves' subjective pain testimony only by offering clear and convincing reasons.
Reeves testified that he suffered disabling migraine headaches one to two times per month but the ALJ found this testimony only partially credible for several reasons. First, the ALJ specifically pointed to three alleged contradictions in the medical record: (1) in December 1995, Alan Mersch, D.O., reported that Reeves suffered from migraine headaches once or twice a year; (2) in January 1997, Len Bauling, F.N.P., reported that Reeves' headaches occurred once every two months; and (3) between 1991 and 1994, Reeves sought medical treatment for his headaches only three times. Second, the ALJ noted that Reeves had suffered from migraine headaches for many years which did not prevent him from maintaining employment, explaining that "the fact that the claimant's headaches did not prevent him from working in the past strongly suggests that his present unemployment is not due to this condition." Tr. 23. Third, the ALJ also mentioned that much of Reeves' pain may be due to drug-seeking behavior, that Reeves took a trip to Alabama, and that Reeves worked part-time as a security guard.
While the ALJ therefore provided specific reasons, those reasons are insufficient to reject Reeves' subjective complaints. First, the alleged contradictions are not supported by the record. Dr. Mersch's note from December 7, 1995, states, "[s]ignificant migraine HA. Have not seen for years. Gets migraine HA's 1-2 a year. . . . F/U for updates as he is new to Good Health Plan and we have not touched base for years." Tr. 484. Thus, Dr. Mersch had not seen Reeves for several years prior to making this comment. Furthermore, the medical evidence, as discussed below, demonstrates that Reeves received treatment for his migraines far more often than one or two times a year.
Len Bauling's report from January 29, 1997, states that Reeves "has had a history for 10 years of migraines that he gets every two months as well as a history of tension headaches." Tr. 508. Len Bauling's report is contradicted by Reeves' statement to Cathie Diller, M.D., only nine months later, on September 25, 1997, that he has migraines every two to four weeks. Tr. 593. Furthermore, the medical evidence, as discussed below, evidences more frequent headaches.
Both of the above statements identified by the ALJ are contradicted by the great weight of the medical records demonstrating frequent treatment for migraine headaches. Between March 1991 and March 1994, during the relevant period for this claim, Dr. Hulse specifically noted the presence of migraines 28 times. Tr. 608-09, 611-14, 617-23, 626-27, 629-30, 632-34, 636-38. To cite just a few examples: A medical note from January 22, 1993, stating, "[n]eeds medication for his migraines. Has migraines about 1 x week. Has regular headache every day" (Tr. 626); Dr. Hulse stating on October 18, 1993, "have been seeing Pt about 1 in every 3 weeks for migraine headaches" (Tr. 612); and a medical note from December 29, 1993, stating "[h]eadaches every day trying to cut back on medications." Tr. 608. Outside of the relevant time period for disability, the medical records document a similarly extensive treatment regimen for migraine headaches. From May 1989 to April 1991, a period of almost two years, Reeves presented with severe headaches 11 times. Tr. 487-92. Reeves presented with headaches 13 times in the 14 months from October 1995 to December 1996. Tr. 470-85. These numbers do not even take into account the great number of entries that do not specifically mention migraine headaches but indicate that Fiorinal was prescribed.
During this time, Reeves was typically prescribed Fiorinal for his headaches. See Tr. 483-84. For example, on September 15, 1992, Dr. Hulse reported that Fiorinal "has been helping relieve the headaches and prevents the migraine. Other medicine did not work as well. . . . Pt is not addicted to this medicine." Tr. 631.
Second, the ALJ's finding that Reeves was able to work in the past despite his migraines is of limited assistance. For example, while Reeves was able to maintain his work as a fire fighter, the job was flexible enough so other people could cover for him when he was incapacitated with a headache. Stebbins, for one, testified that he used to fill in for Reeves at times when he had a headache, about once or twice a month. Tr. 77. The VE even explained that:
the less skilled the position is the less tolerance there is for absenteeism for whatever reason and . . . I believe the reason that the fire department allowed what sounded like fairly frequent migraine related dabsences was because he was in a, a highly skilled position and also in, in a management position that, that's why I believe that was tolerated in that situation.
The jobs identified by the VE as appropriate for someone with Reeves' characteristics were all unskilled or semi-skilled. Tr. 90.
Third, the remaining reasons given by the ALJ also do not support his rejection of Reeves' testimony. The ALJ noted that much of Reeves' alleged pain "may be due to drug-seeking behavior." He cites Dr. Walker's report from September 1996, in which Reeves was offered a choice of a nerve block to numb his arm for a period of time following surgery, but chose to instead have large amounts of narcotics. He also cites a September 1992 note wherein Reeves was advised "about being dependent on medication." Tr. 630. However, other evidence shows that Reeves did not exhibit drug-seeking behavior during the relevant time period. For example, Dr. Hulse's report from September 15, 1992, indicates unequivocally that Reeves was not addicted to Fiorinal. Tr. 631. Rather, the record indicates that Reeves exhibited drug-seeking behavior more frequently in recent years and increasingly demonstrated a tolerance for all pain-killing drugs. This progression may be logical and, perhaps, unavoidable, given the copious amounts of pain-killing drugs that Reeves has ingested over the last 10 to 15 years. Dr. Walker, for instance, noted in 1996 that Reeves "may have a component of needing or seeking drugs on the basis of exposure and increased tolerance." Tr. 437 (emphasis added).
The report states: "The patent exhibits some drug-seeking behavior in that he chooses to have an infusion of large amounts of narcotics over the possibility of a block which would numb the elbow and enable him to forego taking narcotics while he's in the hospital." Tr. 359.
