Young v. Commissioner Social Security Administration
Filing
23
FINDINGS and RECOMMENDATION - The ALJ's decision is not based upon the appropriate legal standards or substantial evidence. Crediting the improperly omitted testimony establishes that Young is disabled unter Title II of the Act. The ALJ's decision should therefore be reversed and remanded for the immediate calculation and award of benefits. Objections to the Findings and Recommendation are due by 1/4/2010. Signed on 12/21/09 by Magistrate Judge John V. Acosta. (peg)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
DONALD R. YOUNG, Plaintiff, Civil No. 09-0023-AC FINDINGS AND RECOMMENDA T l O N
v.
MICHAEL J. ASTRUE, C o m m i s s i o n e r o f S o c i a l Security Defendant. ACOSTA, Magistrate Judge: Plaintiff Donald Young ("Young") seeks judicial review o f the Social Security Commissioner's final decision denying his application for Disability Insurance Benefits ("DIB") under Title II o f the Social Security Act ("Act"). This 405(g). F o r the reasons below the Commissioner's decision should be REVERSED and REMANDED for the immediate calculation and award o f benefits.
COUlt
has jurisdiction under 42 U.S.C. §
I - FINDINGS AND RECOMMENDATION
BACKGROUND
Born in 1956 (Tr.59 t ) , Young has a post-graduate education. T r . 9 4 . Between 1988 and 2003 Young worked as an elementary school teacher and since August 200 I as an elementary school principal. Tr. 103. Based on the loss o f function o f his right vestibular nerve, Young alleges that he suffers from a disability due to"vertigo associated with disturbance o f labyrinthine-vestibular [nerve] function" and oscillopsia.> T r . 8 2 . Young applied for DIE o n March 18, 2004, alleging disability since December 20, 2003. Tr. 59-61. His application was denied initially and upon reconsideration (Tr. 46-56), and an
Administrative Law Judge ( " A U " ) held a hearing o n March 2 , 2 0 0 5 . Tr. 340-74. O n June 24, 2005 the A U found Young not disabled. Tr. 14-28. Young appealed that decision, and on March 16, 2007, this court remanded the matter to the A U for ful1her proceedings. Tr. 410-30. The ALJ held a second hearing o n April I I , 2008 (Tr. 603-65), and again found Young not disabled o n May 30, 2008. Tr. 389-409. The Appeals Council denied review o f t h e matter, making the A L J ' s decision the final decision o f the Commissioner. Tr. 375-78. Young again appeals.
D I S A B I L I T Y ANALYSIS
T h e Commissioner engages i n a sequential process encompassing between one and five steps i n determining disability under the meaning o f t h e Act. 20 C.F.R. § 404.1520; Bowen v. Yuckert,
Citations " T r . " refer to indicated pages in the official transcript o f the administrative record filed with the Commissioner's Answer March 2 3 , 2 0 0 9 (Docket #7).
t
Oscillopsia is defined as "abnormal jerky eye movements . . . [which] create a subjective sensation that the enviromnent is oscillating." Kenneth N. Anderson et aI, Mosby's Medical, Nursing, & A l l i e d Health D i c t i o n m y (5th ed. 1998).
