*1 “Uniformity of de- of the Second Circuit. vitally impor- among the
cision circuits concerning on issues administra- tant tax laws. Thus the tax decisions tion of unless circuits should be followed other or there they demonstrably erroneous cogent rejecting reasons for them.” appear Comm’r, 1316, 1320 Unger v. 936 F.2d (D.C.Cir.1991) (quoting Keasler v. United (8th Cir.1985)). States, C. Conclusion reasons, foregoing the Tax
For Popovs’ denial of the home office Court’s deduction reversed. PART, IN AFFIRMED REVERSED PART, IN AND REMANDED. Costs on petitioners. appeal HOLOHAN, Anne Plaintiff- J.
Appellant,
v. Larry MASSANARI, Acting G. SSA,*
Commissioner of Defendant-Appellee.
No. 00-16090. Appeals, States United Court Ninth Circuit. Feb. Argued Submitted April Filed * Administration, R.App. Larry pursuant Fed. P. G. Massanari is substituted for Kenneth 43(c)(2). Apfel, Security S. Commissioner of the Social
Phyllis Matyi, California, A. Larkspur, for the plaintiff-appellant. Ogden,
David W. Attorney Assistant General, Mueller, III, Robert S. United Attorney, Walli, States Janice L. Chief Counsel, IX, Baird, Region Jeffrey H. As- Counsel, Regional sistant Security Social Administration, Francisco, California, San for the defendant-appellee. *5 FLETCHER,
Before: B. FERNANDEZ, PAEZ, Circuit Judges.
Opinion by Judge BETTY B. FLETCHER; Partial Concurrence and Partial by Judge Dissent FERNANDEZ. FLETCHER, BETTY B. Judge: Circuit Anne appeals from the district grant summary judgment court’s to the Security denying Commissioner Social claim objecting her to the termination of benefits, disability Ti- awarded under II Security tle of the Social Act. We re- verse restore her benefits.
Background
On November Anne Holohan application Security filed an for Social dis- ability under II benefits Title of the Social (the Act, Security §§ 42 U.S.C. 401-433 Act). eligibility She claimed for the bene- disability depres- fits on the basis of due to sion, attacks, alcoholism, anxiety coordina- problems, memory problems, tion loss of physical strength, prob- and concentration 1; 1995, March lems. On Social Secu- (SSA) rity Administration found Holohan 404.1520(b). § found that Holo- by eligible defined the Act and disabled as gainfully employed. han In its notice was to receive benefits. Holohan, it explained the SSA disabled, Second, qualify in order as drug addiction alcohol- “found and/or impairment. have a claimant must severe contributing is a factor material ism 404.1520(c). § Id. The ALJ found if had not your disability. This means we no im- physical while Holohan had severe your drug addiction al- considered and/or im- pairment, she did have severe mental coholism, you we would not have found namely, dysthymia, and alcohol pairments, disabled.” in full abuse remission. by II Congress In amended Title Third, impairment if a claimant’s severe eliminating drug dependency and alcohol impairment meets or exceeds a listed disability findings. as bases for See Con- Appendix regulations to Part 404 of the tract America Advancement Act of With II, Title then this suffi- implementing 423(d)(2)(C). § § In U.S.C. finding cient for the claimant to be dis- mandate, implement' Congress’ order to 404.1520(d). abled. Id. The ALJ found per- termination notices to the SSA sent that Holohan’s mental did not receiving disability who had sons benefits meet or exceed the functional limitations drug been found to be disabled virtue of in the Ho- appendix. considering listed in- dependency. or alcohol The notice capacity, specif- lohan’s functional the ALJ recipients formed the their benefits ically found Holohan’s statement that her they
would terminate unless had another condition had began deteriorated since she disability finding. basis Holo- her treatment with Oh to lack credibil- requested han such a notice and received ity, that Dr. rec- stating Oh’s treatment *6 claim, asserting redetermination of her improvement. ords indicated meaning that she was disabled within the Fourth, impair- if a claimant’s severe Act, considering of the even without her qualify disability by ment does not as a The alcoholism. SSA reviеwed Holohan’s meeting exceeding virtue of or the require- qualify case and concluded that she did not Appendix of impairment ments then the benefits. Holohan filed a prevent doing past must the claimant from request hearing, for a which was held on Otherwise, relevant work. the claimant is 29,1997. July implementing regu- not disabled under the hearing, represent- At the Holohan was 404.1520(e). § Id. Giving lations. Holo- by law ed a student. Holohan testified doubt,” han “the benefit of all the ALJ to, that she was among unable to work due longer found that she could no her perform things, depression other and severe anxi- previous newspaper work as a advertising panic decision, In ety with attacks. his account executive.
