Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)

MEMORANDUM^* 

Robert Hutchinson appeals a district court order upholding the decision of the Secretary of Health and Human Services to end his disability benefits because a speech impediment and weakness do not prevent him from returning to his former work as an ink salesman. In 1982 the Social Security Administration ("SSA") determined that he was disabled due to oral cancer and an infection following surgery. In 1988 the SSA terminated his benefits. This decision was upheld by an Administrative Law Judge. Hutchinson argues that he remains disabled, that the ALJ erroneously discredited his doctor's opinion, and that the decision was not supported by substantial evidence. We reverse and remand to award benefits.

A person entitled to benefits retains the presumption of continuing disability; the SSA has the burden of proving the claimant's ability to engage in substantial gainful activity. Bellamy v. Secretary of Health and Human Services, 755 F.2d 1380, 1381 (9th Cir. 1985). When disregarding the claimant's physician's opinion, the ALJ must explain with specific and legitimate reasons why the doctor's conclusions are not correct and must show substantial evidence for this decision. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989). In this case, the ALJ's reasons for rejecting the doctor's opinion are insufficient, and his decision is not based on substantial evidence.

First, the ALJ did not give adequate reasons for disregarding the doctor's opinion that a speech impediment, weakness and fatigue prevent Hutchinson from doing his past work. The only reason the ALJ offered was that "the disability opinion by the treating physician appears to be based on a vocational assessment outside the scope of expertise of the physician rather than on medical findings." But the ALJ does not point to evidence showing that the doctor based his decision on non-medical factors, such as lack of education. See Sanchez v. Secretary of Health and Human Services, 812 F.2d 509 (9th Cir. 1987). Nor is there evidence that the doctor misconceived Hutchinson's job duties, as the ALJ claims. Since the ALJ did not provide specific and legitimate reasons for his rejection, the doctor's opinion stands.

Second, even if the ALJ had given adequate reasons for rejecting the opinion, his decision that Hutchinson's speech impediment did not prevent him from engaging in his former work is not supported by substantial evidence.

Hutchinson maintains that it is difficult for people to understand him directly and almost impossible to understand him over the phone. The ALJ decided that Hutchinson's impediment was not a barrier to work because "he is able to speak in a comprehensible way, as he demonstrated at the hearing." But this evidence only proves that Hutchinson can get by in his daily verbal exchanges. There is no evidence that he can function as a salesman convincing customers to buy his product and explaining esoteric technical details. Since the SSA failed to demonstrate that Hutchinson can speak effectively as a salesman, not just as a person, the ALJ's conclusion was not supported by substantial evidence.

Further, the SSA did not adequately consider Hutchinson's age or the length of time he had been receiving disability, as required by 20 C.F.R. Sec. 404.1594(b) (4) (iii) (1990). Hutchinson was 56 and unemployed at least six years when the ALJ rendered his decision. The difficulty of Hutchinson returning to work with these factors against him should have been considered.

The decision to remand a case for further findings or to hold that Hutchinson is disabled and entitled to benefits is within the discretion of the panel. See Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). When the ALJ fails to provide clear and convincing reasons for discounting the treating doctor's opinion, the court can accept the doctor's uncontested conclusions as true and award benefits. Id.; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988).

Here no medical evidence or opinion conflicts with the treating doctor's, and the ALJ's claim that the opinion is a vocational assessment is unsupported. Neither is there substantial evidence that Hutchinson could perform his previous work as a salesman. Therefore, the SSA has failed its burden of proof.

REVERSED AND REMANDED TO AWARD BENEFITS.