2
2 - FINDINGS AND RECOMMENDATION
h i s credibility b e t w e e n step 482 U.S. 137, 140 (1987). Young challenges the A L J ' s evaluation o f three and four, a n d her finding t h a t he is not disabled at step five. A t step one, t h e ALJ determines i f the claimant is perfOlming substant
s
i a l g a i n f u l activity. I f
tep t w o , t h e A L J d e t e t m i n e s he is, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i). A t s i f t h e c l a i m a n t h a s " a s e v e r e m e d i c a l l y d e t e r m i n a b l e p h y s i c a l or m e n t a l i m p a i r m e n t " t h a t meets the
a)(4)(ii). I f t h e c l a i m a n t d o e s twelve-month durationrequirement. 20 C.F.R. §§ 404.1509, 404. 1520( n o t have such a severe impairment, h e is n o t disabled. Id. o r equals a " l i s t e d " A t s t e p t h r e e , the A L J d e t e r m i n e s i f t h e s e v e r e i m p a i r m e n t m e e t s e determines the i m p a i r m e n t impairment i n t h e regulations. 20 C.F.R. § 404. 1520(a)(4)(iii). I f h .R. § 4 0 4 . 1 5 2 0 ( d ) . meets o r equals a listed impairment, the claimant is disabled. 20 C.F te medical and other I f a d j u d i c a t i o n p r o c e e d s b e y o n d s t e p t h r e e t h e ALJ m u s t f i r s t e v a l u a r e l e v a n t e v i d e n c e i n assessing the c l a i m a n t ' s residual functional capac ity ( " R F C " ) . T h e c l a i m a n t ' s
till p e r f o r m o n a regular a n d R F C is a n a s s e s s m e n t o f w o r k - r e l a t e d a c t i v i t i e s t h e c l a i m a n t m a y s C.F .R. § 404.1 520(e); Social c o n t i n u i n g basis, d e s p i t e l i m i t a t i o n s i m p o s e d b y h i s i m p a i r m e n t s . 2 0 etermine i f the claimant can S e c u r i t y R u l i n g ( " S S R " ) 9 6 - 8 p . T h e ALJ u s e s t h i s i n f o r m a t i o n t o d (4)(iv). perform his p a s t relevant w o r k at step four. 20 C.F.R. § 404. 1520(a) e c l a i m a n t is c a p a b l e I f p r o c e e d i n g s r e a c h s t e p five, t h e C o m m i s s i o n e r m u s t d e t e r m i n e i f t h . 1520(a)(4)(v), 404.1 520(t); ofperfOlming w o r k existing in the national economy. 20 C.F.R. §§ 404 Cir. 1999). fuckert, 482 U.S. a t 141-2; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th
Tackett, 180 F.3d at T h e i n i t i a l b u r d e n o f e s t a b l i s h i n g d i s a b i l i t y r e s t s u p o n t h e claimant.
h i f t s to 1098. I f t h e p r o c e s s r e a c h e s t h e f i f t h step, t h e b u r d e n o f p r o d u c t i o n s s h o w t h a t " t h e c l a i m a n t c a n p e r f o r m s o m e o t h e r w o r k t h a t e x i s t s i n the n t h e C o m m i s s i o n e r to
a t i o n a l e c o n o m y , t a k i n g into
3 - FINDINGS AND R E C O M M E N D A T I O N
consideration the claimant's residual functional capacity, age, education, and work experience." I d at 1100. I f the Commissioner meets this burden the claimant is not disabled. 20 C.F.R. §§ 4 0 4 . 1 5 6 6 ; 404.1520(g).
T H E A L J ' S FINDINGS
In his May 30, 2008, decision, the ALJ found Young not disabled for the second time. The ALJ made step two findings: The claimant has the following severe impairments: a histOly o f labyrinthitis w i t h v e s t i b u l a r n e u r o n i t i s a n d p o s s i b l e p e r i l y m p h fistulas; sleep apnea; and a history o f depression and anxiety that constituted "severe" impairments through the date o f t h e prior hearing decision, but have not constituted "severe" impairments since that date. Tr. 392. The ALJ found that these impairments did not meet or equal a listed impairment at step three. Tr. 393. The ALJ found Y o u n g ' s symptom testimony "not credible to the extent inconsistent with the assessment o f the residual functional capacity." Tr. 395. The ALJ subsequently found that Young has the residual functional capacity to perform light work, with the following accommodations: [A] need to avoid straining, bending over, rapid head movements, rapid postural changes, and crowds due to the effects o f movement i n his field o f vision; and by his inability to tolerate exposure to loud noises, heights such as ladders o r scaffolds, o r frequent movement not within his control such as that which would be experienced while r i d i n g in t h e b a c k s e a t o f a n a u t o m o b i l e . Tr. 394. At step four the ALJ found that Young could not perform his past relevant work as an elementary school principal. Tr. 407. The ALJ finally found that Young retains the ability to perform other work i n the national economy as a table worker, ticketer, and garment sorter. T r . 4 0 8 . The ALJ therefore found Young not disabled. T r . 4 0 9 .