issued on September the Admin- Finally, disabled, in order to be (ALJ) Judge istrative Law reviewed the impairment prevent claimant’s must history evidence of Holohan’s medical and doing any from In other work. determin- engaged step sequential then in the five ing impairment pre- whether a claimant’s process evaluating disability evaluation work, vents her doing from other one must § claims set forth at 20 C.F.R. 404.1520. consider the claimant’s “residual functional First, if a education, claimant is found to be cur- capacity,” age, past and work rently working 404.1520(f). and engaged § experience. Id. Consider- substantial. gainful employment, she ing is not disabled these relying factors and on the Com- Guidelines, under II regulations. the- Title Id. missioner’s Medical-Vocational
1201 treatment improving Holohan was with physical- “can that Holohan the ALJ found deteriorating levels than as she claimed. at all exertional rather ly perform work performing mentally capable jurisdiction The district court had under type work.” simple, repetitive least § 405(g) (providing 42 for district U.S.C. that Holohan was сoncluded ALJ therefore jurisdiction to review final decisions court meaning of the Act within the not disabled Security). of Social Commissioner the SSA’s determination upheld timely appeal. notice of Holohan filed to receive disabil- eligible was not jurisdiction have under 28 We therefore Title II. ity benefits under U.S.C. 1291. that Holohan reaching the conclusion listing Appen- did meet or exceed of Review Standard evaluation) (at of the step three dix We review de novo district functional had residual that she sufficient upholding the court’s decision Commission work simple, repetitive capacity perform Apfel, of benefits. Harman v. er’s denial (at five), rejected specifically the ALJ step (9th Cir.2000). F.3d We Oh, treat- opinions James Holohan’s if decision must affirm the Commissioner’s Hsieh, Holo- Wynne ing psychiatrist, by supported it is substantial evidence and that Holo- primаry provider, care han’s applied the correct if the Commissioner impairments prevent han’s mental severe legal Apfel, standards. Tackett v. working. “reject[ed] The ALJ her from Cir.1999). (9th Evidence can concerning of Dr. Holo- Oh” if it is more than a scintil be “substantial” he functional limitations because han’s la, though preponderance. less than a even “totally found it to be inconsistent notes and rec- Id. at 1098. If the evidence can own treatment [Dr. Oh’s] outcome, Hospital].” may ords at Francisco General we not substitute our [San either rejected He Dr. Hsieh’s because for that of the ALJ. Id. Howev judgment knowledge of she did not have first-hand er, we cannot affirm the Commissioner’s and limitations and “simply by isolating specific decision concluded, because, (in he it was contradicted Id. supporting evidence.” quantum recent evidence weight of thе most quotation marks and citation omit ternal *7 in the record. ted). Instead, the rec we must consider whole, “weighing a both evidence ord as the denied Appeals Council of SSA that detracts” supports and evidence review, making the request for conclusion. Id. from the Commissioner’s the final decision of the opinion ALJ’s (internal marks and citation quotation filed of the SSA. Holohan Commissioner omitted). in the of the decision for review ALJ’s The district court summari-
district court.
of benefits.
ly upheld the ALJ’s denial
DISCUSSION
to the ALJ’s treatment of
regard
With
Opinion Evidence
A.
opinions,
and Hsieh’s
the district
Drs. Oh
regulations dis-
implementing
Title II’s
specific,
“gave
held that
the ALJ
court
opinions
types
the
of three
tinguish among
reasons, based on substantial
legitimate
“(1)
who treat
the
those
physicians:
of
entitled
evidence in the record” and so was
(2) those
(treating physicians);
claimant
physi-
rejеct
opinions
the
of Holohan’s
to
treat the claimant
examine but do not
who
regard to the ALJ’s credibili-
cians. With
(3) those who
(examining physicians);
concurred that
ty finding, the district court
treat
the claimant
examine nor
indicated that
neither
treatment records
Oh’s
(non-
only
opinion
treating physician
a
file]
who review the claimant’s
of
[but
examining
reviewing] physicians).”
convincing”
supported
“clear and
reasons
[or
(9th
Chater,
Lester v.
