Opinion
Civil No. 99-1329-HA
January 22, 2001
Attorney for Plaintiff :
Tim Wilborn, Portland, Oregon
Attorneys for Defendant :
Kristine Olson, United States Attorney District of Oregon, William W. Youngman, Assistant United States Attorney, Portland, Oregon
Norman M. Barbosa, Special Assistant United States Attorney, Seattle, Washington
OPINION AND ORDER
Plaintiff has petitioned for judicial review of the final decision of the Commissioner of the Social Security Administration denying his claim for Supplemental Security Income disability benefits. For the reasons provided below, this court rules that the Commissioner's decision provided insufficient reasons for discounting plaintiff's credibility, and that the Commissioner's findings were unsupported by substantial evidence based on the record as a whole. This court concludes that this action must be remanded to the Commissioner for further administrative proceedings to determine whether plaintiff is entitled to SSI benefits.
I. Procedural History of the Case
Plaintiff filed an application for Supplemental Security Income ("SSI") disability benefits on August 26, 1996. His claim was denied initially and upon reconsideration. A hearing on plaintiff's claim was held before an Administrative Law Judge ("ALJ"). The ALJ found plaintiff not entitled to disability benefits, and the Appeals Council denied plaintiff's Request For Review, rendering the ALJ's decision final. Plaintiff now seeks judicial review of that decision.
II. Background
In 1996 plaintiff filed his application for SSI benefits, alleging disability on or before his filing date of August 26, 1996, based upon combined impairments including back, hip and leg pain. Plaintiff was born on April 9, 1937, and has worked intermittently over the last few years as a car washer. A few days after plaintiff's initial application for benefits, he returned to complete a more detailed disability interview. On September 9, 1996, he reported to a reviewer that his back and leg pain began in 1995, but that he continued to work "whenever I can. . . . Some days I couldn't work at all, others only for a few hours," because of his pain in his lower back, legs and hips. Tr. 79. Plaintiff reported that he could not walk farther than a block and a half, and that he could lift only five pounds. Id. He said he lived alone in a camper, performed his own cooking and cleaning, and received help with shopping. Tr. 82.
At his subsequent hearing before the ALJ, plaintiff testified that he lived with a friend and that a "lady friend" did his cooking. Tr. 47.
In response to a subsequent agency inquiry made on September 17, 1996, plaintiff's chiropractor, Bill Flowers, D.C., indicated that plaintiff was "unable to perform work activity of any kind presently or in the immediate future." Tr. 188. The chiropractor's diagnosis following an examination in August, 1996, was that plaintiff suffered from an "acute biomechanical lesion of the lumbar spine;" "acute strain/sprain of the sacroiliac spine;" and "acute moderate muscle spasm." Tr. 201.
On January 2, 1997, Dr. David J. Wright reported that plaintiff suffers from "fairly severe lumbar degenerative changes," Tr. 210, and Dr. Victoria Carvalho concluded that plaintiff did not have "functional impairment of his upper or lower extremities," but suffered from "decreased ankle extension and dorsiflexion," and "decreased sensation in a glove and stocking distribution." Tr. 209.
At plaintiff's hearing before the ALJ on January 29, 1998, he testified that he currently washed "about one or two cars a day," and earned five dollars per car. Tr. 38-39. On a good day in the summer months, plaintiff could wash "maybe three or four." Tr. 39. He testified that he could not maintain a job that required him to stand for six hours in a day for more than a week, Tr. 42, and that he could not remain standing for more than three to four hours without requiring rest. Tr. 45. Plaintiff also explained that he could no longer lift full six-gallon buckets, Tr. 43, and that he suffered from muscle spasms that necessitated blood-thinning medication. Tr. 45.
The ALJ issued his opinion on March 26, 1998, denying plaintiff's application for SSI benefits. Tr. 25-29. The ALJ concluded that plaintiff did not suffer from any "impairment or combination of impairments that is `severe' within the meaning of the Social Security Regulations." Tr. 25. The ALJ rejected plaintiff's testimony as "not entirely credible in light of the claimant's own description of his activities and life style, the degree of medical treatment required and the claimant's assertions concerning his ability to work." Tr. 27. He also indicated that plaintiff's income appears to depend more on the "vagaries of the car washing industry. . . than being limited by his disability," because plaintiff "is apparently capable of washing up to five cars a day, for which he is paid $10.00 per car. . . ." Id. This court notes that the only evidence presented in the Record pertaining to these matters indicates that plaintiff can only wash up to four cars a day (and that number only on a "good" summer day), and that plaintiff nets only five dollars per washed car. Tr. 39; Tr. 38.
