Opinion
Civil No. 99-3043-KI
November 8, 2000
Robert F. Webber, Black, Chapman, Webber Stevens, Medford, Oregon, for plaintiff.
Kristin Olson, United States Attorney District of Oregon, William W. Youngman Assistant United States Attorney, Portland, Oregon.
Victoria Blais, Assistant Regional Counsel-Seattle Region Special Assistant United States Attorney, Seattle, Washington, for defendant.
OPINION
Plaintiff Debra Swanson 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 plaintiffs application for disability insurance benefits. I reverse the decision of the Commissioner and remand for rehearing.
BACKGROUND
Debra Swanson filed an application for benefits with a protected filing date of November 11, 1994. The application was denied initially and upon reconsideration. After a timely request for a hearing, Swanson, represented by counsel, appeared and testified before an Administrative Law Judge (ALJ) on January 17, 1997.
On March 25, 1997, the ALJ issued a decision finding that Swanson 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 ("DIB") 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 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
Swanson, who was 37 at the time of the hearing, states that she has been unable to work since March 1994 because of severe back pain. Prior to that date, Swanson worked for eight years as a hospital preadmission data coordinator and had previously worked as a box office manager, volunteer coordinator, and ward clerk. She attended college for a few years.
Swanson notes that her condition has improved consistently since 1994 but she still has good and bad days. On good days, she can prepare her small child for school, take him to school, then rest in bed until anywhere from 10:00 a.m. until 2:30 p.m., depending on how she feels. She will prepare the meals, grocery shop with assistance driving and bringing the groceries inside, and perform other household duties although her mother helps with the housecleaning. On bad days, however, Swanson stays in bed all day and her parents assume responsibility for her son. At times, Swanson will stay at her parents' home during her bad periods. Swanson suffers from bad days for one to two weeks every six weeks.
Many of the physicians found Swanson's pain and incapacity inconsistent with the objective medical evidence documenting her back problem. Swanson's treating physician stated she was disabled but never completed a detailed physical capacities assessment. The ALJ did not accept Swanson's testimony concerning the severity of her symptoms and concluded that she could return to her past work.
DISCUSSION
After the ALJ's decision, Swanson obtained additional medical records for treatment after that date and sent them to the Appeals Council. In denying Swanson's request for review, the Appeals Council considered the evidence but concluded that it provided no basis for changing the ALJ's decision. Tr. 5.
The records include chart notes and letters from her treating doctor, Dr. John Shonerd, in which he states that Swanson has been disabled since May 1994 and will remain so for at least another six months past May 19, 1997. He completed a detailed assessment of her physical capacities. Swanson also was examined several times between May 1997 and June 1998 by a rheumatologist, Dr. Vera Melnyk, who diagnosed her for the first time with fibromyalgia. She states that this diagnosis "is why her previous findings have suggested that her symptoms are out of proportion to physical exam findings." Tr. 50.
Medical reports generated after an ALJ's decision may be material to a determination of whether the claimant was disabled prior to the date of the adverse decision. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). Additional evidence presented to the Appeals Council but not seen by the ALJ may be considered in determining if the ALJ's denial of benefits is supported by substantial evidence. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000), petition for cert. filed (Aug. 2, 2000). The court may not hold on the basis of the additional evidence, however, that the claimant is entitled to an immediate award of benefits. The case must be remanded to the ALJ for consideration of the new evidence, rebuttal by the Commissioner, and any additional testimony needed because of the new evidence. Id.
One of the reasons relied upon by the ALJ in discrediting Swanson's pain testimony is that her alleged limitations exceed the findings of the objective medical evidence. Dr. Melnyk's new reports give a possible explanation which is contrary to that conclusion. Dr. Shonerd's detailed physical capacity assessment would also be helpful. At the hearing, the ALJ had evidence that Dr. Shonerd completed forms checking a box to indicate that Swanson was totally incapacitated, but his chart notes did not give specifics on her ability to lift, sit, stand, etc. I would like the ALJ to be able to weigh the new information along with the reports that were in the record before him.
CONCLUSION
The decision of the Commissioner is reversed. This action is remanded to the Commissioner under sentence four of 42 U.S.C. § 405 (g) for rehearing to consider the new medical evidence. Judgment will be entered.
ORDER
The decision of the Commissioner is REVERSED. This action is remanded to the Commissioner under sentence four of 42 U.S.C. § 405 (g) for rehearing to consider the new medical evidence.
IT IS SO ORDERED.
JUDGMENT
Based on the record,
The decision of the Commissioner is hereby REVERSED, and this case is REMANDED to the Commissioner for further proceedings.