81 F.3d
in the record.
by substantial evidence
404.1527(d).
Cir.1995);
(9th
Chater,
§
see 20 C.F.R.
v.
Reddick
Generally,
treating physician’s opinion Cir.1998) (internal
marks and ci-
quotation
weight
examining
omitted).
carries more
than an
treating physician’s
tation
If the
physician’s,
examining, physician’s
and an
opinion
with other
medical
is inconsistent
weight
than a
opinion carnes more
re-
record,
in
“[treat-
substantial evidence
the
Lester, 81
viewing physician’s.
F.3d
opinions are still enti-
ing source medical
404.1527(d).
830;
§
In addi-
20 C.F.R.
weighted
to deference and must be
tled
tion,
weight
regulations give
more
in
using
provided
all the factors
20 CFR
opinions
explained
that are
than to those
(“Ad-
96-2p;
SSR
see id.
[§ ]404.1527.”
not,
are
see
C.F.R.
judicators
finding
that a
must remember
404.1527(d)(3),
§
opinions
and to the
treating
medical opinion
that a
source
specialists concerning
relating
matters
...
with the other substantial
inconsistent
nonspecialists,
that of
specialty
their
over
only
in
evidence
the case record means
404.1527(d)(5).
§
see id.
opinion
is not entitled to ‘control-
ling weight,’
opinion
not that the
should be
cases,
In
phy
benefits
cases,
rejected....
many
treating
typically provide
types
opin
sicians
two
opinion
source’s medical
will be entitled to
opinions
speak
ions: medical
to the
greatest weight
and should be
nature
of a
limita
and extent
claimant’s
adoрted, even if it
not meet the
does
test
tions,
opinions concerning
the ultimate
controlling weight.”).2
may
An ALJ
i.e.,
of disability,
opinions
issue
about
rely
opinion
on the medical
of a non-treat-
work,
capable
any
whether a claimant is
ing
contrary
doctor instead
opinion
given her or his limitations. Under the
treating
only
of a
doctor
if she or he
if
regulations,
treating physician’s
medi
provides “specific
legitimate”
reasons
opinion
cal
is supported
medically ac
supported by
substantial evidence
ceptable diagnostic techniques and is not
Lester,
(internal
record.
1203 Reddick, poor concentration. She is to in the record. able evidence stantial Matthews v. Sha (quoting at .725 rudimentary daily 157 F.3d maintain activities of Cir.1993) (9th (inter 678, lala, 680 living. omitted)). If the marks quotation
nal letter, conjunction Dr. in with his Oh’s of opinion on the issue treating physician’s notes, treatment is evidence that Holohan controverted, disability is the ALJ must qualified step as disabled three of “specific legitimate” rea provide still inquiry. step five reject treating physi in sons order to qualify step In order to as disabled at opinion. cian’s Id. evaluation, three of a claimant must Dr. rejected opinions of The ALJ in impairments meet or exceed listed Oh, treating psychiatrist, arid Holohan’s 1 Appendix regulations. to Part 404 of the Hsieh, recently had taken over as Dr. who 404.1520(d). § 20 In order to meet C.F.R. in primary physician, care Holohan’s listing Appendix in for a mental disor- im- that Holohan’s reaching conclusion der, satisfy a claimant must criteria in listing not meet or exceed a pairment did A of the which paragraph listings, medical- (at1 evalua- Appendix step in three of the ly presence substantiate the of mental tion) residual func- and that she had the disorder, B paragraphs and the criteria in simple, in capacity engage repeti- tional (at five). C, Both doctors step tive work or which describe the functional limita- pre-
opined that Holohan’s tions associated with the disorder which ability to her sented serious obstacles incompatible аbility with the to work. Instead, relied on the work. the ALJ P, Subpt. App. 20 C.F.R. Pt. examining reviewing opinions of other diagnosed § 12.00A. Dr. Oh has that Ho- physicians and his determination major depression panic with disorder testimony was not credible. lohan’s agoraphobia. without She therefore satis- paragraph fies the A criteria for both af- Opinion 1. Dr. Oh’s anxiety fective disorders and related disor- In letter dated June Compare Subpt. ders. 20 C.F.R. Pt. that Holohan’s Oh stated P, App. (depressive syn- 12.04A.1. depressive superimposed by disorder drome) Diagnostic with and Statistical disorder, effectively prevent her panic (DSM-IV) Manual of Mental Disorders employment. pursuing gainful from (Michael 345, 349-52, ed., 4th B. First Specifically, experiences spells