Unpublished Disposition, 936 F.2d 577 (9th Cir. 1985)

No. 90-15932.

United States Court of Appeals, Ninth Circuit.

Before BEEZER, NOONAN and FERNANDEZ Circuit Judges.

MEMORANDUM^* 

Agnes Dobitz appeals from a decision of the district court upholding a determination by the Secretary of Health and Human Services (the Secretary) of the date of onset of her disability. We reverse and remand.

In determining the onset date of Dobitz's disability, the Administrative Law Judge (ALJ) summarized the vocational expert's testimony as follows: "Taking into account all of the pertinent medical and vocational factors pertaining to the claimant, the vocational expert enumerated a significant number of jobs existing in the national economy which [Dobitz] could be expected to successfully perform including parking lot attendant and cashier II...." However, when the vocational expert took into account all of the pertinent medical information, including Dr. Carl E. Drake's psychiatric evaluation, the expert actually concluded that " [t]hese limitations coupled with the physical complaints would preclude the jobs I have suggested."

Our standards regarding the use of a vocational expert's testimony are well established: "Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant." Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (emphasis in Embrey) . When a hypothetical "does not reflect all the claimant's limitations, we have held that the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy." DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (citations omitted). Moreover, "the failure to include [a] mental impairment would of itself require remand for reconsideration after the record is developed." Id (citation omitted).

The vocational expert's conclusion that Dobitz could work as a parking lot attendant or cashier came in response to a hypothetical which did not include any reference to Dobitz's mental impairments. And it is clear that Dobitz suffered from some mental impairments prior to 1985. As the ALJ recognized, Dobitz "complained of considerable depression associated with her pain, as early as August 1983, and again in November 1983." The ALJ also concluded that Dobitz's depressive disorder "worsened in association with her constant pain." In January, 1984, Dobitz's family physician prescribed tranquilizers in addition to pain medication, and on April 24, 1984, doctors at the Stanford University Pain Clinic prescribed Desyrel, an antidepressant, for "night time hypnosis." Dobitz also said she sometimes drank six to eight beers a day to deal with her pain and stress.

In short, although the vocational expert testified that Dobitz could work as a parking lot attendant or cashier despite her back pain, there is no evidence she could perform these or any other job while suffering from her back pain and her depressive disorder and inability to concentrate, as those conditions existed before January 1, 1985. Consequently, the Secretary's decision is not supported by substantial evidence, and we are compelled to remand this case to the Secretary for further findings with respect to the onset date of Dobitz's physical and mental limitations and for further testimony from a vocational expert.

We deny appellant's request for attorney's fees on appeal. The Secretary's position was substantially justified because it had a reasonable basis both in law and fact. 28 U.S.C. § 2412(d) (1) (A); Pierce v. Underwood, 487 U.S. 552, 565 (1988); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th Cir. 1990).

REVERSED AND REMANDED TO THE SECRETARY FOR FURTHER FINDINGS.