The ALJ "nevertheless" denied plaintiff's claim because none of his impairments was considered severe, "and the aches and pains he describes are no more than any individual in his 60's would feel after a day of labor." Tr. 27. The ALJ concluded that lower back pain after three or four hours of standing was "perfectly normal," and that the plaintiff has "apparently accommodated" his inability to lift full six-gallon buckets, in light of the fact that plaintiff continues to wash those cars that "show up needing to be washed." Tr. 28. The ALJ determined that plaintiff "is merely suffering from the normal aches and pains one feels as [he or she enters] a seventh decade of living." Id.
IV. 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 (SSI) may be available to individuals who are age sixty-five or older, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1381, et seq.
The SSI program, provided for under Title XVI of the Social Security Act, provides cash payments to aged, blind, and disabled Americans for the purpose of ensuring that they have "at least a subsistence level income." Paxton v. Secretary of HHS, 856 F.2d 1352, 1353 (9th Cir. 1988) (citing 20 C.F.R. § 416.110). The benefits are meant to "supplement an individual's other sources of income." Id.; see also Schweiker v. Wilson, 450 U.S. 221, 223 (1981). To be eligible for SSI benefits, a claimant must be aged, blind or disabled, as defined by 42 U.S.C. § 1382c, and must have "income" and "resources" below certain levels. See 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) (disability benefits); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (SSI benefits). 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)(A). An individual will be determined to be disabled only if there are physical or mental impairments of such severity that the individual is not only unable to do previous work but cannot, considering his or her 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)(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 disability benefits or SSI because he or she is disabled. 20 C.F.R. § 404.1520 and 416.920; Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995) (disability benefits); 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 has performed in the past. If the claimant is able to perform work which he or she has 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 which he or she has 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) (disability benefits); Drouin, 966 F.2d at 1257 (SSI). The claimant is entitled to disability benefits only if he or she is not able to perform other work. 20 C.F.R. § 404.1520(f) and 416.920(f).
When an individual seeks either disability benefits 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). The Commissioner's decision to deny benefits will be overturned "only if it is not supported by substantial evidence or is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Green v. Heckler, 803 F.2d 528 (9th Cir. 1986)). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Drouin, 966 F.2d at 1257. It is more than a scintilla, but less than a preponderance, of the evidence. Id.; Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
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. Gonzalez, 914 F.2d at 1200.
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. Gomez, 74 F.3d at 970. Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld. Morgan, 169 F.3d at 599, citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
V. Analysis
In order to obtain disability benefits, a claimant bears the burden of proof and must prove that he or she was entitled to disability benefits; the issue presented before this court is whether the Commissioner's final decision is supported by substantial evidence and is free from legal error. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The ALJ concluded that plaintiff did not suffer from a severe impairment and that, therefore, it was unnecessary to proceed to the third step in the benefits analysis to determine whether the claimant's impairment was so severe as to preclude substantial gainful activity.
Plaintiff contends that the ALJ erred in (1) determining that he did not suffer from a severe impairment; (2) failing to fully and fairly develop the record; (3) rejecting plaintiff's testimony; (4) failing to apply the grids correctly; and (5) rejecting the agency doctor's opinion. Essentially, plaintiff's argument centers upon the alleged error in concluding that plaintiff does not suffer from a severe impairment, and he advances several related bases for challenging that determination (improper rejection of plaintiff's testimony; improper rejection of an agency physician's finding; failure to consider all medical sources; failure to develop the record fairly, and failure to apply the grids correctly). Although plaintiff's counsel elected to address these issues independently, this court construes them as related to the underlying issue of whether the ALJ erred, and if so, what the appropriate remedy should be. Accordingly, this court proceeds to determine the fundamental question of whether the ALJ's finding that plaintiff suffers from no severe impairments is supported by substantial evidence and is free of legal error. For the following reasons, this court concludes that this conclusion is not supported by substantial evidence, and that the ALJ erred in discrediting plaintiff's testimony.