The ALJ further noted that Reeves took a trip to Alabama in September 1992, but such an activity is certainly not a convincing reason, alone or in combination, to discredit Reeves' complaints. The entire record of this trip to Alabama consists of a doctor's note with the comment "[g]oing to Alabama." Tr. 631. As a reason to discredit Reeves' testimony concerning his headaches, it has little value. The record neither indicated whether Reeves ever took that trip to Alabama nor whether that trip consisted of merely a short visit by airplane or instead was the equivalent of a rigorous cross-country bicycling trek.
Lastly, the ALJ pointed out that Reeves had engaged in occasional work as a security guard. He did not, however, specifically note what aspects of the security guard job gave him pause. For example, he failed to discuss the nature, frequency, or duration of the security guard work, nor did he relate that work in any way to Reeves' claimed limitations. From the record, it is apparent that this job lasted only several years and was very sporadic in nature. A claimant should not be penalized for attempting to lead a normal life. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir 1998). "Only if the level of activity were inconsistent with Claimant's claimed limitations would those activities have any bearing on Claimant's credibility." Id. Furthermore, "[o]ccasional symptom-free periods — and even the sporadic ability to work — are not inconsistent with disability." Lester, 81 F.3d at 833 (citations omitted).
Not only does the record support Reeves' testimony, so too does the uncontroverted lay witness testimony. Reeves' wife of 28 years stated that her husband has suffered from headaches for the entire time that she has known him. According to her, he experiences "the bad migraine type" about twice a month. Tr. 73. When he has such a migraine, he goes to his bedroom, closes the shades, and lays down. Sometimes it takes him several days to get over a bad headache, but if it continues for three or more days, he goes to the doctor for a shot. During the last 15 years, according to Mrs. Reeves, the headaches have gotten progressively worse.
Stebbins is a friend and former coworker of Reeves and they have known each other since 1981. He is familiar with Reeves' headaches from the time that he worked as a fire fighter from 1980 to 1985. He used to fill in for Reeves about once or twice a month when he had a headache. He explained that "we'd run on what they'd call a tour of duty. You're like 24 hours on, 48 off. So there would be, sometimes that we'd go out on a call or something. We'd go back and he'd come down with a migraine or something. He'd have to go home and he couldn't fulfill his shift." Tr. 77. Stebbins stated that he now does not visit Reeves very often, explaining:
I mean we don't go out. I own an automobile repair. He brings his cars in there. We used to fish together. We, we have done things in the past. Just, you know, not, not in the recent years. Yeah. I mean, he's become an introvert. He's, he's, he can't go anywhere. He's in pain so we don't get to go anywhere anymore.
Tr. 77-78.
If the ALJ wished to discredit Reeves' testimony concerning the frequency of his headaches, he was required to point to specific facts in the record that demonstrate an objective basis for his disbelief. See Dodrill, 12 F.3d at 918. Here he failed to do so. Instead, the medical evidence in the record and the testimony from the two lay witnesses fully support Reeves' testimony concerning the frequency and severity of his migraine headaches. Because the ALJ offered no clear and convincing reason for rejecting Reeves' testimony concerning his headaches and their impact on his ability to work, his testimony must be credited as true. See Lester, 81 F.3d at 834.
Reeves argues also that the ALJ erred by failing to give sufficient reasons for discounting Reeves' complaints of shoulder and neck pain. However, because the foregoing discussion of Reeves' migraine headaches is dispositive, this court need not address that argument.
II. Lay Witness Testimony
The ALJ did not address the lay witness testimony, thus committing legal error and providing additional grounds for reversal. The Ninth Circuit has clarified that "lay testimony as to a claimant's symptoms or how an impairment affects his ability to work is competent evidence and therefore cannot be disregarded without comment." Nguyen v. Chater, 100 F.3d 1462, 1462 (9th Cir 1996), citing Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir 1987) and Dodrill, 12 F.3d at 919. If the ALJ wishes to discount lay witness testimony, he must give reasons that are germane to the witness. Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1298 (9th Cir 1999); Dodrill, 12 F.3d at 919.
Though the Commissioner supplied several reasons why the lay witness testimony should be discounted, the ALJ did not. This court reviews the reasoning of the ALJ and the Appeals Council, not the later arguments presented by attorneys. As the court in Barbato v. Commissioner of Social Sec. Admin., 923 F. Supp. 1273, 1276 (C.D. Cal 1996) noted, "the Commissioner's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council."
II. Remedy
This court must decide whether to reverse the ALJ's decision and remand for further administrative proceedings or reverse and remand for an award of benefits. Such a decision is within the discretion of the court. Reddick, 157 F.3d at 728. Crediting evidence and remanding for an award of benefits is appropriate where
(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.
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir 2000), quoting Smolen, 80 F.3d at 1292.
As explained by the Ninth Circuit, "where the ALJ improperly rejects the claimant's testimony regarding his limitations, and the claimant would be disabled if his testimony were credited, `we will not remand solely to allow the ALJ to make specific findings regarding that testimony.'" Lester, 81 F.3d at 834, quoting Varney v. Secretary of Health Human Services, 859 F.2d 1396, 1401 (9th Cir 1988). "Rather, that testimony is also credited as a matter of law." Id.
Here, the ALJ improperly rejected Reeves' testimony regarding the frequency and duration of his headaches. Reeves testified that he has disabling migraine headaches one to two times per month lasting from one to three days. The ALJ determined that such headaches would cause Reeves to miss at least two to four days of work per month and the VE testified that such a rate of absenteeism would be unacceptable for any work. Tr. 90-91.
Thus, crediting Reeves' testimony leads inevitably to a finding of disability. There is no need to remand for further proceedings. Instead, the Commissioner must award benefits.
ORDER
For the reasons set forth above, the Commissioner's decision is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for an award of benefits.