*1
goods
segregated
in Fultz were
ORDER
cause the
identified to the officers as
expressly
prior judgment,
Our
v.Wells Clackamas
consent-giver’s.
not the
person’s,
another
Associates, P.C.,
Gastroenterology
here,
materially different facts
Given
(9th Cir.2001), having
F.3d 903
been re
extending Fultz. That
majority is
versed and
Supreme
remanded
permissible, were it not for Mat-
might be
Court,
Gastroenterology
Clackamas
Asso
Supreme
to follow the
lock. We have
—
ciates,
Wells,
-,
P.C. v.
U.S.
Fultz cannot
Court decision in Matlock.
(2003),
S.Ct.
Matlock limits the extension limit. passes
This case CELAYA, Plaintiff-Appellant,
Carmen v. HALTER, William S. Commissioner of WELLS, Anne Plaintiff-
Deborah Security Administration, The Social Appellant, Defendant-Appellee. No. 01-16964. CLACKAMAS GASTROENTEROLOGY Appeals, Court of United States ASSOCIATES, P.C., Oregon Corpo- Ninth Circuit. ration, Defendant-Appellee. Argued and Submitted Nov. 2002.
No. 00-35545. Filed June Appeals, United States Court Ninth Circuit. 13, 2003.
June
Craig Crispin, Crispin A. and Associ-
ates, Portland, OR, Plaintiff-Appellant. Seymour,
Steven W. Samuels Yeolin Portland, OR, Seymour,
Wiener Kantor & Defendant-Appellee. THOMPSON, TASHIMA,
Before
GRABER, Judges. Circuit *2 California, Miller, Oakland, Hunt
James appellant. buncher, Forslund, Re- ployed A. Assistant broccoli store sam- Jacqueline Counsel, Security Adminis- gional Social pler, dry-cleaners presser. She Francisco, California, tration, for the San stopped working on July 1996. She appellee. working part-time laundry resumed
August 1997. She did not during work the intervening period of slightly more than a dizziness, tiredness, year, reporting and headaches. Her doctors attributed these symptoms hypertension, to for which she successfully had been April treated from FLETCHER, Before B. RICHARD S. 1994, until at least mid-1995. RAWLINSON, ARNOLD,* and Circuit Judges. diagnosed with diabetes in 1995, July which was controlled with medi- BETTY B. Opinion by Judge 1995, by cation December and remained so FLETCHER; by Judge Dissent throughout in period question. By RAWLINSON. date, hypertension her had become FLETCHER, Judge. BETTY B. Circuit climb; high borderline and continued to Plaintiff-Appellant Celaya ap- Carmen changed by her doctors her medication grant summary the district court’s peals September pressure 1996. Her blood Defendant-Appellee to judgment Commis- ranged 1997, in January from to 190/110 Security denying sioner of Social being “apparently good “stable” and under supplemental security for application 1997, April control” at in to achiev- 140/76 Celaya, acting disability pro benefits. se 29, 1997, ing “finally good July control” on through hearing, the initial asserted an mellitus, inability slightly year stopped to to diabetes more than a after work due she dizziness, headaches, high pressure, blood Body work. Mass Index of at least With and, asserts, at least pain, fatigue, foot she 44, plaintiff over exceeded the criteri- well implicitly obesity. alleges She categorize on level of 40 that would her as district court over-looked six errors obese,” “extremely highest category regard- important ALJ. The most these See Social Security used Rul- SSA. significance ed failure to credit the ing 00-3p, Fed.Reg. (referencing related her especially to NIH Clinical Guidelines Identifica- ability return to work. Because we find tion, Evaluation, and Treatment of Over- obligation that the ALJ did not meet his Adults.) weight Obesity height Her develop the we reverse the district 1996; was measured at 57" November court’s decision and remand for further August disability report, how- record, particularly development ever, an interviewer estimated her respect to claimant’s During period 53". for which she I. AND FACTUAL PROCEDURAL benefits, eligibility asserts BACKGROUND ranged pounds. from 205 to years Plaintiff was 57 Carmen application Plaintiff filed her benefits supplemental she applied old when se- Re- August completing “Vocational curity August benefits port” August on 30. On December is illiterate. In the fifteen She claim, 1996, “Physical Functioning Residual Ca- years preceding her she was em- * Arnold, Appeals, sitting by designation. S. Senior Honorable Richard Cir- Judge Eighth cuit of the Circuit Court of (PRFCA) impairments significantly more severe pre-
pacity Assessment” consultant Social pared by physical a medical limit or mental their procedure authorized Security Agency, a Step three conduct basic work activities. rec- § 404.906. The PRFCA by 20 C.F.R. automatically labels as disabled those exertional, postural, manipu- ognized impairment or claimants whose lative, visual, or environ- communicative requirement the duration ments meet activities, limitations on Plaintiffs mental given in a equal are listed or to those listed can lift. limits on how much she other than appendix. Benefits are awarded calling instructions for substantia- Despite Step four three if claimants are disabled. conclusions, contains tion remaining claimants disqualifies those and evinces no attention no discussion them prevent whose do *4 Apparently medical record. five doing past Step