1. Did plaintiff suffer from a severe impairment?
Plaintiff's contention is that the ALJ erred in concluding that plaintiff suffers from no severe impairment. As defendant establishes in its responsive brief, the ALJ's determination was based upon his rejection of plaintiff's testimony, the inconsistency allegedly inherent in the statement by plaintiff's chiropractor that plaintiff is disabled, and the supportive findings made by Dr. Carvalho, an agency physician. Defendant's Brief at 13.
To be disabling, an impairment must significantly limit a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). To support a conclusion that an impairment is "not severe," the evidence must show that the claimant's malady is merely a slight abnormality or combination of slight abnormalities that has no more than a minimal effect on the claimant's ability to perform basic work activities. See SSR 96-3p. Basic work activities include walking, standing, lifting, pushing, pulling, reaching, carrying, seeing, hearing, speaking, understanding and remembering. See 20 C.F.R. § 416.921(b)(1)-(6).
A. Rejecting plaintiff's testimony
A primary argument of plaintiff's is that the ALJ erred in rejecting his testimony when concluding that there was no evidence presented of a severe impairment. If an ALJ finds that a claimant's testimony relating to limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive. See Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991). The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints. See Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988) (Varney I).
In evaluating a claimant's claim of subjective symptom testimony, the ALJ must determine whether the claimant has produced objective medical evidence of an underlying impairment which could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(a); Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The Ninth Circuit set out a threshold test in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986) (reaffirmed in Bunnell). If the claimant produces evidence to meet the Cotton test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of symptoms only by offering specific, clear and convincing reasons for doing so. See Dodrill, 12 F.3d at 918.
The Cotton test requires a claimant who alleges disability based on subjective symptoms to "produce objective medical evidence of an underlying impairment `which could reasonably be expected to produce the pain or other symptoms alleged. . . .'" Bunnell, 947 F.2d at 344 (quoting 42 U.S.C. § 423(d)(5)(A) (1988)); Cotton, 799 F.2d at 1407-08.
Put another way, the Cotton test imposes two requirements on the claimant: (1) the claimant must produce objective medical evidence of an impairment or impairments; and (2) he or she must show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom; the claimant need not produce objective medical evidence of the symptoms, or the severity thereof:
Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment "could reasonably be expected to produce" pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. Finally, the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. This approach reflects the highly subjective and idiosyncratic nature of pain and other such symptoms. Thus, the ALJ may not reject subjective symptom testimony under the Cotton analysis simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.
Smolen, 80 F.3d at 1281-82 (citations and quotations omitted); see also Bunnell, 947 F.2d at 347-48.
Accordingly, if the plaintiff has met the burden of showing that his or her impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of the symptoms plaintiff's testimony describes, and there is no evidence suggesting that the plaintiff is malingering, the ALJ may reject testimony regarding the severity of plaintiff's symptoms only by providing clear and convincing reasons for doing so. Smolen, 80 F.3d at 1283. General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. See Lester, 81 F.3d at 834 (ALJ required to provide "specific, cogent reasons for the disbelief," quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)); Dodrill, 12 F.3d at 918; Varney, 846 F.2d at 584.
Here, defendant acknowledges that plaintiff produced objective medical evidence of an impairment, and that — unless there was evidence of malingering — the ALJ was required to offer specific, clear and convincing reasons for rejecting plaintiff's testimony about the severity of his pain and other symptoms. Defendant's Brief at 14. This court agrees that plaintiff produced evidence of an impairment, or combination of impairments, that could reasonably be expected to produce some degree of the symptoms to which plaintiff testified. This evidence includes the statement from plaintiff's chiropractor in 1996 that plaintiff is "unable to perform work activity of any kind presently or in the immediate future;" Tr. 188; the chiropractor's diagnosis that plaintiff suffered from an "acute biomechanical lesion of the lumbar spine;" "acute strain/sprain of the sacroiliac spine;" and "acute moderate muscle spasm;" Tr. 201; Dr. Wright's January, 1997, report that plaintiff suffered from "fairly severe lumbar degenerative changes;" Tr. 210; and Dr. Carvalho's report that plaintiff suffered from "decreased ankle extension and dorsiflexion," and "decreased sensation in a glove and stocking distribution;" Tr. 209.