4 - FINDINGS AND R E C O M M E N D A T I O N
STANDARD O F R E V I E W
The reviewing c o u r t m u s t affirm the C o n u n i s s i o n e r ' s d e c i s i o n i f the Commissioner a p p l i e d p r o p e r l e g a l s t a n d a r d s a n d t h e f i n d i n g s a r e suppOlied b y s u b s t a n t i a l e v i d e n c e i n t h e r e c o r d . 4 2 U . S . C .
§ 405(g); Batson v. Comm'r o f the Soc. Sec. Admin., 359 F . 3 d 1190, 1193 (9th Cir. 2004).
"Substantial evidence" m e a n s " m o r e t h a n a m e r e scintilla, b u t less t h a n a preponderance." Bray v.
Comm'r o fthe Soc. Sec. Admin, 554 F . 3 d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala,
53 F.3d 1035, 1039 ( 9 t h Cir. 1995). I t is " s u c h relevant evidence a s a reasonable m i n d might accept as adequate to s u p p o r t a conclusion." Id. T h e reviewing cOUli may n o t substitute its j u d g m e n t for that o f the Commissioner. Robbins v. Soc. Sec. Admin, 4 6 6 F . 3 d 880, 882 (9th Cir. 2005); Edlund v. Massinari, 253 F . 3 d 1152, 1156 (9th Cir. 2001). Thus, w h e r e t h e evidence is susceptible to m o r e t h a n o n e rational interpretation, the A L J ' s c o n c l u s i o n m u s t be u p h e l d , e v e n w h e r e t h e e v i d e n c e c a n s u p p o r t e i t h e r a f f i r m i n g o r r e v e r s i n g the A L J ' s conclusion. Burch v. Barnhart, 4 0 0 F.3d 676, 679 (9th Cir. 2005). T h e A L J is r e s p o n s i b l e for d e t e r m i n i n g c r e d i b i l i t y , r e s o l v i n g c o n f l i c t s i n m e d i c a l t e s t i m o n y , a n d r e s o l v i n g ambiguities. Andrews, 53 F.3d at 1039. I n d e t e r m i n i n g a c l a i m a n t ' s RFC, a n A L J m u s t c o n s i d e r all r e l e v a n t e v i d e n c e i n t h e r e c o r d , including, inter alia, medical records, lay evidence, and " t h e effects o f symptoms, including pain, that are reasonably attributed t o a medically determinable impairment." Robbins, 466 F . 3 d a t 883,
citing S S R 96-8p at *5 (available a t 1996 W L 374184); 20 C.F.R. § 404.1545(a)(3); Smolen v. Chatel', 80 F . 3 d 1273, 1281 (9th Cir.1996). However, the reviewing court m u s t consider t h e entire
r e c o r d a s a w h o l e , w e i g h i n g b o t h t h e e v i d e n c e t h a t s u p p o r t s a n d d e t r a c t s from the C o m m i s s i o n e r ' s conclusion, a n d m a y n o t affirm s i m p l y by isolating a specific q u a n t u m o f s u p p o r t i n g evidence.
5 - FINDINGS A N D R E C O M M E N D A T I O N
Lingenfelter v. Astrue, 504 F . 3 d 1028, 1035 (9th Cir. 2007).
DISCUSSION
Y o u n g c h a l l e n g e s o n l y the A L l ' s credibility f i n d i n g s . T h i s c o u r t ' s r e v i e w t h e r e f o r e i s l i m i t e d to t h e A L J ' s credibility findings and the manner in w h i c h these findings comply w i t h this c o m t ' s M a r c h 1 6 , 2 0 0 7 , r e m a n d Order.
I.
Remand Order
Y o u n g c o n t e n d s t h a t t h e A L J f a i l e d to c o m p l y w i t h t h i s c o u r t ' s M a r c h , 2 0 0 7 , r e m a n d Order.