from relevant work. PRFCA, the Com- largely upon the based impair- disqualifies those claimants whose administratively ap- denied her missioner prevent doing them from ments do hearing, after a the ALJ did plication, and work, step the bur- other but at this last found that she could likewise. The ALJ the claimant to the proof den of shifts from work, “light” including past her work as do disqualified government. Claimants not cleaners, dry despite in a her presser by eligible are for benefits. step five appeal, administrative impairments. On adopted was as the final the ALJ’s decision A Rejected claims. February decision of the Commissioner on unper- find four of claims We complaint filed her suasive, they but discuss them first as 1,May district court on 2000. After prove introduce information that will es- hearing, granted the court defendant’s claims. deciding sential to her other two summary judgment. for Ce- cross-motion laya timely appealed to this court. failed Celaya’s argument ALJ that she to credit her doctor’s statement II. DISCUSSION unavailing. The state- could work is review the district court’s We ment —“It is not clear to me whether she novo, summary judgment de grant of get pressure will able to her blood be by factual determinations will affirm those control, em- perform gainful under Commissioner, acting through the ployment” prognosticated what would — ALJ, supported which are substantial if un- happen hypertension her remained Chater, 94 F.3d evidence. Saelee However, Celaya’s pres- controlled. blood (9th Cir.1996). control brought sure was under before assessing eligibility In a claimant’s for one-year required for period end of the benefits under both 20 C.F.R. Part 404 eligibility for due to a automatic benefits (Federal Survivors, Age, Old and Disabili- disability, rendering listed the doctor’s ex- Insurance) ty (Supplemental and Part 416 pressed concern moot. Blind, Security Aged, for Income Celaya argues that she should Disabled), Security Agency the Social uses disability qualified automatically have for five-step sequential process, evaluation weight on her status based detailed in 20 C.F.R. 404.1520 and (20 Part according Listing 9.09 C.F.R. disqualifies claimants Step 416.920. one P, Listing Appendix Subpart engaged gainful ac- who are substantial 28,046-47 Reg. 61 Fed. Impairments tivity being from considered disabled un- (1997)). internally The record was contra regulations. Step disqualifies der the two dictory height. argues her She regarding those claimants who do not have one or presents to be less no evidence that height had been found would contradict that if her 57", qualified Chater, have her finding. than this Macri v. automatically Cir.1996) status even (9th (plaintiff must submit any Given impairment.1 in the absence sufficient of impairment for a figure only one re- the 57" multiple impairment analysis to re- be measurement, however, an actual flecting quired). supported by on it the ALJ’s reliance contrast, By Celaya’s obesity was not accept evidence. If we the 57" substantial merely symptom diag- of either of her figure, Celaya’s weight was not consistent- (i.e., hy- nosed diabetes and pounds criterion of 212 ly over the level pertension), but an independent condition. Thus, year period. one the ALJ was question is whether it should have qualify did not automati- correct she been considered the ALJ in analyzing cally as disabled absent other Celaya’s ability to work. Defendant ar- ments. . not, gues that it should for two reasons. Celaya argues that the ALJ failed to First, because did not meet her com- specific findings regarding make criteria for has But, pain. she admitted plaints of excess no role in a In analysis. three other being pain, to not continual *5 words, if obesity defendant asserts that is reasonably underlying that the com- noted enough not severe a establish reports pain which her of plaints itself, step three even the absence control. predicated were had come under any impairment, of other it is not to be credibility reasons for his de- The ALJ’s Second, at all. considered because she did convincing, clear and suf- termination were explicitly obesity not raise as a factor con- ficiently specific, supported sub- tributing disability, to her the ALJ had no evidence in the record. stantial obligation to consider it. argues also that the ALJ relied on evidence outside the record deter- obesity multiple The role in a of fac- mining that she could return to work. The analysis. tors evidence, agreed that district court the Although Celaya did not meet the “December DDS Medieal/Vocational listing obesity, criterion for that does not Decision Guide” was not in the but ignore mean that the should it. The points providing PRFCA argument plaintiff since did not meet information. same obesity criteria for her listed B. to include consideration Failure not in a im multiple need be considered headaches and pairments analysis gets things backwards. listing If a claimant does meet the criteri
