Debra Porteous v. Andrew Saul
19-35550
9th Cir.Mar 29, 2021Background
- Debra Porteous applied for Social Security disability benefits and was denied by an ALJ; the district court upheld the denial and Porteous appealed to the Ninth Circuit.
- Porteous uses a cane, reports "excruciating" joint pain with intermittent flares, difficulty sitting for long periods, need for frequent breaks, anxiety and panic attacks, and variable pain control from medications.
- The ALJ found Porteous did not meet any Listings for arthritis (ineffective ambulation or extreme loss of upper-extremity function) and adopted an RFC that discounted some of her subjective symptom testimony.
- A vocational expert testified that an individual off-task 20% of an 8-hour workday would have no jobs in the national economy.
- Porteous supplemented the record with additional post-October 2015 medical evidence showing worsening pain management; the Appeals Council materials were considered on review.
- The Ninth Circuit reversed and remanded: it upheld the ALJ’s Listings conclusion but found the ALJ erred in discounting Porteous’s subjective testimony and instructed further proceedings with that testimony credited for development of the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Porteous meets a Listing for arthritis (ineffective ambulation/upper-extremity loss) | Porteous argues her cane use, pain, and functional limits satisfy a Listing | ALJ/SSA: Porteous can ambulate and perform some fine/gross movements; activities contradict Listings | Held: Substantial evidence supports ALJ that Listings not met |
| Whether the ALJ properly rejected Porteous's subjective pain testimony | Porteous: ALJ failed to give specific, clear, and convincing reasons; medical record and supplemental evidence show severe pain and poor control | ALJ/SSA: Exam notes showed no acute distress, records indicate good pain management, and post-2015 documentation was lacking | Held: Reversed — ALJ did not give clear and convincing reasons; supplemented record undermines adverse credibility finding |
| Whether the RFC must account for frequent breaks/off-task time and entitlement to benefits | Porteous: Her need for frequent breaks/off-task time would preclude competitive work | ALJ/SSA: VE testimony established that being off-task 20% would preclude work; record unclear on exact frequency/duration | Held: Remanded — record not developed enough to award benefits; ALJ must credit subjective testimony for further proceedings |
| Whether reliance on a single non-examining reviewer was error | Porteous: ALJ erred by relying on a single reviewing physician without treating opinions | ALJ/SSA: No treating-source RFC opinions existed in the record | Held: No error — absence of treating medical opinion means ALJ may rely on available reviewing opinion |
Key Cases Cited
- Trevizo v. Berryhill, 871 F.3d 664 (9th Cir. 2017) (articulating standard for rejecting claimant's symptom testimony and requirement for clear and convincing reasons)
- Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014) (clear-and-convincing reasons required to discredit symptom testimony when no malingering)
- Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005) (absence of medical evidence of pain flares cannot alone justify rejecting pain testimony)
- Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157 (9th Cir. 2012) (court reviews the record as a whole, including materials submitted to the Appeals Council)
- Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007) (crediting testimony and awarding benefits requires a fully developed record showing claimant entitled to benefits)