Unpublished Disposition, 923 F.2d 861 (9th Cir. 1990)

Kathryn DUPPER, Plaintiff-Appellant,v.Louis SULLIVAN, Secretary of Health and Human ServicesDefendant-Appellee.

No. 89-56159.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1990.Decided Jan. 16, 1991.

Before NELSON and REINHARDT, Circuit Judges, and SINGLETON, District Judge.^* 

MEMORANDUM^** 

STATEMENT OF THE CASE

Appellant Kathryn Dupper, a retail salesperson, injured her back in a work-related accident in May 1983. Ms. Dupper attempted to continue working but in July 1983 she was forced to stop due to severe back pain.

Ms. Dupper began medical treatment for her back with Dr. David Freeman, a neurosurgeon. After approximately 7 months of unsuccessful therapy, including a period of hospitalization, Ms. Dupper eventually underwent back surgery in March 1984. Dr. Freeman initially reported that Ms. Dupper was "fine and asymptomatic" one month after surgery. Ms. Dupper's complaints of pain persisted, however, and on May 22, 1984, Dr. Freeman found Ms. Dupper totally temporarily disabled.

In July 1984, Ms. Dupper transferred to a new physician, Dr. Randall Smith. After examining Ms. Dupper, Dr. Smith encouraged her to continue seeing a psychologist, and to begin a physical therapy program. Dr. Smith also noted that Ms. Dupper might "indeed" fail surgical therapy and that her back pain might become permanent.

Ms. Dupper was seen by Dr. Freeman again in January 1985 at the request of Ms. Caryn Bryan, claims representative of the Industrial Indemnity Corporation. After performing an examination and reviewing records, Dr. Freeman found that Ms. Dupper's condition was permanent and stationary (i.e. was unlikely to change) and precluded performance of heavy work.

Due to continuing back pain, Ms. Dupper saw a new physician, Dr. Daniel Phillips, on March 19, 1985. Dr. Phillips, after performing a consultative orthopedic evaluation, found Ms. Dupper to be temporarily totally disabled. Dr. Phillips subsequently referred Ms. Dupper to Dr. Ronald Kent, a neurologist, who also found that Ms. Dupper was temporarily totally disabled.

Ms. Dupper was subsequently examined by an orthopedic surgeon, Dr. Levine, who initially found that Ms. Dupper was temporarily totally disabled but then stated that she was limited to light work.¹  In May 1986, Ms. Dupper was examined by another orthopedic surgeon, Dr. Edward Smith, who stated that

This patient's level of symptoms are probably somewhat exaggerated, but generally are corroborated by the history and the objective radiographic findings. I believe she has a significant physical impairment characterized principally by low back and/or right lower extremity pain related to and directly proportional to the level of physical demands placed upon her lower back. This situation would be highly resistant to improvement by any known medical-surgical treatment.

A hearing was held before an Administrative Law Judge ("ALJ") on January 9, 1987. At the hearing, Ms. Dupper testified about her various capabilities and her back pain. Ms. Dupper also stated that she performed some household chores and did her own shopping.

A non-treating medical advisor then testified that Ms. Dupper's conditions did not meet the requirements of Section 1.05C of the Listing of Impairments for a finding of presumptive disability because the evidence did not show the requisite level of muscle spasms, limitation of range of motion of the spine, or significant motor and sensory loss. The medical advisor further testified that Ms. Dupper's condition "certainly" did not preclude her from light work.

A vocational expert next testified that someone who could sit or stand for 45 minutes at a time and could walk six blocks on a flat surface, even if he or she could not bend, stoop, or crawl, could perform Ms. Dupper's former work as a retail salesperson or some other type of sedentary employment--as long as that person could sit or stand for six out of eight hours a day.

After hearing this testimony and reviewing the medical records, the ALJ denied Ms. Dupper's claims for benefits. The Appeals Council declined to review the ALJ's decision and a timely appeal was filed in United States District Court. The district court granted summary judgment for the government. Ms. Dupper appeals from that ruling on the grounds that the ALJ did not apply the correct legal standard and that the ALJ's determination was not supported by substantial evidence. We reverse and remand to the ALJ for findings consistent with this opinion.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). To survive review, the findings of the ALJ must be supported by substantial evidence and the denial of benefits must be otherwise free of legal error. Bates v. Sullivan, 894 F.2d 1059, 1061 (9th Cir. 1990). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). If the evidence supports more than one rational interpretation, we must uphold the ALJ's decision. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984); Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1989). In evaluating the evidence, however, we must consider the administrative record as a whole, and not merely isolate that evidence which supports the ALJ's finding. Gonzalez v. Secretary of HHS, No. 87-6685, slip. op. at 11087, 11092 (9th Cir. Sept. 12, 1990); Gamer v. Secretary of HHS, 815 F.2d 1275, 1278 (9th Cir. 1987).

DISCUSSION

Appellant argues that the ALJ did not adequately consider the evidence of pain. We have previously declared that subjective symptoms of pain "are a significant factor to be weighed in determining whether there exists 'disability' as defined in the Act." Gallant, 753 F.2d at 1455 (citation omitted).

