Unpublished Disposition, 930 F.2d 26 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 26 (9th Cir. 1989)

Richard CALDERA, Plaintiff-Appellant,v.Louis W. SULLIVAN, M.D., Secretary of Health and HumanServices, Defendant-Appellee.

No. 89-16309.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 13, 1991.Decided March 21, 1991.

Before SCHROEDER, CANBY and NOONAN, Circuit Judges.


MEMORANDUM* 

FACTUAL BACKGROUND

Richard Caldera is a 61 year old high school graduate with some junior college credit. Although he has worked at several jobs, for more than a decade Caldera has been a Trager mind-body therapist.

In December of 1986, Caldera became depressed and was unable to continue work. The only medical testimony in this case comes from his treating physician, Ernest Pecci, M.D., a psychiatrist. In 1987 Dr. Pecci stated he first saw Caldera in 1986 for depression. Dr. Pecci described Caldera as being obsessed with physical dysfunctions, paranoid, and fearful. Dr. Pecci also stated that Caldera had "major depressive episodes with psychotic features," some "psychotic somatic delusions" with no relative triggering event, "extremely poor concentration," and an inability "to cope with even minimal stress." Dr. Pecci indicated that Caldera could take care of "his own basic needs" and had good orientation and good past memory. Dr. Pecci said Caldera's prognosis was "probably good for the long term."

In a letter dated June 6, 1988, Dr. Pecci stated that he had seen Caldera "since the Fall of 1983 for a chronic depressive illness associated with significant somatic symptomatology," and that appellant had been "in some form of psychotherapy since 1973." In the same letter Dr. Pecci stated that appellant had been beaten as a child by his mother, that his marriage ended in divorce due to his wide mood swings, and that he had "withdrawn from all social and pleasurable activities." Dr. Pecci indicated that he is treating Caldera with 200 milligrams of norpramin each day and stated that Caldera had bizarre somatic symptomatology, including "hot burning sensations" all over his body and crackling sensations in his head. Apart from this, Dr. Pecci concluded that Caldera showed "no signs of psychosis or of having a major thought disorder." Dr. Pecci described Caldera's sensorium as "relatively clear during the treatment sessions, although [his] attention span is poor and he tends to ramble obsessively about his physical symptoms and his inability to function normally in social or even slightly stressful situations." The Administrative Law Judge (ALJ) in this case explained that Caldera was able to answer questions coherently and articulately in the hearing.

PROCEDURAL BACKGROUND

On November 19, 1987, Caldera applied for disability insurance benefits and supplemental income benefits, claiming his depression had rendered him unable to work since December 4, 1986. His initial application and request for reconsideration were denied. On June 7, 1988, an ALJ heard Caldera's case; on July 27, 1988, the ALJ denied Caldera's application, finding he suffered from depression, but also finding his impairments did not "prevent [him] from performing his past relevant work." On November 8, 1988, the Appeals Council made the ALJ's ruling the Secretary's final decision by denying Caldera's request for review.

On December 9, 1988, Caldera requested review in federal district court. On September 6, 1989, the district court granted the Secretary's motion for summary judgment and dismissed the case, finding appellant failed to show an inability to perform past relevant work. The court also found that the ALJ's decision was supported by substantial evidence, and that the ALJ stated clear and convincing reasons for his decision where it contradicted the statements of Caldera's treating physician. Caldera filed a timely appeal; this court has jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.

DISCUSSION

Caldera contends on appeal that the district court applied the wrong legal standard and erred in concluding his illness was not a disability as described in the Social Security Regulations. Caldera's counsel also seeks attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.

We review de novo the district court's grant of a summary judgment, Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985), but we affirm a denial of disability benefits if "the Secretary's findings are supported by substantial evidence and the Secretary applied the correct legal standards." Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987) (citation omitted); Villa v. Heckler, 797 F.2d 794, 796 (9th Cir. 1986). At the same time, we must ensure that the ALJ gave the opinion of the treating physician substantial weight, see Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983), and that the ALJ presented specific, clear, and convincing reasons based on substantial evidence in the record for rejecting the physician's uncontroverted opinions. Id. at 501-02; Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988); Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 601 (9th Cir. 1984).