Although the Record indicates some recurring concern about plaintiff's consumption of alcohol, and the ALJ and counsel questioned plaintiff about this issue at the hearing, there is no evidence or argument presented that this consumption should be construed as a form of malingering. Moreover, there are no other findings in the Record or arguments from counsel pertaining to possible malingering. Accordingly, pursuant to the authorities provided above, the ALJ was required to offer specific, clear and convincing reasons for rejecting plaintiff's testimony about the severity of his pain and other symptoms.
Factors relevant to the ALJ's credibility determination include: plaintiff's daily activities; the location, duration, frequency, and intensity of his or her symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication; treatment, other than medication; measures used to relieve symptoms; and functional limitations caused by the symptoms. Smolen, 80 F.3d at 1284; 20 C.F.R. § 404.1529(c)(3). In determining that subjective testimony is not credible, the ALJ may rely on:
(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.
Smolen, 80 F.3d at 1284 (citations omitted). "Several courts," including the Ninth Circuit,
have recognized that disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations. See, e.g., Cohen [v. Secretary of Dept. of Health Human Servs.], 964 F.2d [524], 530-31 (6th Cir. 1992) (ruling that a claimant should not be penalized for attempting to maintain some sense of normalcy in her life); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting that a disability claimant need not "vegetate in a dark room" in order to be deemed eligible for benefits). See also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("Many home activities are not easily transferable to. . . the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication"). Only if the level of activity were inconsistent with Claimant's claimed limitations would these activities have any bearing on Claimant's credibility.
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
In Fair, the Ninth Circuit recognized that a claimant's allegations may be discredited when the claimant is able to spend a substantial part of the day engaged in pursuits involving the performance of physical functions that are transferable to a work setting. Fair, 885 F.2d at 603.
Here, the ALJ concluded that plaintiff's testimony was "not entirely credible in light of the claimant's own description of his activities and life style, the degree of medical treatment required and the claimant's assertions concerning his ability to work." Tr. 27. The ALJ's reasons for this conclusion fall short of being clear and convincing. The Ninth Circuit requires the ALJ to "state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen, 80 F.3d at 1284. In his ruling, the ALJ acknowledges that the "documentary evidence" reveals that plaintiff suffers from foot and hip pain. Tr. 27. He then states that plaintiff "testified that he stopped working at washing cars in September, 1996, because he could no longer perform a full eight hours of work at his occupation." Id. The ALJ goes on to summarize plaintiff's testimony: "[plaintiff] further testified that he continues to go to the car wash every day, and will wash . . . one to four cars a day, depending on how many vehicles show up, and the weather conditions." Id. Although there is no direct explanation for this passage, the ALJ may have intended to emphasize what he perceived to be an apparent inconsistency in plaintiff's testimony to support the ALJ's conclusion that plaintiff was not credible.
The ALJ's summary of plaintiff's testimony is inaccurate, however. A review of the transcript of plaintiff's testimony, Tr. 36-52, reveals that plaintiff never testified as the ALJ claimed that he "stopped working at washing cars in September, 1996, because he could no longer perform a full eight hours of work at his occupation."
The ALJ may have meant to reference information provided on plaintiff's "disability report," which plaintiff completed with assistance from an agency reviewer on September 9, 1996. Tr. 79-86. In what appears to be the reviewer's handwriting, plaintiff responded to Question 3A on the form, "When did your condition finally make you stop working?" with the date of September 6, 1996. Tr. 79. Directly above this response, however, plaintiff indicated, in response to another question, that "I have been washing cars whenever I can," but that back problems have limited — sometimes completely — the hours in a given day that he was able to work. Id. Plaintiff made no assertion in his testimony at the hearing before the ALJ that he "stopped working" in 1996. Instead, as in his answers on the disability form, plaintiff was forthright about his attempts to continue working as much as he was able. See generally Tr. 38-45 (plaintiff's testimony that he reports to his car washing job every day, gets paid $10 per car but must turn over half to the owner, washes one or two cars a day, sometimes three or four on a "good summer day," and could not earn $500 per month because of limitations created by pain in his hip, lower stomach, lower back and from muscle spasms). More specifically, he testified that he could not perform a job requiring him to be on his feet for six hours a day, Tr. 42, he lacks the strength to lift wash buckets, Tr. 43, that muscle spasms in his hands sometimes force him to stop working, Tr. 45, and that standing for more than three or four hours causes pain and requires him to rest. Id.
