Unpublished Disposition, 878 F.2d 385 (9th Cir. 1986)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1986)

rgaret A. DEAN, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 87-4145.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1989.Decided June 20, 1989.

Before SCHROEDER, POOLE and NELSON, Circuit Judges.


MEMORANDUM* 

Margaret Dean appeals the Secretary's denial of social security disability benefits, which was based on a finding that she was not disabled on or before the last day for which she was covered for social security benefits (i.e., June 30, 1984). An ALJ denied Mrs. Dean's claim for benefits, and the district court found the ALJ's decision to be based upon substantial evidence. We reverse and direct entry of an order conferring benefits on Mrs. Dean.

BACKGROUND

Mrs. Dean claims disability from a combination of impairments including diabetes mellitus with peripheral neuropathy, chronic obstructive pulmonary disease, generalized muscle weakness of unknown etiology, congestive heart failure, osteoarthritis, and decreased visual acuity. She worked as a respiratory therapist until her physical health deteriorated to the point that she could no longer perform the job. After being forced to resign because of failing health, Mrs. Dean worked for her husband's business as a bookkeeper until August 1983. She ceased her employment there after that date because of dizzy spells and inability to concentrate.

Mrs. Dean's condition worsened with weakness, dizziness, back and leg pain, until she was hospitalized in November 1983. Lab work during her hospitalization revealed minimal spine degeneration and a three centimeter soft tissue lesion of questionable clinical significance. Nerve conduction studies showed a likelihood of polyneuropathy, but of minor severity. Her main physical limitation during this time was her inability to walk more than 25-50 feet without assistance. The discharge summary suggested that the peripheral neuropathy was probably caused by her diabetes.

Shortly after being discharged, Mrs. Dean contracted pneumonia and was rehospitalized in January 1984. In addition to pneumonia, her diabetes was out of control at that time, she had contracted a urinary tract infection, and she suffered from ongoing chronic obstructive pulmonary disease and stable angina. After discharge, her lung continued to have right upper lobe infiltrates, as verified by X-rays, at least until March 29, 1984. During April 1984, she began to experience blurred vision, sensitivity to light, and spots in her visual field. Shortly thereafter, she began experiencing increased chest pains. Since 1984, she has had stress incontinence, requiring that she wear diapers.

Mrs. Dean's social security coverage expired on June 30, 1984. She testified at her hearing that before her coverage expired and as early as autumn of 1983, she had been unsteady on her feet and had spent most of her time in bed. She testified that she could not care for herself because she was bedridden. She could not take a bath, and her extreme weakness made it difficult for her to walk. Her family members had to assist in caring for her personal needs, and they did the majority of the housekeeping and cooking. She further testified to significant difficulty in sitting for long periods and in standing. Her daughter testified at the hearing that during Christmas of 1983 Mrs. Dean could not negotiate the one step into her living room, or even turn on a faucet. At that point, the daughter testified, Mrs. Dean was weak and disoriented, needed help bathing, and spent most of her time in bed.

On August 17, 1984, Mrs. Dean underwent a treadmill test with a thallium scan. The test showed premature heart contractions, although the treadmill had to be stopped before the full test could be run because of leg fatigue and moderate dyspnea. She did not complain of chest pain or pressure at that time, but she did have poor functional capacity. The thallium scintigraphy suggested infarct and/or intense ischemia in some sections of her heart. On October 2, 1984, her treating physician, Dr. Scott, noted increased symptoms of weakness with ataxia, probably secondary to her diabetes.

On November 7, 1984, Mrs. Dean was rehospitalized for treatment of chest pain and dyspnea. X-rays showed definite evidence of an enlarged heart, with a clinical assessment of severe left heart failure. The discharge diagnosis was acute exacerbation of congestive heart failure with angina, chronic obstructive pulmonary disease, and diabetes.

On December 3, 1984, Mrs. Dean reported increased shortness of breath, a productive cough, fullness in her chest, and a low-grade fever; she was diagnosed as probably having bronchitis. In January 1985, she reported increased hand weakness, and nerve conduction studies showed abnormally delayed total conduction velocity in certain nerves. On June 20, 1985, she consulted with Dr. Sepuya, who noted that she was in moderate distress at rest. He diagnosed central cyanosis without jaundice, bilateral basilar rales with faint rhonchi, Class I pulmonary obstruction, and irreversible airway disease.

In a letter of September 25, 1985, Dr. Scott, who had been treating Mrs. Dean for several years, stated that she was at that time totally and permanently disabled from all the conditions described above.