rev.2000) (criteria ed., major de- text leading cognitive terror panic arid disorder), and 20 C.F.R. Pt. pressive experiences anxiety, break-up. She also P, (pаnic §1 at- Subpt. App. 12.06A.3. on, all day grave symptoms off and tacks) 429, 430-32, 433-34 with DSM-PV inter depression, including feeling no (criteria without panic agora- disorder feeling and hav things, hopeless, est phobia). difficulty making With ing decisions. disabling cognitive and affective these satisfy the criteria order symptoms, compounded by the stressor B, A im paragraph paragraph residing physically with a and verbal “in must result at least two pairments markedly ly spouse, impair abusive following”: ability place to function in a work like *9 1. in the activities Marked restriction nearly years 20 before her she did daily living; or of disability.... current abili [Holohan’s] maintaining 2. in Marked difficulties ty concentrate on work related tasks to anxiety functioning; or markedly impaired due to her social is concentration, to impairments Holohan’s would cause her persis- of 3. Deficiencies in a complete to work-related tasks pace resulting frequent in fail tence or timely Finally, Dr. Oh states timely in a manner. complete failure to tasks (in spells of terror “experiences or else- that Holohan settings manner work where); up panic leading cognitive and to break or on, day anxiety, ... off and all [as as] well episodes 4. of deterioration Repeated in- symptoms depression, grave with in or work- decompensation or work things, no in feel- cluding feeling interest settings which cause the individ- like hopeless, having difficulty making ing from that situation ual to withdraw Dr. these decisions.” Oh concludes signs exacerbation of experience or “disabling symp- and affective cognitive (which may symptoms include (cid:127) markedly impair ... [Holohan’s] toms behaviors). adaptive deterioration of ability place.” in a to function work 404, P, Subpt. App. 1 20 C.F.R. Pt. B regulations explain that the fоurth crite- 12.04B; § § Dr. see also id. 12.06B. Oh’s repeated adapt rion “refers to failure to to provides weighty letter evidence opinion circumstances” common to the stressful impairments meet three of that Holohan’s They environment. Id. 12.00C.4. work First, B criteria. Dr. paragraph Oh identify making specifically decisions as circle is limit- states Holohan’s “social common to work situations. Id. Dr. stress meetings, ed to her AA otherwise she re- is, therefore, opinion Oh’s evidence that significantly socially mains isolated.” The B Holohan satisfies the fourth criterion.4 im- regulations examples include as paired functioning provides social social isolation Dr. Oh’s thus evi as interpersonal qualifies and the avoidance of rela- dence that Holohan disabled P, tionships. Subpt. impairments Pt. she meets the listed See C.F.R. because rejected §1 Dr. in App. Appendix 12.00C.2. Oh’s statemеnt 1. The ALJ Dr. Oh’s markedly evidence that Holohan has diffi- that Holohan “is im “[m]arked maintaining functioning.”3 paired respect any in performance culties social to Second, activity anxiety/panic states that Holohan’s “abil- work due to attacks Oh to on ity poor concentrate work related tasks is concentration” because he found markedly impaired anxiety “totally [Dr. Oh’s] due to her and it to be inconsistent with poor concentration.” This is evidence that own treatment notes and records at [San tion, regulations, explained pan- 3. As used in the "marked” she that she would suffer moderate, "means more than but less than ic attacks when she studied and when she had P, Subpt. App. extreme.” 20 C.F.R. Pt. "quiet keeping time.” This is in with Dr. "significantly” § 12.00C. Dr. Oh’s use of in notes, report which Oh's treatment that Holo- isolation, describing Holohan’s when social prone panic han is more tо have attacks when considered with his observation that "Holo- panic is inactive. she When she had attacks han's social AA circle is limited meet- testified, reading, while she was ings” describes social isolation that is more go “afraid to back to the book because I'll than moderate. panic.” testimony evi- reactivate that This dence that Holohan’s result addition, testimony provides 4. concentrate, inability resulting an in failure impairments satisfy evidence that her manner, complete timely tasks in a