Gray v. Secretary of Health and Human Services, 874 F.2d 816 (9th Cir. 1983)

MEMORANDUM^** 

Edward Gray appeals from the district court's decision upholding the determination of the Secretary of Health and Human Services (the Secretary) that Gray is not entitled to disability insurance benefits. The Secretary's decision to deny benefits " 'will be disturbed only if it is not supported by substantial evidence or it is based on legal error.' " Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528. 529 (9th Cir. 1986)). See 42 U.S.C. § 405(g). We review the district court's decision de novo. Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1278 (9th Cir. 1987).

We reverse the district court and direct that this matter be remanded to the Administrative Law Judge (ALJ) to make findings and reconsider his decision in accordance with this disposition.

BACKGROUND

Gray is a 63-year-old high school graduate with relevant past work experience as a school bus driver. In 1985, he filed a request for disability insurance benefits alleging disability because of emphysema, glaucoma, a hernia, and congestive heart failure. Gray stated he has been disabled since he stopped working in June of 1979. Because Gray was last insured for purposes of entitlement to disability benefits on December 31, 1983, he must demonstrate that he was disabled prior to that date. See 42 U.S.C. § 423(c); 20 C.F.R. Sec. 404.1520.

At his administrative hearing, Gray testified that he stopped working in 1979 for two reasons. First, he "became completely exhausted" by the physical strain of washing and cleaning the school bus, as required by his employer. Second, Gray found himself unable to drive safely at night " [b]ecause of glare from other lights, headlights, and the glare of the dome lights in the bus, I simply couldn't see well enough to drive those buses." He experienced blurred vision and felt "blinded" by the headlights of oncoming cars. In fact, Gray testified that because of poor night vision he had done very little night driving for about ten years.

Gray testified that his vision problems increased in 1982 when glaucoma was diagnosed and he began treating the condition with various medications. Gray claimed a number of adverse reactions to the medications, including blurred vision, light sensitivity, a slowing of his heart rate and a lack of energy which made it difficult even to get up and down stairs.¹  Also, medical evidence showed that Gray suffered from hyperinflated lungs since 1979 and experienced shortness of breath and tightness in his chest at least as early as 1983. He has a "long history" of chronic obstructive pulmonary disease. In fact, the visual impairment, shortness of breath and his lack of energy forced Gray to give up golf and fishing by 1983.² 

After hearing Gray's testimony and reviewing the other medical evidence presented, the ALJ found that (1) Gray had not engaged in substantial gainful activity since 1979; (2) prior to December 1983, Gray had a hernia, mild back pain, benign prostatic hypertrophy and glaucoma, but no combination of impairments equal to an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 2; (3) prior to December 1983, Gray had "the residual functional capacity at [sic] least light work which did not require fine visual acuity"; and (4) Gray's work as a bus driver did not require performance of work-related activities precluded by his limitations. Therefore, the ALJ concluded Gray was not prevented from performing his past relevant work in 1983 and was therefore not disabled at any time prior to the expiration of his disability insured status.

On appeal, Gray contends that the ALJ erred by discounting the credibility of Gray's testimony regarding his impairments and the side effects of his glaucoma medications without supporting the decision to do so with specific findings. Gray also argues that the ALJ's conclusion that Gray was capable of performing work as a bus driver was not supported by substantial evidence.³ 

DISCUSSION

Great weight is generally given to an ALJ's credibility determination. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985)). In this case, however, the ALJ's decision does not explicitly accept or reject Gray's testimony. There is no express indication that the ALJ considered Gray's claims of general exhaustion, inability to perform maintenance tasks required at work and vision problems (particularly night blindness) prior to 1983. This testimony was certainly relevant to Gray's ability to perform his past work. Therefore, the ALJ either ignored this testimony or did not consider Gray credible. When an ALJ's decision is based on a credibility assessment, "there must be an explicit finding as to whether the claimant's testimony was believed or disbelieved and the testimony must not be entirely discounted simply because there was a lack of objective findings." Hudson v. Bowen, 849 F.2d 433, 434-45 (9th Cir. 1988). See Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981) (an ALJ errs if he "neither expressly discredits a claimant's testimony nor articulates any reason for questioning [his] credibility"). There was no explicit credibility finding in this case and the omission was improper.⁴ 

Similarly, this circuit recently held that "if the Secretary chooses to disregard a claimant's testimony as to the subjective limitations of side effects [of a claimant's medications], he must support that decision with specific findings similar to those required for excess pain testimony, as long as the side effects are in fact associated with the claimant's medication(s)." Varney v. Secretary of Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 1988) (citations omitted). The ALJ's decision neither mentions the side effects complained of by Gray nor discusses which side effects are associated with Gray's medication.⁵  This omission is also improper. We therefore remand to the ALJ for reconsideration and entry of explicit findings regarding Gray's credibility and the side effects of his medications.

We add one point to be taken into consideration on remand. The ALJ classified bus driving as "light" work without making specific findings about the physical exertion required by Gray's past relevant work. This classification ignores Gray's testimony regarding the maintenance requirements of his job and the Social Security Administration's 1985 Disability Determination Rationale, presented to Gray at the time of the initial denial of benefits. There, the SSA stated that Gray's description of his job duties as a bus driver match those provided by the Department of Transportation and that "the DOT describes this as medium work."⁶  This evidence, directly contradicting the ALJ's classification, was not addressed by the ALJ below, but should be considered on remand. Cf. Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (the ALJ did not adequately consider the distinction between categories of work in the Social Security disability scheme).

REVERSED AND REMANDED to the ALJ for reconsideration and entry of findings in accordance with this disposition.⁷ 

O'SCANNLAIN, Circuit Judge, Dissenting:

I respectfully dissent from the conclusion that Hudson and Lewin require the ALJ to make a specific finding with respect to the glaucoma issue. As I read these cases, the ALJ is only required to make specific findings in the event that the claimant's testimony is the sole or crucial evidence in the case and the ALJ discredits it or ignores it to claimant's prejudice. Here, the ALJ relied on the claimant's own treating physician, pointing to test results showing visual acuity of 20/50 in the right eye and 20/30 in the left eye (ALJ Decision, p. 3).

For the same reasons I dissented in Crayton v. Bowen, also decided today, I dissent here. I would not apply Varney to the medication contention.

Based on the record taken as a whole (even crediting fully the side-effects testimony), I would conclude that the ALJ properly found that there was sufficient evidence to support his decision, and I would therefore affirm the district court.