Unpublished Disposition, 930 F.2d 920 (9th Cir. 1987)

MEMORANDUM^* 

Plaintiff-appellant Margarita Juarez appeals the District Court's grant of summary judgment to the Secretary of Health and Human Services upholding her denial of disability insurance and supplemental social security benefits. We reverse with directions to award benefits.

Margarita Juarez is a 60 year-old¹  woman. Juarez worked as a grocery store cashier until 1980 when she left her job because she was experiencing pain and swelling in her right leg. Upon examination, her physicians determined that one vein and one artery supplying her right leg were blocked. In early 1981, Juarez had surgery to restore proper circulation to her leg. However, she complains of persistent pain and swelling in her leg and she has not returned to work.

A. Procedural History.

On April 7, 1986, Juarez filed applications for disability insurance benefits and supplemental social security income benefits with the Social Security Administration ("Administration"). Her applications were denied by the Administration initially and upon reconsideration. She requested a hearing in front of an Administrative Law Judge (ALJ). The ALJ, after a hearing on March 19, 1987, determined Juarez ineligible for benefits. Juarez requested review of this decision by the Administration's Appeals Council; however, the Appeals Council denied her request. The ALJ's decision thus became the final decision of the Administration.

In August 1987, having exhausted her administrative remedies, Juarez filed a complaint for judicial review of the Administration's decision. After the parties filed cross-motions for summary judgment, the district court denied Juarez's motion and granted the Administration's. Thus the decision of the ALJ denying Juarez benefits was affirmed.

B. Medical History.

Juarez's medical history demonstrates that she has suffered from chronic venous insufficiency since at least 1980. Dr. Luna, one of Juarez's physicians, first examined Juarez on October 31, 1980. He found Juarez to be suffering from "moderate edema²  and tenderness of the right leg". Dr. Luna prescribed Juarez elastic support stockings.

On December 4, 1980, Dr. Longinos Marroquin examined Juarez. Dr. Marroquin administered a venogram on December 18, 1980.³  The procedure showed that Juarez's external iliac vein was blocked. Dr. Marroquin referred Juarez to Dr. Benjamin Gibbs, a vascular surgeon, for further consultation.

Dr. Gibbs saw Juarez on December 19, 1980. He noted decreased pulses in her right leg and possible blockage of an artery serving that leg. Dr. Gibbs recommended Juarez undergo right groin surgery, including removal of any obstructions and/or reconstruction of the artery and vein as necessary.

Juarez was admitted to the hospital for surgery on January 27, 1981. The surgery confirmed both Dr. Marroquin's and Dr. Gibbs's diagnoses. Dr. Gibbs attempted to correct Juarez's condition by removing the obstruction in her artery and bypassing the obstruction in her vein. Although Dr. Gibbs's postoperative notes indicate that Juarez did "quite well," Juarez continued to suffer some leg swelling. Following the surgery, Dr. Marroquin saw Juarez several times through 1982 due to persistent complaints of right leg swelling and pain.

Dr. Gil Turullols, Juarez's most recent treating physician, began seeing her in 1985. Dr. Turullols noted that she was unable to work long hours and prescribed elastic support hose, which he noted received a "poor response."

At the request of the Administration, Dr. Jeffrey Stork examined Juarez on May 30, 1986. Dr. Stork diagnosed Juarez as suffering from a chronic lack of circulation to her right leg with persistent swelling. Dr. Stork recommended that Juarez not engage in any occupation requiring prolonged standing or walking for more than three blocks at a time. Dr. Stork also recommended that Juarez keep her leg elevated "as much as possible."

C. The Hearing.

Juarez testified that she is physically limited to standing for a maximum of three hours and walking approximately three to four blocks. Although she does perform daily household chores, she frequently stops to rest and lies down two to three hours per day to rest her leg.

Vocational expert Dr. Richard Jones testified that Juarez's past type of work as a grocery store cashier was unskilled work. According to Dr. Jones, this type of work can be performed in a sedentary or light fashion depending on the employer and position.