M a g i s t r a t e J u d g e S t e w a r t o r d e r e d the A L J t o r e a s s e s s Y o u n g ' s t e s t i m o n y , s t a t i n g t h a t , " i n p a r t i c u l a r , t h e A L J s h o u l d e s t a b l i s h h o w l o n g Y o u n g can r e a d o r w o r k b e f o r e r e q u i r i n g a b r e a k a n d f o r h o w l o n g h e needs a b r e a k . " T r . 4 2 9 . T h e reviewing COUlt's remand order may include " d e t a i l e d instructions concerning the scope o f the remand, the evidence to be adduced, and the legal o r factual issues to b e addressed." Sullivan
v. Hudson, 4 9 0 U.S. 877, 885 (1989). Deviation from s u c h a n o r d e r is legal en'or w h i c h m a y warrant
reversal. ld. at 885-886. The A L J made no findings regarding Y o u n g ' s ability to read. The ALJ therefore failed to address this COUlt's specific instruction. R e g a r d i n g Y o u n g ' s w o r k p l a c e b r e a k s , t h e A L J n o t e d Y o u n g ' s t e s t i m o n y t h a t he r e q u i r e s a b r e a k a f t e r f i f t e e n m i n u t e s o f l i g h t activity, b u t found t h i s a s s e r t i o n u n s u p p o r t e d b y t h e m e d i c a l evidence. Tr. 405-406. T h i s analysis is erroneous, for reasons explained fully below. T h e A L J t h e r e f o r e failed t o c o m p l y w i t h t h i s c o u r t ' s r e m a n d i n s t r u c t i o n s . S u c h d e v i a t i o n m a y warrant reversal. Sullivan, 490 U.S. at 885-86. T h e effects o f this deviation are discussed fully, below.
6 - FINDINGS AND R E C O M M E N D A T I O N
\
II. Y o u n g ' s Credibility
The A U found Young " n o t credible to the extent inconsistent" with his RFC. Tr. 395. The A U rejected Y o u n g ' s testimony that he must rest after more than fifteen or twenty minutes o f activity, f i n d i n g t h i s a s s e r t i o n u n s u p p o r t e d by " c o m m e n s u r a t e o b j e c t i v e m e d i c a l findings, c o n s i s t e n t subjective reports o f a similar degree o f symptomology to all contemporaneous treating medical p r o v i d e r s , o r e v i d e n c e o f c l i n i c a l l y j u s t i f i a b l e functional l i m i t a t i o n s t h a t c o u l d b e c o n s i d e r e d attributable to a medically detetminable impaitment." Tr. 406. A.
Standards: Credibility
The A U performs a two-step analysis in his credibility finding. First, the A U determines i f the claimant has shown a n underlying impairment which may "reasonably be expected to produce pain or other symptoms alleged." Lingenfelter, 504 F.3d at 1036 (citing Smolen, 80 F.3d at 1273). I f the claimant establishes such a n impairment, and there i s no finding o f malingering, the A U proceeds to the second step, where he must provide "clear and convincing" reasons for finding a claimant n o t credible. Id. The A U evaluates a claimant's excess fatigue testimony under the same standards that he evaluates excess pain testimony. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). The A L l ' s credibility findings must be "sufficiently specific to permit the reviewing c o n t i to conclude that the A U did n o t arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). The A U may consider objective medical evidence and the claimant's treatment histOly, as well as the c l a i m a n t ' s daily activities, work record, and observations o f physicians and third parties w i t h personal knowledge o f the c l a i m a n t ' s functional limitations. Smolen, 80 F.3d a t 1284.
7 - FINDINGS AND R E C O M M E N D A T I O N
The A U may additionally employ ordinaty techniques o f credibility evaluation, such as weighing inconsistent statements regarding symptoms by the claimant. Id. Once a claimant shows an underlying impairment, the A U may not, however, make a negative credibility finding "solely because" the claimant's symptom testimony "is not substantiated affirmatively by objective medical evidence." Robbins, 466 F.3d at 883. B. Analysis a. C r e d i b i l i t y a n d R F C Assessment
The court first notes that the A U ' s analysis reverses the manner in which he must consider credibility. The A U must consider a claimant's credibility in the course o f assessing a claimant's residual functional capacity. 20 C.F.R. § 404.I545(a)(3); SSR 96-8p at *7 (available at 1996 WL 374184). Here, the A U first found that Young's credibility was limited "to the extent" his statements "are inconsistent with the residual functional capacity assessment . . . . " Tr. 395. No authority suggests an A U may reason that a claimant is not credible based upon the claimant's RFC assessment. The A U ' s finding that Young is not credible based upon his RFC disregards the role o f credibility analysis in determining an RFC and therefore should not be sustained. b. Y o u n g ' s M e d i c a l Recol'd a n d C r e d i b i l i t y
The A U ' s credibility analysis cited Y o u n g ' s medical record (Tr. 396), which the A L l discussed in considerable detail. Tr. 396-407. The A L l found Young's symptom testimony unsupported by "objective medical findings o f abnormality that could reasonably be expected to result in such significant limitation." Tr. 396. i. S t a n d a r d : Medical Records a n d Credibility
Once a claimant establishes an impairment that could reasonably cause the reported
8 - FINDINGS AND RECOMMENDATION
symptoms, the ALJ may not require that medical evidence corroborates the degree o f symptom testimony the claimant proffers. Lingenfelter, 504 F.3d at 1036 (citing Smolen, 80 F.3d at 1282)). However, the ALJ may consider a claimant's medical record i n conjunction with other credibility factors. Smolen, 80 F.3d at 1284. Here, the ALJ may rely upon physician observations. I d at 1282.
