Unpublished Disposition, 872 F.2d 429 (9th Cir. 1988)

MEMORANDUM^* 

Maria Medina appeals from a grant of summary judgment affirming the decision of the Secretary of Health and Human Services that Medina is ineligible for Supplemental Security Income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (1982 & Supp. IV 1986). She claims that the Secretary's decision is unsupported by substantial evidence and that the Secretary and the district court committed several errors of law.

Mrs. Medina applied for benefits on May 20, 1985. She claimed she was precluded from substantial gainful activity due to a number of impairments, including arthritis, headaches and depression caused by a 1980 hysterectomy. Five physicians examined Mrs. Medina in the relevant period¹  and reported on her limitations: Dr. Samuel Prepetit, Mrs. Medina's treating psychiatrist; Dr. Seymour White, her treating rheumatologist; Dr. Mohinder Sohal, a cardiovascular specialist; and Drs. James Vargas and Jack Rotberg, psychiatrists, who examined Mrs. Medina at the request of the California Department of Social Services.

The Administrative Law Judge ("ALJ") issued his decision denying Mrs. Medina benefits on August 21, 1986. When the Appeals Council refused Mrs. Medina's request for review on November 20, 1986, the denial of benefits became the final decision of the Secretary. Mrs. Medina filed a complaint in district court challenging the Secretary's decision on January 20, 1987. The district court granted the Secretary's motion for summary judgment. Order Adopting Findings, Conclusions, and Recommendations of United States Magistrate, Medina v. Secretary of Health & Human Servs., No. CV-87-375-ER (RWR), at 1 (C.D. Cal. Oct. 21, 1987). We review the grant of summary judgment de novo. Kellar v. Bowen, 848 F.2d 121, 123 (9th Cir. 1988). We also review issues of law de novo. Ortega v. United States, No. 87-5924, slip op. 14375, 14378 (9th Cir. Nov. 21, 1988) (per curiam).

Mrs. Medina claims that the ALJ erred in disregarding part of her own testimony and part of a letter from her daughter that detailed Mrs. Medina's condition. The ALJ may discount a claimant's pain testimony when the claimant fails to submit objective medical findings that establish a medical impairment that would normally produce pain. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); 42 U.S.C. § 423(d) (5) (A) (1988). However, if there are objective medical findings that would normally produce some amount of pain, but the claimant testifies that she suffers from more pain than would be expected ("excess pain"), the ALJ may discount the testimony only after making specific findings that justify his decision. Cotton, 799 F.2d at 1407.

Here, the ALJ discounted Mrs. Medina's testimony because, in light of the "minimal medical findings", her "allegations of severe pain and physical limitations secondary thereto are not credible to the degree alleged." This is insufficient. In Cotton, the court stated explicitly that excess pain, by definition, is "pain that is not supported by objective medical findings. If the Secretary were free to disbelieve excess-pain testimony solely on the grounds that it was not supported by objective medical findings, then the Secretary would be free to reject all excess-pain testimony. This court has rejected that interpretation of [42 U.S.C.] Sec. 423(d) (5) (A)." Id.

A similar argument applies to the ALJ's discounting of the testimony of Mrs. Medina's daughter. Lay opinion as to a claimant's impairments is competent evidence that an ALJ cannot ignore. Smith v. Bowen, 849 F.2d 1222, 1226 (9th Cir. 1988); 20 C.F.R. Sec. 404.1513(e) (2) (1988). When that testimony relates to the question of excess pain, it, too, may only be discounted upon specific findings by the ALJ.²  The ALJ failed to make these findings.³ 

Because the ALJ's decision was based on legal error, it cannot stand. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). We still must decide whether to remand the case or simply grant benefits. This decision is within the discretion of the court. Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Remand is appropriate "where additional proceedings could remedy defects." Bilby v. Schweiker, 762 F.2d 715, 719 (9th Cir. 1985). Here, because conflicts in the evidence still exist, remand is appropriate.

On remand, the ALJ should accept into evidence the report of Dr. Paul Verdier, a psychologist, and James Lyons, a psychological assistant, based on an examination conducted at the request of the ALJ in May 1986. For some reason, the report was apparently not received until May 1987, well after the ALJ issued his decision. The ALJ would have been required to consider this report if it had been received on time. The ALJ should also accept into evidence the report of Dr. Prepetit from July 1987 as well as the reports of Dr. Lawrence Ryan, dated February 1987, and Dr. Samuel Miles, dated March 1987. Although these latter reports would not require remand under Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984), and Allen v. Secretary of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984), we see no reason why they should not be considered where, as here, remand is required for a separate reason and the ALJ must make a new determination. That the reports are summaries of previous work or are based on only a single examination is relevant only to the question of the weight which the ALJ should give to them.⁴ 

REVERSED AND REMANDED.