The ALJ failed to provide any reasons for discrediting this testimony, but instead summarily concluded that plaintiff's income appeared to depend more on the "vagaries of the car washing industry . . . than being limited by his disability," because plaintiff "is apparently capable of washing up to five cars a day, for which he is paid $10.00 per car. . . ." Tr. 27. As already noted, there are no grounds in the Record for concluding that plaintiff is capable of washing five cars per day, or that plaintiff earns $10 per car washed. The ALJ also commented that "the aches and pains [plaintiff] describes are no more than any individual in his 60's would feel after a day of labor," id., but offers no substantiation for this belief, or any grounds for rejecting the severe limitations in plaintiff's ability to work that are described in plaintiff's testimony.
The ALJ's commentary that plaintiff's descriptions of his suffering are "no more than any individual in his 60's would feel after a day of labor;" Tr. 27, "perfectly normal," Tr. 28, "perfectly understandable," id., and "the normal aches and pains one feels" entering the seventh decade of living, id., may reveal what the ALJ's expectations are for older workers, but fails to provide any substantive grounds for discrediting plaintiff's testimony or for concluding that plaintiff suffers from no severe impairment.
After fully and fairly considering all the evidence regarding the aspects of plaintiff's testimony, his medical records, and his activities, this court is compelled to determine that the ALJ's credibility findings and interpretation of the record were not supported by substantial evidence. See Reddick, 157 F.3d at 723, citing Sisco v. Dept. of Health Human Servs., 10 F.3d 739, 743-46 (10th Cir. 1993). This court concludes that the ALJ provided insufficient reasons for discounting plaintiff's credibility, and that his findings were unsupported by substantial evidence based on the record as a whole. Where the ALJ improperly rejects the claimant's testimony regarding limitations, and the court would conclude that the claimant is disabled if the testimony were credited, the court "will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney v. Secretary of Health Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988) (Varney II). Rather, in such instances, the court is to credit the testimony as a matter of law. Id., see also Lester, 81 F.3d at 834.
In this case, however, a remand for benefits is not appropriate. Even if plaintiff's testimony were credited as a matter of law, this court would be unable to ascertain whether plaintiff would be considered disabled under the proper standards. Accordingly, this case must be remanded for further administrative proceedings to determine whether plaintiff qualifies for SSI benefits. See Schneider v. Commissioner, 223 F.3d 968 (9th Cir. 2000) (the court should remand for an award of benefits in cases in which the evidence, when given the effect required by law, demonstrates that no purpose would be served by remanding for further proceedings); see also Reddick, 157 F.3d at 729 (proper to remand for further proceedings when it is unclear from the administrative record whether a plaintiff is entitled to benefits). Because this court concludes that the Record has not been fully developed, this action must be remanded for further proceedings.
B. Plaintiff's other arguments
In the hope of facilitating the renewed administrative proceedings, this court addresses other issues plaintiff has raised. Plaintiff also contends that the ALJ erred in concluding that plaintiff suffers from no severe impairment because the ALJ failed to fully "quantify" plaintiff's impairments by obtaining medical source statements. Under 20 C.F.R. § 416.912(e), the agency may be compelled to re-contact medical sources when additional information is necessary to reach a decision on a claimant's application. Plaintiff asserts that the ALJ did not meet his duty to obtain clarification regarding the extent of plaintiff's disability from the agency physicians who examined him.
Counsel for defendant argues that plaintiff waived this argument because he offered no objections when the ALJ received the "exhibits of record" at plaintiff's hearing. See Defendant's Brief at 17; Tr. 37. This court concludes, however, that a plaintiff's acceptance of exhibits of record at the beginning of a hearing cannot be construed as a "waiver" of any subsequent challenge that the ALJ failed to develop the record. As plaintiff's counsel contends, the possible failure of an ALJ to meet that duty may not be apparent until after the ALJ has provided a formal interpretation of the evidence in the record. In this case, it appears that some further development of medical evidence regarding the extent of plaintiff's impairments would be significantly beneficial.
In a related matter, plaintiff also argues that the ALJ erred by rejecting physicians' opinions in this case. Specifically, plaintiff contends that the ALJ improperly rejected what counsel construes to be an opinion by "the agency's reviewing doctor, Sharon Johnson, M.D.," that "plaintiff is limited to medium exertional level work." Plaintiff's Opening Brief at 3, citing Tr. 156. In counsel's Reply Brief, plaintiff then refers to the "ALJ's failure to discuss the state agency doctor's finding that Plaintiff has a `severe' impairment," Reply Brief at 12, and refers again to Tr. 156 in discussing "the state agency's finding that Plaintiff has severe impairments." Reply Brief at 13.