ii.
C a u s a l L i n k B e t w e e n I m p a i r m e n t and Symptoms
The ALJ found no "evidence o f clinically justifiable functional limitations that could be considered attributable to a medically determinable impairment." Tr. 406. T h e ALJ did not immediately explain the reason for this finding. The A L J ' s finding appears to be based upon his p r e c e d i n g discussion o f Y o u n g ' s t r e a t i n g and e x a m i n i n g m e d i c a l providers. The Commissioner asserts that Young must show by objective evidence that he experienced fatigue. D e f . ' s Br. 8-11. The Commissioner, citing evidence the ALJ did not rely upon, infers that Young's fatigue is a "secondary symptom" and that Young inconsistently reported fatigue to his physicians. D e f . ' s Br. 9. The reviewing court may not n o w rely upon reasoning the ALJ did not assert. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citing SEC v. Chenel)! Corp., 332 U.S. 1 9 4 , 1 9 6 (1947)). Further, the Commissioner misapplies the relevant standard: the claimant must show that his impairment "could reasonably be expected to (not that it did in fact) produce some degree o f symptom." Smolen, 80 F.3d at 1284 (emphasis original). Treating physician Dr. Schleuning, an otolaryngologist, found o n Fune 23, 2004, that Young had loss o f labyrinthine function o f the right ear. T r . 2 4 3 . Dr. Schleuning stated that this caused a feeling oflightheadedness, unsteadiness, and unstable balance. I d Treating physician Dr. Black, who specializes in otology-neurology (Tr. 537), diagnosed "bilateral perilymph fistulas o f uncertain etiology." T r . 5 3 8 . Dr. Black found that Young had difficulty "maintaining stance" in the Romberg
9 - FINDINGS AND RECOMMENDAn O N
positions? Tr. 544. The medical record also shows that treating physician Dr. Reploeg diagnosed sleep apnea o n June 6, 2006. Tr. 522. These diagnoses show that Young could reasonably be expected to experience both dizziness and fatigue. Young therefore meets the first prong o f the two-step credibility analysis. The ALJ may not subsequently require that the medical record suPPOtt the degree o f symptom testimony that Young alleges. Lingenfelter, 504 F J d at 1036; Smolen, 80 F J d at 1284. The Commissioner also asserts that Young's symptom testimony is unsupported by the m e d i c a l r e c o r d b e c a u s e Young d i d n o t " c o n s i s t e n t l y allege t h e s a m e degree o f e x t r e m e l i m i t a t i o n o n a contemporaneous basis to all o f his treating medical providers." D e f . ' s Br. 9. The Commissioner's submission is enclosed in quotations, but the Commissioner fails to identify the source o f his quotations. Id. While consistent symptom reporting may bolster a claimant's credibility, the
Commissioner's Ruling also instructs that "symptoms may vmy in their intensity, persistence, and functional effects, or may worsen o r improve with time . . . . " SSR 96-7p at *5 (available at 1996 WL 374186). In such a setting, symptom-free periods may be consistent with disability. Reddick v.