paragraph third' B and fourth criteria. Holo- settings, evidence that work-like that, hearing han testified at the time of the (i.e., "decompensates” experiences an exacer- ALJ, talcing City before the was class symptoms, Pt. bation see C.F.R. College. She further testified that she had P, 12.00C.4.), Subpt. App. §1 and withdraws anti-anxiety immediately take her medication not find this panic from the stressor. The did before class so that she wouldn't have a during period. testimony credibility. attack the one hour In addi- to lack *10 See, in Hospital].” workplace.6 e.g., Francisco The ALJ tion Kellough General v. Heckler, (4th Cir.1986) that Dr. Oh’s treatment notes “indi- stated Ativan, panic attacks with (“ cate control ‘Feels well’ and ‘normal activity’ must be great improvement in [Holohan’s] context; read in the claimant has estab- Dr. in fact noted that [Holo- condition. Oh lished that she suffered a severe cardiac attack increased with panic problem han’s] impairment in 1975. A note entered in inactivity, happy and that she was when 1975,just November one month before she joined the YMCA.” hospitalized open was for heart surgery, argues that the ALJ committed also stated that Kellough she ‘feels well.’ in Dr. legal rejecting opinion error Oh’s testified without contradiction her concerning scope of her limitations. activity’ ‘normal following surgery was argument Her has merit. As Holohan limited.”). very out, the is selective in points ALJ his The specific rejecting ALJ’s reason for notes, exag- reliance on Dr. Oh’s treatment Dr. opinion Oh’s was that it conflicted with contents, in gerates description his of their Dr. Although Oh’s treatment notes. such and misattributes statements to Dr. Oh. justify conflict could a decision not to Although hopeful he makes comments give the treating physician’s opinion con- classes, Dr. attending about Holohan’s Oh trolling weight, see C.F.R. symptoms also lists as Holohan’s “demo- 404.1527(c)(2),(d)(2), (d)(4), §§ in this case ralization, feeling trapp[ed] anxiety ... there is not in substantial evidence ... Dr. depressed mood.” Oh never de- gave record to the reason the ALJ in “great improvement scribes [Holo- rejecting Dr. opinion. Oh’s When read conditiоn” as the suggests. han’s] context, in full Dr. Oh’s treatment he state on While does November better,” “doing explains opinion he notes are consistent with his letter. “(less [unintelligible] pan- means this sup- Because substantial evidence does not better’) ics—‘15% when [up- but inactive port specific gave reason the ALJ sign, panic.” in] ward arrow read: increase Dr. rejecting concerning Oh’s Finally, that Dr. the ALJ states Oh de- disability, question of Holohan’s we con- “infrequent having scribed Holohan as in rejecting clude that the ALJ erred Dr. However, panic attacks.” it was not Dr. opinion. Oh’s physician but other Oh some San Fran- Hospital cisco General who so character- Opinions 2. Medical Other ized Holohan’s attacks.5 Examining Physicians a. Dr. Oh’s statements must be read in five reports The record reflects the diagnostic picture context of the overall he examining repоrts of two physicians. a person draws. That who suffers from examining physicians, of the those of Drs. attacks, panic anxiety, depres- severe Solon, support Johnson and Holohan’s improvement sion makes some does not report, claim. In a December person’s impairments mean that no longer seriously ability diagnosed affect her to func- Holohan with moderate Johnson reason, reject government’s 5. The district court also 6. this we misattributed this For argument that Dr. Oh’s is contradict- quotation physician, to Dr. Oh. The other by ed Dr. Kristen Shaeffer’s notation signature unintelligible, appears whose panic by were “alleviated” attacks only have seen Holohan three times over the physician Avitan and a another statement many-year period at issue this case. occasionally who treated Holohan that Holo- "feeling "slеeping well.” han was well” and *11 re- depressed. and He “mildly” anxious He stated that Holo- depression. clinical major history no unclear, it that he found ported but prognosis han’s was and that functioning psychotic episode her or imagine depression was “difficult any competitive might be able to effectively in sustained that Holohan he believed However, present in her