Unpublished Disposition, 872 F.2d 430 (9th Cir. 1988)

MEMORANDUM^* 

Mary Trottier appeals the Secretary of Health and Human Services' denial of her application for disability benefits. Trottier suffers from a wide range of ailments, which she attributes to her inhalation of toxic fumes while she was employed as a senior mechanical assembler. We reverse and remand to the Secretary for the immediate payment of benefits.

Trottier worked as a senior mechanical assembler from June 1975 to June 1980. In 1977, she began to experience lower back pain, numbness in her limbs, and severe breathing problems. Because of these ailments, she was forced to stop working in June 1980. She has not worked since that time. Trottier believes that toxic fumes from the soldering machines at her workplace caused these ailments.

This appeal involves Trottier's second and third applications for disability insurance benefits and for supplemental security income benefits. After her second application was rejected by the Secretary of Health and Human Services ("the Secretary"), the district court ordered her case remanded to the administrative law judge ("the ALJ") for further findings regarding Trottier's former work, her residual functional capacity, and medical testimony to the effect that inhalation of toxic fumes accounted for her pulmonary problems. The Secretary then ordered the ALJ to consolidate the review of Trottier's second and third applications for benefits.

The ALJ concluded that Trottier has been disabled since April 11, 1984. The ALJ found that Trottier's mental impairments justify a finding of disability, even though her physical impairments do not justify such a finding.

[H]er mental impairment is best considered under medical listing 12.06, anxiety related disorder. The record shows that the claimant has anxiety as evidenced by persistent irrational fear to avoid obnoxious fumes as a recurrent recollection of her past work accident, as well as persistent somatic symptoms with no physical causes. As a result, the claimant demonstrates ... marked difficulties in maintaining social functioning and failure to complete tasks in a timely manner.

The ALJ concluded that the onset date of Trottier's disability was April 11, 1984, the date on which an internist (Dr. Robert Bader) observed that Trottier suffered from "extreme anxiety and somatization." The ALJ also expressly credited Trottier's testimony about her "subjective symptoms of pain, numbness and breathing difficulties."

The Secretary rejected the ALJ's finding that Trottier is disabled. The Secretary reasoned that Trottier's mental impairments "do not significantly affect her residual functional capacity for light work." The magistrate recommended that the Secretary's final decision be affirmed; the district court accepted the magistrate's recommendation on February 29, 1988.

The Secretary argues that this court lacks jurisdiction because Trottier never objected to the magistrate's legal conclusion that the Secretary's decision was based on substantial evidence. Compare McCall v. Andrus, 628 F.2d 1185, 1190 (9th Cir. 1980) (a "judicial determination of whether a finding of fact is supported by substantial evidence presents only an issue of law"), cert. denied, 450 U.S. 996 (1981). In Greenhow v. Secretary of Health and Human Services, 863 F.2d 633, 636 (9th Cir. 1988), the court noted a split of authority in this circuit with respect to the question of whether a plaintiff's failure to object to a magistrate's conclusions of law constitutes a waiver under 28 U.S.C. § 636(b). In order to "avoid surprise and the unjust forfeiture of rights believed to have been established" by some of this circuit's opinions, the court in Greenhow held that a plaintiff's failure to object to a magistrate's conclusion of law does not constitute a waiver. The rule that a plaintiff's failure to object to a magistrate's conclusion of law does not constitute a waiver is also justified by the absence of any language in the text and legislative history of 28 U.S.C. § 636(b) indicating that failure to object to a magistrate's conclusion of law constitutes a waiver. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). We will therefore proceed to review the district court's legal conclusion that the Secretary's decision was supported by substantial evidence.

"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938). "The substantiality of the evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

The Secretary's finding that Trottier is not disabled is not supported by substantial evidence. On the contrary, the record clearly supports the ALJ's conclusion that Trottier's mental impairments render her disabled.