The ALJ questioned Dr. Jones regarding Juarez's ability to return to her particular past job as a grocery store cashier. The ALJ's hypothetical touched upon all of Juarez's physical limitations, but glossed over two crucial points--that Juarez was required to elevate her leg "as much as possible," and that it was necessary for her to lie down to rest two to three times per day. In answer to the ALJ's hypothetical, Dr. Jones indicated that Juarez could not return to her particular past job because it was performed at a light activity level and called for more than six hours standing per day. However, Dr. Jones testified that there were a significant number of cashiering jobs available in the local economy which required only a sedentary activity level. In Dr. Jones's opinion, based on the hypothetical which failed properly to take into account the two elements described above, Juarez was capable of performing sedentary work and therefore could work in a sedentary cashiering position. Juarez's counsel then questioned Dr. Jones regarding Juarez's need to elevate her leg as much as possible and to lie down to rest two to three times per day. Dr. Jones expressed serious doubt that any employer would be able to accommodate a person who needed to elevate her leg to "hip level or higher." He also concluded that if Juarez's condition forced her to lie down two to three times per day no employer would hire her.

D. The ALJ's Findings.

The ALJ determined that although Juarez has minimal swelling in her right leg which requires periodic elevation, she does not have an impairment or combination of impairments which under Administration regulations renders her presumptively disabled. He further stated that Juarez's complaints of "severe disabling pain" were not credible.

The ALJ determined that Juarez had the residual functional capacity to perform sedentary work. He also determined that Juarez's past relevant work, although she performed it as light work, could be performed at a sedentary level depending on the exact position and employer. Thus the ALJ determined that Juarez could perform her past relevant work and was not entitled to benefits.

E. Juarez's Arguments.

Juarez raises three issues on appeal. First, Juarez argues generally that the ALJ's decision that she retains the residual functional capacity to perform sedentary work is not supported by substantial evidence. Second, she argues that the ALJ's decision that she can perform her past relevant work is in error. Third, Juarez asserts that even assuming the ALJ was correct in determining that she has the residual functional capacity to perform at a sedentary level, 20 C.F.R. Sec. 404, Appendix 2, Sec. 201.01, directs the ALJ to find her disabled due to her advanced age, limited education, and previous unskilled work experience.

We agree with Juarez's first argument that the ALJ's decision is not supported by substantial evidence, and we reverse with directions to award benefits on that basis. Therefore we do not address her second and third arguments.

We review a district court's grant of summary judgment de novo. Paulson v. Bowen, 836 F.2d 1249, 1250 (9th Cir. 1988). However, the scope of our review of the ALJ's denial of benefits is limited. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1985). In order to affirm we must determine that the ALJ's findings are supported by substantial evidence. In evaluating the evidence, we must look at the entire record and not merely the particular parts of the record that lend support to the ALJ's decision. Weetman v. Sullivan, 877 F.2d 20, 22 (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).

In making his decision, the ALJ must apply the correct legal standards. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). In this regard, even if a claimant argues generally that the Secretary's decision is not supported by "substantial evidence," an analysis of the legal standards applied is appropriate. Gallant, 753 F.2d at 1455-56 (where ALJ applied incorrect legal standard his decision was not supported by substantial evidence). Where an incorrect legal standard is applied, " [t]he decision whether to remand the case for additional evidence or simply to award benefits" is within our discretion. Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Where no useful purpose would be served by further proceedings, or where the record is fully developed, we generally direct the award of benefits. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980).

Juarez presented a significant amount of evidence indicating the presence of a physical condition which renders her unable to walk, stand or sit for long periods of time. She testified to being unable to walk more than three to four blocks, being unable to stand for more than three hours, and being unable to sit for more than 30 minutes.

However, in determining that Juarez has the residual functional capacity to perform sedentary work, the ALJ summarily dismissed Juarez's testimony that pain prevents her from standing, walking, or sitting for long periods of time. In dismissing this testimony the ALJ simply found it was "not credible."

The Ninth Circuit's most recent treatment of subjective pain testimony was rendered in a series of three cases. In Bates v. Sullivan, 894 F.2d 1059 (9th Cir. 1990), a concurring majority determined that "an ALJ may disregard a claimant's subjective pain testimony unless it is accompanied by evidence of 'a medical condition that could be reasonably ... expected to produce' that pain." Bates, at 1072 (Wright, J., and Wallace, J., concurring). Bates was followed by Rice v. Sullivan, 912 F.2d 1076 (9th Cir. 1990) and Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir. 1990). Both Rice and Bunnell applied the standard articulated in Bates, and both Rice and Bunenll are currently being reheard en banc by this Circuit.

Prior to Bates and its progeny, the Ninth Circuit treated subjective pain testimony differently. In a line of cases beginning with Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986), this Circuit required an ALJ to articulate specific, legitimate reasons for discrediting subjective pain testimony. See Varney v. Secretary of Health and Human Services, 859 F.2d 1396 (9th Cir. 1988) (Varney II) ; Varney v. Secretary of Health and Human Services, 846 F.2d 581 (9th Cir. 1988) (Varney I) ; Gamer v. Secretary of Health and Human Services, 815 F.2d 1275 (9th Cir. 1987); and Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986).⁴ 

As the following discussion shows, regardless of the outcome of the en banc rehearing of Rice and Bunnell, the ALJ in this instance erred in discrediting Juarez's testimony as to subjective pain. Thus, we can assume, arguendo, that the Bates line of cases is applicable.