condi- employment setting Dr. simple work. perform some 1995, 6, February Dr. report In a psychi- tion.” statement about Holohan’s Flach’s with recurrent diagnosed Holohan only Solon history flatly contradicted atric and concluded depression, chronic notation that by by the record but his own difficulty main- have considerable “would history psychi- a reported had Holohan and taining the sustained concentration anxiety, and depression atric services for necessary mаintain a normal persistence psychia- a including weekly visits to twice did, however, pre- Dr. workweek.” Solon 1993, prescrip- 1990 and and trist between psychiatric appropriate that “with dict Moreover, antidepressants. Dr. tions for treatment, likely will remit symptoms her that, impair- only Flach states year.”7 within six months to a ments, “may” perform be able simple if not detailed tasks.8 examining physi- at least some remaining three Of the cians, only physi- on the two concentrated Reviewing Physicians b. impair- of Holohan’s cal manifestations 1996, July report ments. In a dated reports contains the The record also (whose signature unintelligi- physician reviewing physicians, those of Drs. three ble) disturbance, gait but notes a moderate Hansell, Burdan, Bur- and Hsieh. Doctors question to a on the form respond does not simply boxes on dan and Hansell checked psychiatriс impair- concerning evidence of sup- reports gave significant form no Similarly, report August in a dated ment. for their conclusions. porting explanation 24, 1996, Katzenberg, neurologist, Dr. report, August Dr. Hanseh’s dated that Holohan from no ob- found suffered 1996, simply conclusorily states that Holo- jective sensory deficit which would motion impairments. In con- han has no severe working. from He acknowl- prevent her trast, 23, 1995, February in report dated edged depression that Holohan had im- severely Burdan found Holohan Dr. Ho- anxiety, but did not consider whether he that he did not paired, but indicated in- psychiatric impairments lohan’s would enough have information to determine ability to These terfere with her work. met two of the four cate- whether Holohan light no on whether Holo- reports shed Appendix B l.9 Dr. Bur- gory criteria mental do or do not han’s is, therefore, neutral оn the report dan’s render her disabled. question qualified of whether Holohan as Flach, step step Finally, July Dr. disabled at three of five on being as psychologist, diagnosed inquiry. optimistic syndrome, prognosis 7. Dr. was not and a substance abuse disorder. Solon’s out, satisfy para- by and Shaef- is sufficient to three of the borne as is shown Drs. Oh This notes, graph Appendix fer’s treatment as well as Dr. Oh’s 1997 A criteria in 1. See 20 C.F.R. P, 12.02, 12.04, Subpt. App. §§ letter. Pt. regard paragraph 12.09. With to the B crite- ria, opin- report only
8. The AU mischaracterized Dr. Flach's Dr. Burdan’s indicates moder- “may” perform paragraph changing ion to “could” the four B ate limitation two of B2, (B1 simple categories supra), marked if not deLailedtasks. see (B3, supra), in one see and insuffi- limitation a determination in the 9. Dr. Burdan found that Holohan suffered cient evidence make disorder, (B4, depressive remaining category suрra). organic see from an mental Hansell, clearly the record does not contraindicate Drs. Burdan Unlike *12 opin- activity.” her of work explaining performance a letter Hsieh wrote At the time she concerning ions Holohan. that We conclude the ALJ’s behalf, Dr. had on Holohan’s wrote Hsieh specific rejecting reason for Dr. Hsieh’s pri- recently taken over as Holohan’s just not opinion supported by medical sub explained that mary physician. care She concluding stantial evidence. In that the Holohan’s case from had taken over she most recent medical evidence indicates Shaeffer, with whom Holohan Dr. Kristen improving, that Holohan was the se ALJ Based “long, relationship.”10 had a close lectively on in relied some entries Holo file, in a on a review of Holohan’s letter han’s records from San General Francisco. 1997, 9, July Dr. Hsieh stated that dated Hospital ignored many and others that her continued, impairment.11 indicated severe
impression is that Mrs. Holohan has
addition,
the ALJ relied on the medical
had,
have,
illness of
and continues
opinions
examining
physi
and reviewing
severity.