This court has reviewed Tr. 156, and the entire Residual Physical Functional Capacity Assessment found at Tr. 155-62. While defendant does not directly dispute plaintiff's interpretation of this assessment (see generally Defendant's Brief at 18; defendant argues in response that ALJ's failure to refer to assessment is "harmless error"), the assessment does not — as plaintiff's counsel alleges repeatedly — explicitly state an "opinion" from Dr. Johnson that "plaintiff has a severe impairment" or "severe impairments." Rather, the Record at Tr. 156 consists of the second page of plaintiff's assessment that Dr. Johnson completed in January, 1997. Dr. Johnson indicated on this page that plaintiff's exertional limitations include occasionally lifting 50 pounds; frequently lifting 25 pounds; and standing or walking for a total of six hours in an eight-hour workday. Tr. 156. Plaintiff's construction of Tr. 156 as an "opinion" or "finding" from Dr. Johnson that plaintiff suffers from "severe impairments" appears based upon counsel's interpretation of the applicable medical-vocational guidelines, or "grids." See Plaintiff's Opening Brief at 14-20; Tr. 48-50. While plaintiff may theorize that Dr. Johnson's limitations should compel a conclusion that plaintiff suffers from "severe" impairments, describing this theoretical conclusion as the doctor's own "findings" or "opinion" is disingenuous. Dr. Johnson herself does not appear to use the terms "severe" or "impairment" anywhere in this assessment (and certainly does not do so at Tr. 156, to which plaintiff's counsel repeatedly cites).
Regardless of the confusion engendered by plaintiff's misleading references and citations, this court agrees that the ALJ failed to fully address the varying medical opinions presented in this case. First, defendant's counsel acknowledges that the ALJ was required to "consider the findings of State Agency consulting physicians." Defendant's brief at 18. Moreover, the extent of the medical evidence presented in this record, when considered with the ALJ's failure to properly assess plaintiff's testimony, supports the conclusion that further administrative proceedings are necessary to determine whether plaintiff is entitled to SSI benefits. The Ninth Circuit has held that remand for payment of benefits, rather than for further proceedings, is required as a matter of law if (1) the ALJ has failed to provide legally sufficient reasons for rejecting the medical evidence supporting the disability; (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. See Harman v. Apfel, 211 F.3d 1172, 1178-79 (9th Cir. 2000), citing Smolen, 80 F.3d at 1292.
The medical evidence includes the assessment at Tr. 155-62; the statement from plaintiff's chiropractor in 1996 that plaintiff is "unable to perform work activity of any kind presently or in the immediate future;" Tr. 188; the chiropractor's diagnosis that plaintiff suffered from an "acute biomechanical lesion of the lumbar spine;" "acute strain/sprain of the sacroiliac spine;" and "acute moderate muscle spasm;" Tr. 201; Dr. Wright's January, 1997 report that plaintiff suffered from "fairly severe lumbar degenerative changes;" Tr. 210; and Dr. Carvalho's report that plaintiff suffered from "decreased ankle extension and dorsiflexion," and "decreased sensation in a glove and stocking distribution;" Tr. 209.
In Harman, the Ninth Circuit concluded that remanding for further proceedings was appropriate, in part because there had been no testimony from a vocational expert that the claimant's limitations would render the claimant unable to engage in any work. Harman, 211 F.3d at 1180, citing Varney II, 859 F.2d at 1400; Smolen, 80 F.3d at 1291; Reddick, 157 F.3d at 729; Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). Such vocational testimony would be necessary here, if plaintiff is found to suffer from a severe impairment or combination of impairments.
VI. CONCLUSION
The court concludes that the ALJ failed to provide adequate grounds for discrediting plaintiff's testimony, and that his conclusion that plaintiff does not suffer from a severe impairment is not supported by substantial evidence. Further administrative proceedings are necessary, in which the record, particularly the medical evidence, may be more fully developed to determine whether plaintiff is entitled to SSI benefits. Based upon the foregoing, this case is therefore remanded to the Commissioner for further administrative proceedings consistent with this Opinion.
IT IS SO ORDERED.