If the evidence provides a sufficient objective basis on which to establish pain, the ALJ must point to which pain testimony is not credible and to the medical findings which suggest that the pain testimony is not credible. Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989). Here, our review of the ALJ's decision indicates that he failed to do so.

In his decision denying benefits, the ALJ stated as follows:

It is the opinion of the Administrative Law Judge that the claimant has a condition capable of producing pain, but that the claimant's pain has not been of a level of severity sufficient to significantly interfere with her performance of basic work related functions. It is noted that such impression is supported by diagnostically significant clinical and laboratory findings. The inability of an individual to work without some pain, does not necessarily entitle her to disability benefits.

In reaching this conclusion, however, the ALJ failed to specify which medical findings belied Ms. Dupper's extensive pain testimony. Moreover, the medical reports in this case indicate the constant complaints of Ms. Dupper, over a 4-year span, of persistent back pain. Only one physician, Dr. Edward Smith, expressed reservations about Ms. Dupper's complaints of pain. Dr. Smith also stated, however, that Ms. Dupper "has a significant physical impairment" that would be "highly resistant to improvement."

Given this evidence, the ALJ committed legal error by not adequately discussing the medical reports he disbelieved concerning Ms. Dupper's pain. The ALJ failed to indicate which identifiable aspects of Ms. Dupper's pain testimony he considered lacking in credibility or to offer a reason for such a conclusion. Again, this omission was incorrect as a matter of law.

The ALJ also erred in his evaluation of the medical records. The ALJ is entitled to make findings concerning the credibility of a witness and to weigh conflicting evidence. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). At the same time, however, the ALJ must explain why he has rejected uncontroverted medical evidence. Id. at 1395. Moreover, even if a treating physician's testimony is controverted, the ALJ must provide at least "specific, legitimate reasons" for rejecting it. Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986) (citations omitted).

Here, the ALJ stated that because Dr. Freeman was the sole treating physician, his opinion was entitled to greater weight than that of Drs. Phillips and Kent, both of whom found Ms. Dupper to be temporarily totally disabled. However, we can find no basis for the ALJ's determination that Dr. Freeman was Ms. Dupper's sole treating physician. Instead, the record indicates that Ms. Dupper was unhappy with Dr. Freeman's care and that she switched physicians shortly after undergoing surgery. Accordingly, the reports of Dr. Phillips and Dr. Kent were entitled to equal, not lesser, consideration. The ALJ's dismissal of these reports without a discussion of their contents was not based upon "substantial evidence" or "specific, legitimate reasons" and was therefore in error. Gallant, 753 F.2d at 1456.

Furthermore, our review of the record indicates that the ALJ failed to discuss the reports of Drs. Steven Davis, Edward Smith, and Randall Smith when he finally balanced competing testimony and evidence.²  Although the ALJ was entitled to disagree with these reports, he was not entitled to disregard them. His failure to address these medical findings constituted reversible error. See Vincent, 739 F.2d at 1394-5 (ALJ need not discuss all evidence, however, ALJ must explain why significant probative evidence has been rejected).

Moreover, the ALJ's failure to discuss these reports was especially important here given his conclusion that Ms. Dupper was not disabled at any time prior to the date of the January 17, 1987 hearing. Dr. Freeman, on whose reports the ALJ relied heavily, last evaluated Ms. Dupper over 2 years prior to that date. The impact of the subsequent reports--a number of which contradicted Dr. Freeman's diagnosis--should not have gone unmentioned when the ALJ reached his final decision. See id.

Finally, the ALJ based his determination upon improper vocational expert testimony. In order to have any evidentiary value, hypothetical questions to vocational experts must set forth all of a claimant's impairments, including pain. Varney v. Secretary of Health and Human Services ("Varney I"), 846 F.2d 581, 585 (9th Cir. 1988); Gallant, 753 F.2d at 1456.

Here, the ALJ based his determination that Ms. Dupper was able to return to her past work or, in the alternative, to other sedentary employment, on vocational expert testimony. The hypothetical, however, contained two fatal flaws. First, it did not include any reference to pain despite Ms. Dupper's testimony and the relevant medical evidence. This absence, standing alone, invalidates the hypothetical. See Stewart v. Sullivan, 881 F.2d 740, 744 (9th Cir. 1989) (pain should have formed part of hypothetical); Gallant, 753 F.2d at 1456 (same).³ 

Second, the hypothetical question and its answer were both based upon an assumption that Ms. Dupper could stand or sit for 6 hours out of an 8 hour day. This assumption, however, was inconsistent with Ms. Dupper's testimony that she could only sleep for a few hours without back pain, that she frequently "overdid" herself and was bedridden for one or two days, and that sitting at her knitting machine for more than one hour was painful. This inconsistency, as a matter of law, also invalidates the hypothetical. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988); see also Gallant, 753 F.2d at 1454 (stating that a person "who cannot walk, stand or sit for over one hour without pain does not have the capacity to do most jobs available in the national economy") (citation omitted).

In sum, the ALJ's determination failed to meet the applicable legal standards. Accordingly, we reverse and remand this case to the ALJ for findings consistent with this opinion.

REVERSED AND REMANDED.