1. Bates Analysis.

In Bates, the court concluded that the ALJ properly disregarded Bates's testimony as to subjective pain because the objective medical evidence was inconsistent with his alleged physical limitations. Bates, 894 F.2d at 1069. There, the ALJ pointed out that Bates's own physician and treating chiropractor were both of the opinion that Bates could lift up to 20 pounds--an opinion which clearly contradicted Bates's own testimony that he could lift only five pounds.

In Rice v. Sullivan, 912 F.2d 1076 (9th Cir. 1990), claimant Rice submitted evidence to substantiate three medical impairments. Id. at 1078. While his physicians diagnosed fibrositis, they could find no objective manifestations of the disease. The ALJ specifically found that while the evidence showed that Rice had been "thoroughly evaluated by a number of physicians for different possible maladies ... no serious pathology has been found to explain his many complaints...." Id. at 1083. Thus the ALJ properly disregarded them in reaching his decision.

In Bunnell v. Sullivan, 912 F.2d 1149, 1152-53 (9th Cir. 1990), Bunnell's complaints of disabling pain were not credible because her own physicians' opinions belied her testimony that she was unable to work. Her physicians testified that she was capable of performing tasks which she herself testified she could not. There was a clear contradiction between the medical evidence of record and Bunnell's purported activity level. Thus the ALJ properly disregarded her testimony in reaching his conclusion.

Juarez's situation is distinctly different from those presented in Bates, Rice, and Bunnell. Her testimony regarding her physical limitations is consistent with her physicians' objective medical findings. In Bates, Rice, and Bunnell, there was medical evidence that directly contradicted the claimants' pain testimony. In Juarez's case there is no contradictory testimony.

Juarez's testimony as to her physical limitations was accompanied by evidence of a medical condition which could reasonably be expected to produce them. Because the evidence presented was fully consistent with and supported Juarez's testimony, the ALJ was required under Bates, Rice, and Bunnell, to consider the testimony in reaching his decision. His failure to do so renders his decision erroneous. Because there is an absence of any evidence contradicting Juarez's testimony, and the ALJ failed to consider the testimony in making his decision, his finding that Juarez can perform sedentary work is not supported by substantial evidence.⁵ 

3. Remand or Reverse?

The decision to remand a case to the Secretary for further findings or to reverse with directions to award benefits is within our discretion. Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). If we find that viewing the record as a whole substantial evidence requires the payment of benefits, we need not remand for further proceedings. Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984).

Juarez presented significant evidence of her debilitating physical condition. Her subjective pain testimony was fully supported by this evidence. The Administration's own physician, Dr. Stork, recommended that Juarez not engage in any occupation which required that she stand or walk for long periods of time and that she elevate her leg "as much as possible." Juarez is limited to sitting for a maximum of 30 minutes and must lie down and elevate her leg two to three times per day. In determining that Juarez could perform sedentary work, the ALJ failed properly to consider these limitations. When the vocational expert, Dr. Jones, was questioned regarding Juarez's ability to perform sedentary work if she were required to elevate her leg "as much as possible," he expressed serious doubt that many employers would be able to accommodate Juarez's limitation. When he was asked whether she could perform sedentary work if she were required to lie down two to three time per day to elevate her leg, he testified that no employer would allow such activity.

Our review of the entire record convinces us that no purpose would be served by remanding this case to the district court. There is substantial evidence in the record as a whole to support the determination that Juarez is disabled. There is no substantial evidence that could support a contrary conclusion. The vocational expert's testimony in response to the ALJ's flawed hypothetical has no evidentiary value. Gallant, 753 F.2d at 1456; Varney II, 859 F.2d at 1400. Moreover, Dr. Jones's response to the amended hypothetical affirmatively establishes that Juarez cannot work and is therefore entitled to benefits. Because the record is complete, the only reason to remand the case for further administrative proceedings would be to allow the ALJ to make specific findings. We have regarded that reason as insufficient, in itself, to warrant further proceedings. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988); Sprague v. Bowen, 812 F.2d 1226 (9th Cir. 1987). We therefore reverse the decision of the district court granting the Secretary summary judgment and remand with directions to award benefits to Juarez.

REVERSED.