Celaya claims that failed to impairments, on for one or more she is give due consideration to headaches. judged to be disabled without the need to ALJ found that the headaches were any analysis. pre conduct further It is high pressure, attributable to her blood cisely a condition short of the when falls addressing and that because the latter criterion, here, headaches, analysis an is they such would alleviate the need 423(d)(2)(B) § separately. Celaya appropriate. not be considered See U.S.C. multiple impairment analysis, only by 1. This was a correct statement of the law as 1999, however, impact upon of 1997. In the SSA removed dint of its the claimant’s muscu- loskeletal, obesity listing respiratory, sys- impairments, from the or cardiovascular 46,122. Reg. Obesity may Fed. still enter into tem. equals a claimant (“In determining “In whether individual’s determining whether of sufficient medical three of the Secre- are under ... ... could be the basis process, that such severity tary’s disability evaluation section, Secretary under this eligibility adequately his evalua- explain ALJ must all combined effect of shall consider and the combined tion of alternative tests re- impairments without individual’s impairments.” Marcia v. effects of the if impairment, such gard to whether Sullivan, (1990); see of such would be separately, considered 83-19, at 91. Security Ruling also Social 404.1545(e), C.F.R. severity.”), 20 responsible determining The ALJ was 416.945(e) (“we limiting will consider Celaya’s obesity upon the effect impairment(s), even your all effects of and its effect on her impairments, other severe, determining those that are health, given general to work and Fur- capacity.”). your residual functional impairments. of those De- presence thermore, 96-8p states agency ruling SSR so, not do admits that the ALJ did fendant remand, that determi- implicitly. even On RFC, adjudicator assessing [i]n made.2 nation must be and restric- limitations must consider by all of individual’s imposed tions triggers 2. What inclusion of factor even those that are not impairments, multiple impairment analysis. a “not severe” “severe.” While multiple that even if a argues Defendant limit an in- significantly may ment ap- have been impairment activ- ability to do basic work dividual’s Celaya explicitly raised her propriate had ities, considered with may it —when factor, not do disabling as a she did limitations due to other or restrictions so. The ALJ should nevertheless have critical to the outcome impairments —be *6 analysis, in three included it such an of a claim. First, implicitly in reasons. it was raised hypertension were and Celaya’s diabetes Second, symptoms. it report of impairment”— a “severe admittedly each from the record that was clear significant restric- 1.e., “imposes one obesity at close to the least perform basic work in the to tions criterion, and was a condition that could activities,” being themselves id.—without Third, illnesses. reported exacerbate her Logically, three. at dispositive status, light Celaya’s pro se the ALJ’s barely short of the criteri- obesity, though and the information observation on, catego- into the same may have fallen him on the record should have alerted obesity effect of on ry. potential Given conditions, develop respect the need to responsi- had a these interactive effect. to her bility to consider their 423(d)(2)(B), § quote 20 argues we cite no case we from U.S.C.
2. The dissent 404.1545(e), 416.945(e) agency C.F.R. authority proposition that a combina- for the regulatory ruling 96-8p are models of SSR non-disabling impairments and non- tion of clarity. could not If a combination of factors generate qualifica- qualifying can disabilities benefits, single qualify applicant for and a We do Post at 1185-1186. tion for benefits. present, there never qualifying factor need be supra regulations cited could not how the see multiple impairment be a need for otherwise, possibly and if there is be read analysis. view Marcia is If in the dissent’s authority may it be because ALJs of case lack sufficiently authority” clear "case for the multiple impair- routinely conducted have case, we trust that the instant case will instant needed, so that we seldom analyses as authority point ment sufficiently clear on this be grounds. phrases future cases. vacate on such The need to obesity ALJ’s exclusion of district court to remand the case to the The in that he was analysis step-three multiple impairment his is error ALJ for from illiterate, unrepresented addressing explicitly accounts for the very likely marginal who never knew that direct and effects of plain- claimant partial basis obesity during period question she could assert tiffs disability. always reviewable, The ALJ has a and that for her culminates on-the- fairly duty fully findings.3 record “special record and to assure claimant’s Failure specific C. to make detailed and ... even when the interests are considered findings comparing Celaya’s residual represented claimant is counsel.” functioning capacity with the require- (9th Heckler, 441, Broim v. 713 F.2d past presser. ments work as a omitted). Cir.1983) (citations When counsel, The ALJ’s conclusion that represented claimant is heightened. Higbee apparently upon is could work rests his com responsibility this (9th Sullivan, August parison Cir. “Vocational 1992) Report” (particularly notes that: presser) work prior as a December umpire not a ALJ is mere such
