Unpublished Disposition, 912 F.2d 469 (9th Cir. 1988)

MEMORANDUM^* 

Appellant disability insurance claimant Pauline Mayfield appeals the district court's decision affirming appellee Health and Human Services Secretary's final decision denying her benefits. Mayfield suffers from chronic obstructive and restrictive lung disease, hypertension, and arthritis, but her appeal turns on whether the lung disease disables her. She contends that because the Secretary erred in finding that her previous work as a telephone solicitor was substantial gainful employment, he necessarily erred in finding her able to perform previous relevant work. She also contends that the Secretary erred in discrediting her testimony about her breathing difficulties. She contends that her testimony about her breathing difficulties is supported by the vocational expert testimony and the medical-vocational guidelines, 20 C.F.R. ch. III, pt. 404, subpt. P, app. 2, dictate a finding that she is disabled.

Mayfield initially applied for social security disability insurance benefits November 10, 1983. That application was denied on initial review and she did not appeal. She applied again May 21, 1986, alleging that her disability began April 29, 1983. On November 25, 1987, after a hearing, an Administrative Law Judge found that Mayfield was able to return to her previous work as a telephone solicitor and was therefore not disabled. The Appeals Council's rejection of Mayfield's appeal then became the Secretary's final decision. Mayfield commenced this suit in the United States District Court for the District of Oregon on April 11, 1988. The district court's order affirmed and denied Mayfield's motion to alter or amend. Mayfield timely appealed.

In reviewing the Health and Human Services Secretary's decision to grant or deny benefits, this court reviews de novo whether substantial evidence in the record as a whole supports the Secretary's findings and whether the Secretary applied the correct legal standards. See Desrosiers v. Secretary, 846 F.2d 573, 575-76 (9th Cir. 1988).

III. Was Mayfield's Telephone Solicitor Job Relevant?

Mayfield contends that the ALJ erred in finding that her previous work as a telephone solicitor was relevant. The ALJ did not explicitly consider whether that work was substantial gainful activity. [See Opinion at 6, SR at 12.] Work is not relevant unless it constitutes substantial gainful activity. See 20 C.F.R. Sec. 404.1565(a); Social Security Ruling 82-62, Policy Statement [ (quoted in the Blue Brief Addendum at 1-2) ]. Mayfield's earnings when she was a telephone solicitor imply that that job was not substantial gainful activity. "We will generally consider that the earning from your work as an employee will show that you have not engaged in substantial gainful activity if ... [y]our earnings averaged less than $130 a month in calendar years before 1976." 20 C.F.R. Sec. 404.1574(b) (3).

The Secretary does not dispute that Mayfield wages were less than $130 per month while she worked as a telephone solicitor, but he argues that the ALJ could reasonably infer that her job was full time and therefore she engaged in substantial gainful activity. Because the ALJ appears not to have considered whether the job constituted substantial gainful activity, because the Secretary supports his argument with no legal authority, and because the Secretary's own regulations presume that work compensated less than $130 per month is not substantial gainful activity, we are inclined to agree that the telephone solicitor job did not constitute previous relevant work.

We need not, however, consider what the ALJ might have inferred contrary to the regulations' presumption on an issue he appears not to have considered. Whether or not Mayfield's work as a telephone solicitor constituted substantial gainful activity, the record is clear, as we shall discuss, that she cannot perform it. Moreover, although when the Secretary erroneously finds that a claimant is able to perform previous relevant work, we usually remand to allow the Secretary to show that the claimant is unable to perform other work in the national economy, because we also conclude that remand would only serve to delay an award of benefits, we remand here only for an award of benefits. See Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989); Varney v. Secretary of Health and Human Serv., 859 F.2d 1396, 1401 ("Varney II "), aff'g on rehearing 846 F.2d 581, 583 (9th Cir. 1988) ("Varney I ").

Mayfield contends that the ALJ erred in discrediting her testimony about her breathing difficulties. The Secretary responds that the ALJ adequately considered the testimony.¹  But the Secretary was not only obligated to consider Mayfield's testimony about her excess symptoms. "The Secretary's reasons for rejecting excess symptom testimony must be clear and convincing if medical evidence establishes an objective basis for some degree of the symptom and no evidence affirmatively suggests that the claimant was malingering." Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989) (citing Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984)); see Varney I, 846 F.2d at 583.

Neither the Secretary nor the record suggests that Mayfield was malingering. Moreover, the record establishes, and the Secretary does not dispute, that Mayfield's symptoms have an objective basis. Mayfield's physician and her lung function tests repeatedly report her lung disease as severe. [See Exh. AC-1 at 2, Secretary's Administrative Record [SR] at 206 (April 15, 1986) ("Severe restrictive and obstructive pul. insuff."); Exh. 19, SR at 148 (July 1, 1986) (treating physician's letter) ("severe restrictive and obstructive ventilatory insufficiency"); Exh. 31 at 1, SR at 198 (September 29, 1987) (treating physician's letter) ("severe restrictive and obstructive pulmonary insufficiency").]

Moreover, Mayfield's pulmonary function tests and an arterial blood gas test came close to meeting, and intermittently met, the listing for restrictive lung disease, for obstructive lung disease, and for impaired pulmonary gas exchange.²  Finally, Mayfield's condition at the time of the hearing, which was more than a year after the last test, was much worse than when the tests were administered. When the tests were administered she did not require supplemental oxygen. At the time of the hearing, she required it ten hours a day. [See Tr. at 6-7, SR at 36-37.]

We therefore conclude easily that the Secretary erroneously discredited Mayfield's testimony.³  We accept erroneously discredited testimony as true when the record clearly indicates that that testimony implies disability. See Swenson, 876 F.2d at 689; Varney II, 859 F.2d at 1401. Here the record, especially with the testimony, clearly shows that Mayfield is disabled.

V. Mayfield's Disability Under the Medical-Vocational Guidelines

The Secretary's own vocational expert testified that if Mayfield's testimony regarding her breathing difficulties is credited, she could not perform her previous work as a telephone solicitor, or indeed any sedentary work for which she had the skills. [See Tr. at 31-32; Rec. at 61-62.] No evidence opposes this testimony. Nor is it disputed that at least since her claimed onset date, Mayfield lacked the exertional capacity for more than sedentary work. We conclude, therefore, that Mayfield has had no transferable skills and has been incapable of more than sedentary work.

If the record establishes a claimant's exertional capacity, age, education, work experience, and skills, and if the medical-vocational guidelines thereby indicate that a claimant is disabled, the Secretary must find the claimant disabled and we will direct the Secretary to make that finding. See Valencia v. Heckler, 751 F.2d 1082, 1089 (9th Cir. 1986). The vocational expert testified that none of Mayfield's past relevant work provided her with skill transferable to sedentary work. [See Tr. at 31, SR at 61.] Because Mayfield had no transferable skills and was "closely approaching advanced age" or of "advanced age," 20 C.F.R. ch. III, pt. 404, subpt. P, app. 2, Secs. 201.00(d), (g), she met medical vocational guidelines. See 20 C.F.R. ch. III, pt. 404, subpt. P, app. 2, Secs. 202.02, .10. Mayfield became disabled on April 29, 1983, her claimed onset date. See Swenson, 876 F.2d at 689.

The decision of the district court is therefore REVERSED. The case is REMANDED to the district court with directions to remand to the Secretary to award benefits in accord with our finding that Mayfield has been disabled since April 29, 1983.