being
In addition to
great
(besides
Hsieh)
cians
that of Dr.
to the
abuse, Mrs. Holohan
victim of domestic
opinion
exclusion of Dr. Oh’s more recent
in-
depression,
has
that include
diseases
impairments
quite
Holohan’s
se
somnia,
anxiety
and
severe
disorder
only
vere.
medical
in the
opinions
The
described as
panic attacks
were
record that conflict with Dr. Oh’s are those
in
“quite debilitating” by
psychologist
Flach,
Dr.
that Holohan had
who stated
implication
The
from all re-
7/96....
only
anxiety
depression,
“mild”
and
ports is that Mrs. Holohan continues
Hansell,
conclusorily
Dr.
indicated
who
psychiаtric
suffer from severe
disease
impairments.
that Holohan had no severe
hinder her from maintain-
which would
However,
opinions
examining
these
an—of
ing job.
only
Holohan
physician who examined
merely
rejected
opinion
reviewing physician
Dr.
be- once and a
who
The ALJ
Hsieh’s
[sic,
giving supporting
checked
without
cause “Dr. Hsieh admitted
he
boxes
outweigh
knowledge
explanations
hand
insufficient
she] did not have first
—are
treating
of a
who
opinion
physician
and limitations”
[Holohan’s]
period
Holohan over a
of time
weight
and because “the
of the most re-
cared for
an
improve-
provided
supported
of record indicates
and who
cent evidence
panic
explanation
in
and treatment records. See
ment
her mental condition
(3).
attacks,
404.1527(d)(2),
§§
When Dr.
separated
when
from C.F.R.
particularly
environment,
given apрropriate
consider-
unfortunate marital
and Oh’s
"anxious, tearful");
id.
(April
Dr.
treated Holohan for over two
Hólohan was
10.
Shaeffer
regularly.
24,
years
1996) (same;
and saw her
We note that
noting
"continues
opin
although
write an
Dr. Shaeffer did not
attacks”).
panic
,
on
the record
ion letter
behalf of Holohan
Although
does contain her treatment notes.
entries,
specifically
two
11. The ALJ
mentions
passing, the ALJ does
he mentions them in
dated
one dated December
the other
appear
not
to have considered Dr. Shaeffer's
6, 1997, by
physician
February
one
which
notes,
im
which do not indicate measurable
depression and anxi-
indicate that Holohan’s
during
provement in
condition
ety
well.” This
are stable and that she "feels
case,
period at issue in this
see Kristen Shaef-
physician appears to have treated Holohan
fer,
(April
Anne
Trеatment Note for
contrast,
By
only a
times.
the ALJ does
few
3,
disorder);
1997) (indicating
anxiety
severe
many
indicate
not mention the
entries that
1997)
(June 26,
id.
(indicating
anxiety
severe
See,
continued,
19,
psychiatric problems.
id. dated June
severe
panic);
disorder with
28,
(same;
1996)
id.
(same);
noting
e.g., supra
(May
note 10.
-way
had been in a half
house
ation,
weight
that “the
it cannot be said
alcoholics in
that she saw
recovering
record indi-
the most recent evidence of
in
that she had been
psychiatrist
her mental condition a
improvement
cates
Therefore,
seeing.
regularly
there was
between
panic
attacks.”
Shaeffer
support
began going
evidence to
and that she
substantial
Dr. Hsieh’s
rejecting
ALJ’s reason
stress clinic sometime
1995.
opinion.
offers for his
only
other
credibility finding is his statement
*13
Credibility Determination
B.
improvement
general
“record in
indicates
rеsponsible
However,
an ALJ is
January
general
While
1996.”
since
credibility
determining the
of a claim
sup-
for
findings are an insufficient basis
ant,
reject a claimant’s
credibility
an ALJ cannot
determination.
port an adverse
Reddick,
giving clear and con
testimony
(citing
without
at 722
Les-
See
Reddick,
834).
722.
vincing
ter,
reasons.
The March
1995 notice
Ho-
Mathews,
v.
See Heckler
465 U.S.
eligible
that the
had found her
lohan
SSA
(“In
(1984)
disability
ex- 104
79 L.Ed.2d
Security
benefits
S.Ct.