[T]he 10, 1996 PRFCA. The PRFCA was com proceeding, independent has an Mitts, M.D., pleted by Murray a medical duty fully develop espe- stamp page consultant. A on its final is cially repre- where the claimant is not Good, signed by R.M. M.D. and dated ... it is incumbent sented: stamp March 1997. The states “I scrupulously conscientiously have into, of, file, all the probe inquire explore for all reviewed and the affirmed, especial- facts. He must be assessment of is the relevant as writ 12/10/96 ly diligent ensuring that favorable as An additional check mark ten.” indicates facts and circum- findings complete well unfavorable that “These the medical stances are elicited. portion determination.” (citations quotation and internal marks “treating that no or PRFCA states omitted). statement(s) examining regarding source judgment physical capacities”
The district court’s on claimant’s were re- this *7 in completion. recog- claim is therefore reversed. We direct the viewed to aid its It place trigger we the need for additional re- The dissent warns that ALJs suffice position having person. in the of to hold "seance-like view even if it is not discernable in cases, proceedings” implicit presence a to "divine In other discernable though (e.g. missing ments.” Post at 1186. Not at all. In non-asserted condition case, limb) suggest may instant the fact that was at the need for additional most pounds 4' 9" tall and at least over 205 review even if it is not noted in the record. one, required included in the record. It trivial In cases such as the instant the combina- presence arithmetic calculations to determine that her tion of a in the record condition’s placed "extremely person trigger BMI her in the obese” and a need for review. In in range. previously Even if the ALJ had failed' all such cases we ask whether the ALJ has reasonably fulfilling to note her and in the acted in his or her re- conscientious, meeting Celaya person sponsibility scrupulous, and in should have alerted of that, facts, especially given relationship diligent inquiry required by him be- into the diabetes, obesity, hypertension Higbee. tween and we defer to ALJ he That determinations perhaps compute should a BMI to facilitate a made on substantial evidence in the record cases, multiple impairment analysis. obligation to devel- In some does not excuse the ALJ's presence op analysis of a non-asserted the record for both his or her and status) (e.g. HIV-positive might our review. of Dr. or Dr. Good were aware exertional, Mitts postural, manipulative, nizes visual, height. or environmental and Celaya’s weight communicative activities, other limitations on confidence that the report offers no This much can lift. The on how she than limits decision on a record could make his form state that for the instructions Plaintiffs attempted had to assess the PRFCA should completing person demands physical to withstand the on all evidence ... conclusions “base job required a fair amount of a observations), (including “describe file” during year which she standing, con- [the] evidence substantiates how the obese, substantially only diabetic and clusions,” “appropriate treating request of, was first out hypertension when her regard- statements examining and source under, control. only marginally and then capacities,” “consider[ ] individual’s ing the conclude that therefore cannot We limitations any alleged respond[] and on substantial etc.) decision was based ALJ’s fatigue, by symptoms (pain, imposed totality that took the medically ... determin- attributable assessment of into account. We vacate impairment,” “discuss[ ] medical condition able expla- limitations in the symptom-related order and instruct the the district court’s your conclusions” each of the nation for proper to the ALJ for a court to remand above, “respond[ to all ] domains noted on all of the evi- based step-four or fac- physical limitations allegations it currently record and as is dence physical limitations.” can cause tors which supplemented. form, completed, does none of sug- check marks aside from two these: CONCLUSION Celaya’s lifting abili- limitations on gesting only eight checkmarks indi- ty, it includes responsibili- an affirmative The ALJ has disability, lack of without cating a total record, particularly, as ty rationale, comment, attention to or evident here, unrepresented. claimant is where the record. To the extent that the the medical case, failed to consider the In this conclusions, judgment upon rests its ALJ’s claimant’s obvious factor of upon substantial evidence. it does not rest that failed to consider relied reason for con- gives The record clear determining claimant’s abili- that factor failed to take Plain- cern that the PRFCA job. previous to a This does ty to return In his June tiffs into account. in- satisfy the burden of conscientious Celaya’s postural limi- 1998 assessment Higbee. stated in quiry as tations, Dr. Clark indicated she John PART, AFFIRMED IN REVERSED crawl, occasionally only should never PART, VACATED, AND REMAND- IN kneel, bend, reach above shoul- squat, ED INSTRUCTIONS. WITH was made sole- der This assessment level. *8 Celaya’s obesity, without ly on the basis of RAWLINSON, Judge, Circuit by-then-controlled of her di-
