Opinion
No. 10-35277.
Argued and Submitted November 4, 2010.
Filed November 17, 2010.
John Edward Seidlitz, Jr., Seidlitz Law Office, Great Falls, MT, for Plaintiff-Appellant.
George F. Darragh, Jr., Office of the U.S. Attorney, Great Falls, MT, Pamela Margaret Wood, Social Security Administration Genera] Counsel's Office, Denver, CO, for Defendant-Appellee.
Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:09-cv-00065-SEH-RKS.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. Rule 36-3.
Brett Schmasow appeals the district court's decision affirming an administrative law judge's (ALJ) termination of disability benefits after finding a closed period of disability from September 1, 2006 to February 25, 2008. Schmasow argues that the evidence did not establish medical improvement related to his ability to engage in substantial gainful activity. We have jurisdiction pursuant to 28 U.S.C. § 1291, and reverse.
The ALJ's decision must be upheld if supported by substantial evidence and if the ALJ applied the correct legal standards. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). Substantial evidence is more than a mere scintilla but less than a preponderance. Id. at 1011 (internal quotation marks omitted). "[A] reviewing court must consider the record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal quotation marks omitted).
Everyone agrees that Schmasow's medical condition improved over the two year period. See POMS DI 28010.105. Dr. Hinde's February 26, 2008 treatment note states that Schmasow's condition had stabilized. But nothing suggests that Schmasow then had the ability to engage in substantial gainful activity. Dr. Hinde's February 2008 treatment note is, at best, equivocal about Schmasow's ability to work, noting his continuing impairments and advising him to revisit disability if not approved for benefits. Neither Dr. Scho-field nor Dr. Kuka provided substantial evidence to support the ALJ's assessment of Schmasow's physical abilities. Neither of them examined Schmasow and neither identified specific evidence in Dr. Hinde's notes to support their opinions. See Ryan v. Comm'r of Soc. Sec, 528 F.3d 1194, 1201 (9th Cir. 2008); 20 C.F.R. § 404.1527(d)(3).
The ALJ also improperly discredited Schmasow's testimony about the extent and intensity of his impairments, particularly his inability to walk and stand for long periods of time. Schmasow's activities of daily living did not provide clear and convincing reasons to discount his testimony about his physical limitations. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
On the current record, the ALJ should have found that Schmasow's disability continued past February 25, 2008. At the hearing, the vocational expert testified that if the ALJ credited Schmasow's testimony, Schmasow would be precluded from performing light, unskilled work and sedentary, unskilled jobs. Where the record establishes that claimant could not perform even sedentary work, there is no need for further proceedings. See Reddick v. Chater, 157 F.3d 715, 728-29 (9th Cir. 1998).
Nothing in our order precludes the Commissioner, at some future time, from initiating proceedings to review Schmasow's continued eligibility for disability. see 20 C.F.R. §§ 220.176,220.180.
We REVERSE and REMAND with instructions to the district court to remand to the ALJ for an award of benefits.