The Social Security Act defines "disability" as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment...." 42 U.S.C. § 423(d) (1) (A). We do not read 42 U.S.C. § 423(d) (1) (A) as requiring rigorous proof that "subjective" symptoms are the result of a physical or mental impairment. "Although we have held that 'subjective complaints [of pain] must be accompanied by medical evidence' ... we have never required that the medical evidence identify an impairment that would make the pain inevitable.... if such a requirement was imposed, 'there would be no occasion for subjective, personal testimony in a disability hearing'. Furthermore, requiring that pain be corroborated by such vigorous proof would overlook the fact that pain is a highly idiosyncratic phenomenon, varying according to the pain threshold and stamina of the individual victim." Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (citations omitted).

Trottier's testimony establishes that she is unable to engage in any substantial gainful employment. The ALJ's fourth finding was that Trottier's testimony regarding her subjective symptoms of pain, numbness and breathing difficulty is credible. The Secretary expressly adopted findings numbers 1 through 8 in the ALJ's decision and thereby accepted the credibility of Trottier's testimony. See also Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1398 (9th Cir. 1988) (adopting Sixth Circuit rule that, if the Secretary fails to articulate reasons for refusing to credit a claimant's subjective pain testimony, then the Secretary, as a matter of law, has accepted that testimony").

Trottier testified that she has extremely limited capacities. She testified that she can sit only about 15 minutes without discomfort; that she can walk only one city block; and that squatting or raising her arms to shoulder level causes her pain. She can only lift items of five pounds or less and regularly drops even very light items because of "numbness" in her hands. She has difficulty concentrating and "remembering things" for even a few moments. Her breathing difficulties are sometimes so severe that she "can't even take 25 feet without feeling like [she is] going to pass out."

Not surprisingly, her daily activities are few. She does only limited, light housework; she does not cut her own lawn or care for shrubs; and when she shops, she confines herself to small items. She only sees friends "once in a while" and could not force herself to follow a psychologist's instructions to increase her social contacts.

The observations of two of Trottier's treating physicians corroborate Trottier's testimony about her limited capacities. Dr. James Lineback is a board certified internist who has treated Trottier for her pulmonary problems; he concluded that " [i]t is certainly doubtful due to the severity of the patient's symptoms that she will ever return to the work force in a productive capacity. Thus, thought should be given to permanent and total disability." Dr. Ted Lonergan, Trottier's family practitioner, similarly concluded that Trottier is limited to "little movement on a regular basis."

The record also establishes that Trottier's inability to engage in any substantial gainful activity is "by reason of" her mental impairment. On April 29, 1981, Trottier was examined by Dr. Joel Frank, a psychiatrist. He found that "psychological factors" affect Trottier's physical condition resulting "in symptoms and dysfunction" and that the "psychiatric disability is permanent." His testing revealed "significant signs of emotional disorder ... the testing profile is definitely not normal."

Dr. Chu Kee Ryu, a psychiatrist, examined Trottier in March of 1985. He found that Trottier has somatic preoccupation, dysthymic disorder, generalized anxiety disorder with somatization, and dependent personality disorder. Based on his examination, he concluded that Trottier is "a poor candidate for vocational rehabilitation." In March of 1985, Trottier was also examined by a psychologist, Dr. David Garland. He found that the presence of psychopathology was raised.¹ 

The ALJ found that the onset date of Trottier's mental impairment was April 11, 1984, because he believed that the record does not "provide clear cut psychiatric evidence" until that date.²  In fact, the earliest "clear cut psychiatric evidence" is Dr. Frank's report of his examination of Trottier on April 29, 1981. However, Trottier has not asked this court to reconsider the Secretary's denial of her first application for benefits, which is dated December 18, 1981, and which creates a presumption of non-disability through that date. See Booz v. Secretary of health and Human Services, 734 F.2d 1378, 1379 (9th Cir. 1984). We therefore hold that the onset date for the purpose of awarding disability benefits is December 18, 1981.

We reverse and remand to the Secretary for the immediate payment of benefits.