consideration dissenting. PRFCA, The hypertension. abetes and Celaya apparently at completed when was I respectfully dissent. no limi- weight, recognizes about the same phraseology the Examination of the engage to whatsoever on her tations exposes the tenuous basis majority opinion activities; it also indicates the she in these claimant, majority the gifts the upon which walk for about 6 hours in could stand and disability she never Celaya, with a Carmen maximum cat- workday; hour the eight no indication even claimed. egory gives listed. The form support finding examine the record of der control cannot charge is to Our Schweiker, determine whether sub- proceedings disability. Sample See v. supports ruling (9th Cir.1982) the of the stantial evidence (upholding F.2d the (ALJ). Judge Law See Administrative finding of no ALJ’s where the Barnhart, v. 278 F.3d Thomas stabilized). impairments were (9th Cir.2002). majority opinion The surprisingly, majority Not the cites no strays charge. from that authority case to support premise its that reading majority’s opin- A careful of the non-disabling impairments plus a non- its failure to remain faithful to ion reveals qualifying disability equal eligibility for ma- appellate confines of review. The the benefits. The reason is No obvious. such jority willingness disregard reveals its to authority exists. While the ALJ has an by stating administrative record obligation develop the administrative “asserts, implicitly, at least the claimant required conjure he is not aup obesity.” Majority opinion at 1179. Yet disability where there is none. might, the record as one no asser- search Chater, Sampson In claimant, or obesity by implicit tion of (9th Cir.1996),we reversed a Social Securi- otherwise, majority may be found. The ty disability determination for failure of “[wjith Body also states as a fact that “develop fully the ALJ to record 44, [Celaya] of at over Mass Index least (citations omitted). However, fairly.” of 40 that well exceeded the criterion level Sampson, question there was never re- obese,’ categorize ‘extremely her as garding the nature of the claimant’s as- category used the SSA.” highest impairments: multiple serted sclerosis Majority opinion at 1179. This referenced vision, impaired with chronic lumbar strain Body Mass Index is nowhere reflected hyperuricemia. Id. at 921. There relying the record. Rather than absolutely implication in Sampson case, majority opinion record this duty develop that the ALJ’s the record height Celaya cites to an estimated for undiagnosed im- extended to or stabilized opposed 53" as to a measured of 57". pairments. Majority opinion majority at 1179. The opinion also notes majority predicates The the ALJ’s re- pounds.” fluctuated between “205 and 213 the record sponsibility
Id. This notation is inherent contra- following factoids: majority’s implicit finding diction of the Obesity implicitly 1. “was raised Celaya’s judicially diagnosed “obesity” symptoms[;]” requisite one-year duration to “Celaya’s obesity 2. was at least close disability. constitute See 20 C.F.R. criterion[;]” listing (emphasis (2001). 404.1505, 416.905 added). majority opinion acknowledges status, light Celaya’s pro se “[I]n did not meet the criterion ALJ’s observation of Nevertheless, majority information on the record should that the should have conducted insists to de- have alerted him to the need “multiple impairments analysis.” Majori- velop respect to her ty opinion multiple at 1183. But what added). obesity.” (emphasis presented were *9 1182-1183). (Majority opinion at Celaya’s hypertension in this case? majority require would admittedly control. The diabetes were under Understandably, impairment survey reported symptoms “implic- that is un- ruling, we must affirm. port the ALJ’s that are “at least
itly
disabilities
raised”
Thomas,
criteria,
And the
while remain-
that observation is of assistance distinct
majority because it raises the did not assert obe-
probability for her
sity partial as a basis obesity she was never treated for because ZHENG, Zheng Li aka Chen According diagnosed or obese. Chen, Petitioner, Li Celaya, how majority’s characterization hy- known to assert else would she have as disabilities? pertension and diabetes ASHCROFT, Attorney John obesity as a why
And would she assert General, Respondent. disability if no one ever informed her No. 02-70193. why importantly, she was obese? More obesity impair- explore would the ALJ Appeals, Court of United States Celaya was never treated for ment when Ninth Circuit. diagnosed never as obese and nev- disability? as a er asserted Argued and Submitted Feb. this: The end of the matter is the sub- 18, 2003. Filed June supports stantial evidence finding ALJ’s leap- No amount of inferential disabled. majority change can
ing part presented at the
the state of the evidence of that evidence
hearing. Examination ruling, and the ALJ
supports the ALJ’s manufacture a disabil- obligation
had no If
ity Celaya’s claim. there is to bolster sup- the record to
substantial