Chater, 157 F J d 7 1 5 , 7 2 4 (9th Cir. 1998) (citing Lester, 81 F J d at 833). The Commissioner's
submission therefore fails. Finally, the ALJ also found Y o u n g ' s symptom testimony unsupported by the medical record because he did not r e p m t his dizziness and fatigue to physicians treating his prostate cancer. Tr. 40102. In this era o f specialized and managed healthcare, it is unlikely that a treating urologist or
3The Romberg test is an indication o f "loss o f sense o f position" i n which the patient loses balance when standing erect with his eyes closed. Kenneth N. Anderson et a1. eds., Mosby's Medical, Nursing, & A l l i e d Health Dictional)! (5th ed. 1998).
10 - FINDINGS AND RECOMMENDATION
proctologist would identify or address neuro-vestibular symptoms, and there is no evidence in the record indicating that Young asked these specialists to treat him for a condition outside their specialty. For all o f these reasons, the ALJ erroneously found that Y o u n g ' s medical record did not corroborate his symptom testimony. This finding should therefore not be sustained. b. Activities o f Daily L i v i n g
Young challenges the A L l ' s citation to his activities o f daily living. P l . ' s Opening Br. 26 (citing Tr. 396). Young cites the A L J ' s decision, but the indicated page does not discuss Young's activities o f daily living. The Commissioner presently cites the A L l ' s references to Y o u n g ' s reports to his chiropractor and examining psychologist Dr. Boyd. D e f . ' s Br. 16. The Commissioner also cites the A L J ' s discussion o f Y o u n g ' s w i f e ' s testimony. D e f . ' s Br. 17. The ALJ did not make concentrated findings regarding Y o u n g ' s daily activities. As noted by the Commissioner, the ALJ cited Y o u n g ' s report to his chiropractor that he was still dizzy but was " s t a t t i n g exercise-riding b i k e . " Tr. 398. The ALJ also cited Y o u n g ' s report to examining
psychologist Dr. Boyd that he maintained personal care and his finances, arranged transportation, and shopped for groceries, but required a break after performing fifteen minutes o f light work. Tr. 405. T h e C o m m i s s i o n e r n o w a s s e l t s t h a t t h e s e a c t i v i t i e s " c a l l into q u e s t i o n " Y o u n g ' s c r e d i b i l i t y . D e f . ' s Br.17. i. Y o u n g ' s R e p o l ' t s to M e d i c a l S o u r c e s
T h e record shows that Young repOlted to his chiropractor that he was "feeling better" o n March 4 , 2 0 0 4 , and was " n o w starting exercise-riding bike." Tr. 193. However, Young also repOlted that he was "still dizzy and lightheaded." Id. A s the ALJ noted (Tr. 398), the record does not indicate
11 - FINDINGS AND RECOMMENDAn O N
e c o r d is a l s o s i l e n t r e g a r d i n g whether Young was riding a n exercise bike or biking outdoors. The r The A L J m a y n o t c h a s t i s e a h o w long Young rode the exercise bike, and i f he continued using it. c l a i m a n t f o r e n g a g i n g i n l i m i t e d e x e r c i s e c o n s i s t e n t w i t h h i s disability.
Reddick, 157 F.3d at 722-23.
viated, o r t h a t h e engaged i n T h e A L J ' s c i t a t i o n does n o t s h o w t h a t Y o u n g ' s s y m p t o m s w e r e a l l e ld therefore n o t be sustained. a c t i v i t i e s i n c o n s i s t e n t w i t h h i s a l l e g e d disability. T h i s r e a s o n i n g s h o u Dr. Boyd that he has On December 14, 2007, Young repOlted to examining psychologist difficulty c o m p l e t i n g h o u s e h o l d chores, b u t c a n p e r f o r m l i g h t duties s p aced throughout the day. Tr. en minutes. [d. The ALJ
fifte 592. Young also reported that when he does these chores he rests every
m e d i c a l f i n d i n g s " a n d that i t found that this report was not suppOlted by "conmlensurate objective " t h e s a m e degree o f e x t r e m e w a s a l s o c o n t r a d i c t e d by t h e f a c t t h a t h e did n o t c o n s i s t e n t l y a l l e g e oviders." Tr. 405. The COUlt limitation on a contemporaneous basis to all o f his treating medical pr a l r e a d y h a s r e j e c t e d t h e A L J ' s r e q u i r e m e n t to c r e d i b i l i t y t h a t Y o u n g m u s t provide objective medical m p t o m s to
ve reported h i s sy findings suppOlting his symptom testimony, and that Young should ha
re treating him. The A L I ' s all medical providers regardless o f the conditions for w h i c h they we t b a s e d upon t h e appropriate reasoning regarding Y o u n g ' s repOlt o f his activities t o Dr. Boyd is no legal standards and should be rej ected.
ii.
