Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)
Annotate this CaseJohnie JOHNSON, Plaintiff-Appellant,v.Louis SULLIVAN,** Secretary of Health andHuman Services, Defendant-Appellee.
No. 88-2964.
United States Court of Appeals, Ninth Circuit.
Submitted* May 9, 1989.Decided July 26, 1989.
Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Chief District Judge, Presiding.
Before JAMES R. BROWNING, CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges.
MEMORANDUM***
Johnie Johnson applied for disability benefits and supplemental income, asserting a number of ailments. The Secretary denied Johnson's application and the district court affirmed. We find the denial as to Johnson's mental and musculoskeletal impairments to be inconsistent with the medical evidence, and therefore reverse as to those impairments and remand.1
Dr. French reported that Johnson's behavior would be perceived as "extremely deviant" and "crazy," and noted "marked interpersonal isolation," which "predicts serious difficulty in function." The doctor reported that Johnson's record "indicates an extremely passive orientation, ... to such an extent that little is likely to be actually carried out and implemented." Dr. French's tests revealed a " [c]apacity to concentrate and solve simple cognitive tasks ... [at] a level of function little above self-care."2
Dr. French concluded:
[E]ven allowing for the distinct possibility of exaggeration, it is clear that there is a substantial element of disability here. At best, he could handle a highly structured repetitive job which does not require problem-solving or interpersonal effectiveness.
The ALJ erroneously disregarded this uncontroverted evidence3 without setting forth "clear and convincing specific reasons for doing so." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986) (per curiam). The ALJ's conclusions that Johnson suffered only "slight" functional restrictions due to his personality disorder and "seldom" suffered deficiencies of concentration resulting in failure to complete tasks in a timely manner are therefore not supported by substantial evidence. See Gallant v. Heckler, 753 F.2d 1450, 1453-54 (9th Cir. 1984).
If, as Dr. French found, Johnson's impairment is "marked," his condition would be "incompatible with the ability to perform the work-related function." 20 C.F.R. Sec. 404.1520a(b) (3). Accordingly, if on remand the Secretary finds no specific reasons for discrediting Dr. French's conclusions, whether or not Johnson's condition precludes him from performing his past work would "not [be] determinative. If [Johnson] suffers from the impairment listed in [Appendix 1], and the impairment meets the 12 months duration requirement specified by statute, he must be found disabled without consideration of his age, education, and work experience." Fanning v. Bowen, 827 F.2d 631, 634 (9th Cir. 1987) (citations omitted).
The ALJ determined that Johnson's past relevant work as a paper bag maker fell into the category of "medium work" and concluded that Johnson retained the residual capacity to perform such work despite his musculoskeletal impairments. This finding is not supported by the medical evidence.
Medium work requires "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. Sec. 404.1567(c) (emphasis added); see Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). However, Dr. Brown reported that Johnson "can lift 25 pounds a few times, but he couldn't do this over a prolonged period." The ALJ's failure to explain why he disregarded this evidence was error. Cotton, 799 F.2d at 1408.4
This error would be harmless if, as the ALJ found, Johnson could perform less demanding work available in the national economy, thus meeting the Secretary's burden of establishing lack of disability irrespective of Johnson's inability to perform his past work. See Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). To be capable of light work, Johnson had to retain the ability to perform the full range of the activities listed in 20 C.F.R. Sec. 404.1567(b), which includes "a good deal of walking or standing" or "sitting most of the time."
Dr. Brown reported that Johnson "can't sit for more than two-to-three hours. Can't stand in one place shifting around a bit for more than two-to-three hours." This report is inconsistent with a residual capacity to perform light work. As we explained in Gallant, "the full range of light work requires standing or walking for up to two-thirds of the workday." 753 F.2d at 1454 n. 1 (emphasis added); cf. Desrosiers v. Secretary, 846 F.2d 573, 579 (9th Cir. 1988) (Pregerson, J., concurring) (inability to perform "sustained physical activity" precludes light work); Delgado v. Heckler, 722 F.2d 570, 573 (9th Cir. 1983) (claimant "could not sit, stand or walk for even half of a normal work day").
The ALJ erroneously gave no reason for ignoring Dr. Brown's evidence. Accordingly, the vocational expert's testimony, which was based upon the ALJ's finding that Johnson could perform light work, cannot be considered, Gamer v. Secretary, 815 F.2d 1275, 1279 (9th Cir. 1987), and the ALJ's finding of no disability is left without support.5
We remand to the district court with instructions that it remand to the Secretary to determine with specificity whether Johnson's mental and musculoskeletal impairments, individually or in combination, are disabling. See Hammock v. Bowen, 867 F.2d 1209, 1215 (9th Cir. 1989). Because Johnson has attained "advanced age" since the ALJ's decision, the district court is to instruct the Secretary to consider whether Johnson's "advanced age" increases the severity of his impairments, pursuant to 20 C.F.R. Sec. 404.1563(d) & Subpt. P, App. 2, Table 2, see Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988), and to hold the hearing within 90 days. See Hammock, 867 F.2d at 1215.
Johnson's request for attorney's fees is denied. See Hammock, 867 F.2d at 1216.
AFFIRMED in part, REVERSED in part and REMANDED. Each party to bear its own costs.
The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)
Pursuant to Fed. R. App. P. 43(c) (1), Louis Sullivan has been substituted for the original defendant, Otis R. Bowen
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
We affirm as to claims unrelated to Johnson's mental disorder and back impairment. Substantial evidence supported the ALJ's determination that these other impairments were not disabling. Johnson's own testimony in support of these claims was inconsistent, contradicted by the evidence and thus properly discounted
Dr. French also noted that Johnson's score in this respect was "high enough to raise a question about intentional exaggeration on his part." Still, Dr. French found that Johnson "apparently cannot handle even the simplest cognitive tasks without difficulty. If correct, he is reporting a truly severely disabled state. The problem is that this picture is also indicative of exaggeration; the two possibilities are not mutually exclusive."
Dr. Katz conducted an intelligence scale exam, but such an examination is generally relevant to a claim of retardation. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 12.00(D). Dr. French conducted a Rorschach exam and a Minnesota personality test, both of which gauge alleged personality disorders. Id
Uncontroverted medical evidence from an examining physician other than claimant's treating physician, such as Dr. Brown, cannot be disregarded by the ALJ unless he gives clear and convincing, specific reasons for doing so. Cotton, 799 F.2d at 1408; Gallant, 753 F.2d at 1454. Dr. Brown's report is uncontroverted in this regard. Dr. Lucky, Johnson's treating physician in 1983, stated that he "did not interrogate [Johnson] as to ... what his abilities were." Neither did a 1984 orthopedic evaluation address Johnson's ability to lift or to perform certain types of work, although it did note that Johnson reported his pain was worse when he sits in a straight chair or walks up and down stairs. Consistent with a 1986 examination, the 1984 evaluation also reported degeneration of the spine
It may be that the ALJ equated Dr. Brown's conclusion that Johnson suffered " [m]ild to moderate functional impairment" with a residual ability to perform light to medium work. But as the vocational expert testified, Dr. Brown's finding was vague and "useless." The ALJ thus had a duty to further develop the record to assure that Johnson was not erroneously denied benefits. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (per curiam)
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