Social
eligibili-
forecast which current
leaves and
standing
purposes
to establish
order
someday
Congress may
revoke.
controversy’
ty
re-
criteria
‘case or
the constitutional
must show that he
plaintiff
quirement,
reasons,
we hold that
For these
actual or
has suffered some
personаlly
did not violate Holo-
March
1995 notice
puta-
of the
injury as
result
threatened
process.
due
right
procedural
han’s
defendant,
...
illegal conduct of the
tively
ted)).13
ternal
dressed
quotation
by a favorable decision
injury
marks and citations
likely to be re-
....
” (in-
omit-
to remand for further
error. We must
The ALJ
[*]
decide, however, whether
committed reversible
[*]
proceedings
[*]
and ad
an
of bene
evidence or for
award
Holohan’s second ditional
regard
With
factors,
whether to remand for
claim,
we
fits. The decision
the Mathews
applying
or for an award of
proceedings
to inform further
that the
failure
conclude
SSA’s
Reddick,
our discretion.
notice that her
benefits is within
eligibility
in its
repeatedly held
materiality
F.3d at 728. We have
appeal
failure to
SSA’s
proceedings
further
subject
to ter
that a remand for
finding would
her benefits
unnecessary
fully
if the record is
devel
Congress
if
later eliminated alco
mination
from, the recоrd that
oped and it is clear
as a basis for
benefit
holism
required
would
to award bene
right to the ALJ
be
awards did not violate Holohan’s
id.;
Shalala,
See, e.g.,
that a
Ghokassian v.
process.
disputing
There is no
fits.
due
*15
(9th
1300,
Cir.1994); Pitzer v.
in 41 F.3d
1303
disability
recipient’s
benefits
interest
(9th
Sullivan,
502,
Cir.1990);
506
receipt of her or his benefits is
continued
HHS,
Mathews,
342,
F.2d
Varney
Secretary
424
96
v.
859
great. See
U.S. at
of
(9th Cir.1988).
1396,
However,
adopted
implementing
in
the
1399
We
S.Ct. 893.
im
“recognized
we
the
to exclude alcohol
this rule because
congressional mandate
expediting disability
of
claims.”
portance
as bases for
drug
ism
abuse
Ghokassian,
Indeed,
awards,
Conclusion regularly that is unusual. engage We Because the does not contain record complex rummage through locutions as we evidence that would substantial reweigh piece records and each of evi- disabled, finding that Holohan is and dence, with no real deference whatsoever the record contain evidence because does those to who work with and decide social supports finding meets security disаbility on a day-to-day cases Appendix 1 we remand listings, this That approach basis. enables us to cast with case the district court instructions brume over the fact that we actually for an award to remand the ALJ However, retrying cases. it is thing one benefits. error; it quite find another to decide fact, expert that the trier of agency, Reversed and Remanded with Instruc- and the district have perceptions court tions. the record so inferior ours that benefits FERNANDEZ, Judge, Circuit must be ordered with no further ado. Concurring Dissenting: needy Holohan does to be a per- seem intertwined and buried in an While son, perform and I that she could doubt *16 rules, discussion regula intricate of the economy. jobs my the national Were tions, rulings, this case is still another ALJ, impressions test, were I an I example that of this court’s insistence it be not, They so and I am would find. not. ultimate trier social seсurity of fact Thus, while there were errors the ad- Thus, ALJ, although cases. level, agree ministrative I cannot that we fact, Appeals is the true trier of who upon should take it ourselves to order an judge and the court Council district were most, I award of benefits. At would re- disabled, all is not satisfied proceedings. turn this case for further alcoholism,1 except, perhaps, for we decide Therefore, agree that while I some er- none of them understood the law or committed, I rors were dissent from the evidence, and, therefore, only not re direction that be awarded at benefits this payment but also direct of bene verse time. I agree fits. While ALJ did not touch all bases in properly deciding of the case, I do that we agree
this should all reweigh grant of the ben evidence efits. Originally, the ALJ determined that did not affect her.
1. had held alcoholism alcoholism hand, contributing any material to On the other the ALJ found that she was factor dis- ability, proceeding but in the at hand the was not disabled at all.