L a y Testimony n g ' s wife s h o w e d t h a t
Finally, the Commissioner asserts a third-party report submitted by Y o u h e w a s n o t f o r t h c o m i n g a b o u t h i s a l l e g e d l i m i t a t i o n s i n h i s d a i l y activ noted Donna Y o u n g ' s description o f her h u s b a n d ' s activities (Tr. 405),
ities. D e f . ' s Br. 17. T h e ALJ b u t made no finding regarding
tead rejected D o n n a Y o u n g ' s t h e e f f e c t o f this d e s c r i p t i o n u p o n Y o u n g ' s credibility. T h e A L J i n s
12 - FINDINGS AND RECOMMENDATION
testimony because she left the house to work each day, and therefore "was n o t i n a position to independently obselve his alleged limitation . . . . " Tr. 406. The ALJ subsequently found Donna Y o u n g ' s testimony "credibly supported by the weight o f the evidence only to the extent consistent with the assessment o f the claimant's residual functional capacity in this decision." Tr. 407. As noted, the Commissioner cannot now cite reasoning which the ALJ did not assert.
Connett, 340 F.3d 874. The ALJ did not find Young not credible based upon information regarding
h i s a c t i v i t i e s o f daily l i v i n g c o n t a i n e d i n D o n n a Y o u n g ' s r e p m i . T h i s s u b m i s s i o n s h o u l d t h e r e f o r e b e rejected. F u r t h e r , t h e A L J ' s r e a s o n i n g r e g a r d i n g D o n n a Y o u n g ' s t e s t i m o n y a g a i n c o n t r a v e n e s t h e role o f testimony in construing a claimant's RFC. The ALJ considers lay testimony, as he does a claimant's testimony, before reaching t h e R F C assessment. 20 C.F.R. § 404. 1545(a)(3); S S R 96-8p at *7 (available at 1996 WL 374184). T h e A L I ' s finding that Donna Young is credible only so far as her testimony is consistent with Y o u n g ' s RFC again reverses the order o f analysis. This finding s h o u l d n o t b e sustained.
c. Alleged SecondaI"y Gain
The ALJ infelTed that Y o u n g ' s benefit application was motivated by secondary gain, finding that "medical records further reflect that the claimant has demonstrated a focus upon obtaining documentation from physicians to support a previously pending PERS claim and his ongoing Social Security disability benefit claim." Tr. 396. T h e ALJ may n o t c h a s t i s e a c l a i m a n t f o r s e e k i n g d i s a b i l i t y b e n e f i t s p a y m e n t s ; s u c h r e a s o n i n g circumvents the very purpose o f disability benefit applications. Ratio v. Chafer, 839 F.Supp. 1415,
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1428-29 (D. Or. 1993). Contrmy to the Commissioner's assertion (Def.'s Br. 15), this standard applies to witnesses involved in preparing evidence prior to the hearing before an A U . Crane v.
Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (citing i d ) . Futthermore, the A U may not reject a
physician's opinion simply because it was solicited to support a benefit application. See Nguyen v.
Chatel', 100 F.3d 1462, 1464 (9th Cir. 1996) ( A U may not reject physician opinion because it was
solicited by claimant's counsel in support o f benefit application). The A L l ' s reasoning that Young is not credible because he sought medical documentation in support o f his disability application is inconsistent with this standard. This finding therefore should n o t b e sustained.
C.
Conclusion: Y o u n g ' s Credibility
I n summary, the A U erroneously c i t e d Y o u n g ' s medical record and m a d e u n s u p p o r t a b l e inferences regarding Y o u n g ' s alleged secondmy gain. The A L l ' s credibility determination therefore should not be sustained. REMAND The decision whether to remand for further proceedings or for immediate payment o f benefits is within the discretion o f the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000.), eert.
denied, 531 U.S. 1038 (2000). The issue turns o n the utility o f f u t t h e r proceedings.