Because the only evidence in this case comes from the reports of Dr. Pecci, we agree with the district court that this case turns on whether Dr. Pecci's observations established "(1) that [Caldera] suffers from an impairment or combination of impairments listed in, or medically equal to those listed in 20 C.F.R. Part 404, Appendix 1 to Subpart P, or (2) that plaintiff [was] unable to do his past relevant work." Caldera had the initial burden of showing his illness prevented him from engaging in relevant past work. Barker v. Secretary of Health and Human Services, 882 F.2d 1474, 1476-78 (9th Cir. 1989); Sanchez, 812 F.2d at 511. If Caldera satisfied this burden, the Secretary was required to produce substantial evidence that Caldera could nonetheless do other types of work. Allen, 749 F.2d at 578-79 (citations omitted).

A. Was Caldera's Illness a Disability?

The district court was correct in concluding that Dr. Pecci's reports established the initial requirements for an affective disorder (depressive syndrome) as set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1, Sec. 12.04 (1990). We go further than the district court, however, and conclude that record as a whole indicates Caldera's illness also resulted in at least two of the functional limitations required by Subpart B of Sec. 12.04. For instance, Caldera's illness did result in " [m]arked difficulties in maintaining social functioning" as required by Sec. 12.04(B) (2): Dr. Pecci stated that Caldera was "isolated" and had "withdrawn from all social and pleasurable activities."

Caldera's illness also resulted in "deficiencies of concentration ... resulting in frequent failure to complete tasks in a timely manner" as required by Sec. 12.104(B) (3): When asked to evaluate appellant's ability to sustain focused attention, Dr. Pecci stated that Caldera's concentration was "extremely poor." Moreover, Dr. Pecci's diagnoses indicated that Caldera's paranoia, fear, tearfulness, and psychomotor retardation had rendered him "unable to cope with even minimal stress."

In arguing that the district court applied the wrong legal standard, Caldera in essence argues that the court and the ALJ did not accord the treating physician's medical opinion the "special weight" to which it is entitled. Embrey, 849 F.2d at 421. More specifically, Caldera argues that the ALJ did not present specific, clear and convincing reasons for rejecting Dr. Pecci's opinions, and that in the light of those opinions the ALJ improperly concluded Caldera could perform his past relevant work. We agree.

First, the ALJ did not present clear and convincing reasons for rejecting Dr. Pecci's medical opinions. For example, in Dr. Pecci's opinion Caldera was "isolated", "avoided social contact", and had "withdrawn from all social and pleasurable activities." The ALJ disregarded this opinion because Caldera said he "appreciate [d]" interacting with others and was living with a family. But just because a person lives with a family and appreciates talking with others does not mean the person has come out of isolation and can function effectively in society.

Dr. Pecci also stated that Caldera was "unable to cope with even minimal stress" and that his concentration was "extremely poor." In rejecting this opinion, the ALJ stated that "although [Caldera] describes some difficulties with concentration and persistence, these do not appear to have markedly affected his life." The ALJ also noted that Caldera's prognosis was good for the long run, that he could communicate in a coherent manner, that he had no physical impairments, and that he had proven to be frugal. These reasons are not sufficiently probative of Caldera's ability to deal with stress and to concentrate for us to say that they are clear and convincing reasons to reject Dr. Pecci's opinion on these matters.

We also view Caldera's ability to perform his past relevant work differently than the district court: in our view the ALJ's conclusion that Caldera could perform his past work is not supported by substantial evidence. Caldera is a therapist--a special sort of therapist, but a therapist nonetheless, and one whose work required him to relate not only to the body but also to the mind of his patients. The ALJ never took the nature of Caldera's work into account, concluding only that Caldera could perform "light to medium physical activities" which were not inconsistent with his previous work. But Caldera is suffering from isolation, paranoia, delusions, extremely poor concentration, and an inability to cope with even minimal stress; he is being treated with 200 milligrams of norpramin each day and has to deal with bizarre "psychotic somatic delusions" such as hot burning sensations all over his body and crackling sounds in his head. Nothing in the record supports the view that such a person is fit to earn a living by providing therapy to others.

Accordingly, we hold that Caldera has satisfied his initial burden of showing that his illness is a disability and has prevented him from engaging in his past relevant work as a mind-body therapist.

Because we hold that Caldera has satisfied his initial burden of showing that his illness has rendered him unable to perform his prior relevant work, we remand this case to the district court with directions to instruct the Secretary to determine whether Caldera could engage in other types of "substantial gainful work" existing in the national economy. See Barker, 882 F.2d at 1478; Allen, 749 F.2d at 579; 42 U.S.C.A. Sec. 423(d) (2) (A) (1983 & Supp.1990).

Caldera's request for attorney's fees is premature because this case is not yet final.

REVERSED AND REMANDED

 *

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