The ALJ found Mrs. Dean's principal medically determinable impairments existing on or before the expiration date of her social security coverage to be mild chronic obstructive pulmonary disease, diabetes mellitus, and generalized muscle weakness with etiology unknown. The ALJ found the medically determinable impairments to be of insufficient severity to qualify Mrs. Dean as disabled under the impairment listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that incapacity or inability due to pain from medically determinable impairments "is not established by the evidence and any testimony to that effect is not given credence." The ALJ gave no reason for discrediting Mrs. Dean's testimony, which was not contradicted. The ALJ concluded that the impairments would not have prevented Mrs. Dean from working as a bookkeeper prior to the time that her insurance coverage expired, and that she was thus not disabled as of that date. The ALJ did not discuss Dr. Scott's letter of September 1985 stating that Mrs. Dean was totally and permanently disabled, and did not explain when, if after rather than before June 30, 1984, appellant became disabled. The ALJ rendered his decision on April 30, 1986. On May 29, 1986, Dr. Scott wrote another letter in which he explained that Mrs. Dean had been totally disabled as early as the latter part of 1983.1 

DISCUSSION

We review an ALJ's denial of disability benefits to determine if the findings are supported by substantial evidence and the Secretary applied the correct legal standards. Davis v. Heckler, 868 F.2d 323, 325 (9th Cir. 1989). The claimant has the burden of proving disability within the meaning of the Social Security Act. Id. at 326. The claimant establishes a prima facie case of disability if she can show that her impairment prevented her from performing her previous occupation. Id. Once a prima facie case is established, the burden shifts to the Secretary to show that the claimant can perform other suitable work. See id. If we find the Secretary has failed to carry his burden, the decision whether to remand the case for additional evidence or simply to direct an award of benefits is within our discretion. Id. at 328.

The Secretary produced no evidence showing that claimant could return to her previous work and was not disabled as of the expiration date of her coverage. The ALJ apparently concluded that there had been a failure of proof by Mrs. Dean that she was unable to return to her previous work as of that date. There is no question, however, that if the testimony of Mrs. Dean and her daughter is true, then in light of the supporting medical evidence, it follows that she could not at that time have returned to her earlier work. The ALJ was able to reach the conclusion he did only by discrediting the lay testimony. He gave no explanation why he did so. In view of the letter before him from Dr. Scott, Mrs. Dean's treating physician, and the other medical evidence, it is difficult for us to imagine valid reasons for his discrediting the testimony in the record. Our conclusion is reinforced by Dr. Scott's later letter directly stating that Dean was totally disabled before her coverage expired.

We recently considered a similar situation where an ALJ discredited subjective testimony by the claimant without discussing the reasons for doing so. In Varney v. Secretary of HHS, 859 F.2d 1396, 1401 (9th Cir. 1988), we held that where no outstanding issues remain to be resolved and benefits must be awarded if a claimant's excess pain testimony is credited, we would accept the claimant's testimony as true and remand for the award of benefits. This is such a case. Here, the ALJ rejected not only Mrs. Dean's uncontroverted testimony, but also the uncontroverted testimony of her daughter. The ALJ also chose to ignore Dr. Scott's first letter, which presents at least a strong inference that plaintiff was totally disabled before her coverage expired. Dr. Scott's medical opinion was uncontroverted. A treating physician's uncontroverted opinion that a claimant is disabled is sufficient by itself to satisfy claimant's burden of showing inability to return to former employment, unless clear and convincing contradictory evidence is presented. Davis, 868 F.2d at 328.

Taking the claimant's testimony as true and giving the treating physician's opinion the consideration it deserves, it becomes clear that the ALJ's findings are not supported by substantial evidence. Mrs. Dean has established by her testimony and by medical evidence that she was unable before her coverage expired to return to her former sedentary employment as a bookkeeper. A remand for findings regarding her testimony is unnecessary. Varney, 859 F.2d at 1401.

The only remaining issue is whether we should remand the case in order to allow the Secretary to attempt to establish that, on June 30, 1984, Mrs. Dean was capable of performing other suitable and available employment. Once a claimant has made out a prima facie case, the decision whether to remand the case for additional evidence or simply to award benefits is within this court's discretion. Davis, 868 F.2d at 328 (citing Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). In view of Mrs. Dean's present condition and the difficulty of attempting to assess her residual functional capacity as of the day her insurance coverage expired, we conclude it is appropriate to reverse and remand for payment of benefits. See id.

The judgment of the district court is REVERSED and the case is REMANDED with instructions to remand to the Secretary for immediate payment of benefits.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

 1

Although the district court opinion states that the ALJ considered this letter, the district court was mistaken. The ALJ's exhibit list and opinion make no reference to the letter, and the letter is dated nearly a month after the date of the ALJ's opinion. The letter was, however, considered by the Appeals Council, which affirmed the ALJ's decision