Under the "crediting as true" doctrine, evidence should be credited and an immediate award o f benefits directed where: " ( 1 ) the A U has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination o f disability can be made, and (3) it is clear from the record that the A U would be required to find the
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claimant disabled were such evidence credited." Harman, 211 F.3d at 1178 (quoting Smolen, 80 F.3d at 1292). In such circumstances the reviewing c o m t must credit the improperly rejected evidence.
Vasquezv. Astrue, 547 F.3d 1101,1106-07 (9th Cir. 2008) (en banc review denied, 572 F.3d 586 (9th
Cir. 2009)). I t is axiomatic, however, that the reviewing court may not credit testimony and subsequently award benefits contrary to t h e Act. See Vasquez, 572 F.3d at 589 (O'Scannlain J., dissenting) . The A U failed to provide legally sufficient reasons for rejecting Young's testimony. Young testified at his April 11, 2008, hearing that his fatigue has been "unchanged" (Tr. 611), and that he has difficulty with balance (Tr. 611-12, 622), concentration (Tr. 613-14), and memOlY. Tr. 614. Young also testified that he experiences lightheadedness (Tr. 608, 610, 622, 617), that must concentrate on where he steps when walking (Tr. 620), and that he still has "shaky vision" when his head moves from side to side. Tr. 617. Young also described numerous postural limitations prescribed by his treating physician, Dr. Black. Tr.612. Finally, Young testified that h e requires rest i n the midmorning and midaftemoon. Tr. 624. I n such circumstances, the improperly rejected
evidence should be credited. Hammock v. Bowen, 879 F.2d 498, 503-04 (9th Cir. 1989) (crediting a s t r u e e r r o n e o u s l y r e j e c t e d c l a i m a n t t e s t i m o n y and p h y s i c i a n o p i n i o n s where t r e a t i n g p h y s i c i a n s ' s opinions supported claimant' s testimony). The court therefore credits this evidence and now d i s c u s s e s t h e effect o f th e credited t e s t i m o n y and m e d i c a l o p i n i o n s u n d e r t h e s e c o n d a n d t h i r d p r o n g s o f the Harman analysis. In determining whether to award benefits or remand the matter for further proceedings the c o m t m u s t d e t e r m i n e w h e t h e r " o u t s t a n d i n g i s s u e s r e m a i n i n the r e c o r d " u n d e r t h e s e c o n d H a r m a n
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prong. Harman, 211 F.3d at 1178. Two hearings have been conducted before an A L I , resulting i n two decisions by an A L I , and a remand Order from this court. The court finds this record sufficiently developed. T h e r e f o r e the
COUtt
m u s t finally d e t e r m i n e w h e t h e r t h e r e c o r d c l e a r l y r e q u i r e s a w a r d o f
benefits after the improperly rejected evidence is credited. Harman, 211 F.3d at 1178. The vocational expert testified that a claimant precluded from cal1ying items obstructing his vision, limited to occasional reading, unable to maintain consistent, prolonged concentration, and requiring rest in the midmorning and midafternoon would be precluded from performing work in the national economy. Tr. 661. This testimony establishes that Young cannot perform work in the national economy at step five in the sequential proceedings. Consequently, Young is disabled under the C o m m i s s i o n e r ' s regulations.
CONCLUSION AND RECOMMENDATION
The A L I ' s decision is n o t based upon the appropriate legal standards or substantial evidence. Crediting the improperly omitted testimony establishes that Young is disabled under Title II o f the Act. The A L I ' s decision should therefore be reversed and remanded for the immediate calculation and award o f benefits.
SCHEDULING O R D E R
The Findings and Recommendation will be referred to a district judge. Objections, i f any, are due January 4, 2009. I f n o objections are filed, then the Findings and Recommendation will go under advisement o n that date. I f objections are filed, then a response is due within 10 days after being served with a copy
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of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. IT IS SO ORDERED. Dated this 21 s t day o f December, 2009.
OHNV.ACOS A Unite States Magistrate Judge
,
J
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