*2 NELSON, Before FERGUSON and Cir Judges, JAMESON,* cuit District Judge.
FERGUSON, Circuit Judge. of Health and Human Ser- vices, concluding that Harry Gallant was not disabled within meaning of the So- Act, cial Security denied his claim for So- cial Security disability benefits. 42 U.S.C. § 423. The district court affirmed the Sec- retary’s decision. appeals Gallant to this court and we reverse.
FACTS Harry Gallant was born in and has completed years nine of formal schooling. He years worked an operating as engineer, operating heavy equipment and hauling as a truck driver heavy equipment. Claimant sustained his injury on October falling as a result of four to five piece machinery feet from a while at work. Subsequently, myelogram performed November, 1978, he un- surgery derwent for a herniated disc and was off work for approximately five months. attempted Claimant to continue employment, his former but after three and a half weeks he was forced to terminate problems. because his back Thereafter, claimant was treated Drs. Syrenne Bloemendaal and and was evaluat- ed at the clinic at Harborview Medical Center, Seattle, Washington in September October, 1980. Tests revealed claim- * Jameson, J. designation. Hon. William Senior United States Montana, Judge, sitting by District District of 1979). Substantial evidence means more protrusion disc posterior
ant had
“
surgery
he underwent
a mere
‘It
than
scintilla
evidence.
October
laminectomy, foraminectomy and fu-
means such relevant evidence
a reason
sion.
might
adequate
sup
accept
able mind
” (Richardson
port a conclusion.’
v. Pe
moved
Arizona
thereafter
Claimant
*3
401,
1420,
rales,
389,
402 U.S.
91 S.Ct.
Drs. Lewis and Shetter
by
treated
and was
1427,
(1971) (quoting
Claimant testified he could sit over but that claimant retained engage light 10 minutes or an hour stand over half and aon pain. regular without back He estimated he could basis. pounds. lift between 5 to 10 He takes Although the AU pre- did not indicate day several walks a for about 20 to 25 cisely what required medical evidence each, walking minutes about a block or decision, reports he referred to the of two half, resting and a block and then re- doctors. Frankel estimated claimant
turning home and swims about 8 to 10 prevented engaging would from in his day averaging times a 5 minutes at a time. past work for four to six months after his surgery; The medical evidence submitted at the second back and Dr. Shetter stat- that, hearing April reveals that claimant ed underwent as of “there was no surgery compromise for herniated disc in 1978 evidence of nerve root and or sten- foraminectomy 1980; osis,” laminectomy and and specified surgery that “further that, although report, claimant has recovered was not indicated.” The latter how- capabilities, ever, well in terms reduced motor also noted the evaluation Joseph’s Hospital pain he back remains constant low claimant St. clinic pseudoar- suggested possibility has limited in flexion and exten- been both prompted sion. This constant throsis and referred claimant to Dr. Gins- physicians to berg Although recommend that claimant the AU evaluation. report wear a lower back brace as as a lum- referred Ginsberg well to the of Dr. dat- jacket. reports May 1982, confirming presence bar flexion ed Medical indicate pseudoarthrosis present, pseudoarthrosis requiring indicating possi- claim- non-treating non-examining, report AU found
bility surgery, future not and is possibility physician future should be discounted with the that “even findings objective contradicted surgery, are substantial evidence when there support a conclusion in the record.” Millner record which all other evidence engaging Schweiker, precluded Cir. claimant is activity.” The AU con- 1984). exertional no doubt claimant does “while cluded that physicians who reports of the discomfort,” pain and chronic residual have claimant, sub which were did examine moderate, severe, mild to but such work-related mitted relative to Gallant’s per- prevent does ability, persuasive evidence claim forming work.1 inability disability due to ant’s conclusion, the Contrary to the AU’s gainful activity. any form of engage testimony and claimant’s medical evidence by expert is not bound Although sit, who cannot stand depict án individual disability, opinion on the issue of length of time without any or walk convincing give reasons must clear peri- and who must alternate pain, severe opinion it is rejecting such an where walking standing sitting, ods of Montijo uncontradicted. day. “A throughout course of each Services, Health & Human walk, sit for over stand or man who cannot Schweiker, (9th Cir.1984); Rhodes v. pain does not have one hour without *5 (9th Cir.1981). While the 660 F.2d 723 in the jobs to do most available capacity opinions, he these did mentioned Heckler, economy.” Delgado v. national any rejecting for specific set forth reasons (9th Cir.1983). 574 conclusions. their uncontroverted introduced relative to Gal- The evidence Thus, reports of the non-ex- because to work-related activi- ability perform lant’s by physicians contradicted all amining were although psychiatric no ties indicates that record, the medical other evidence understand, ability disability limits to support to evidence relied on below instructions, carry re- out remember can Secretary’s that Gallant determination daily ability to activities and striction of of engage light sedentary forms customary pressures is respond to work employment does not constitute gainful persistent, to his severe and due severe that claimant has substantial evidence pain. reports unremitting The show of capacity perform the levels residual severely and is malingerer is not a required Secretary’s under the exertion only reports The genuinely disabled. sedentary” “light of work. definition directly support finding of a Gal- which allegations found Gallant’s ALJ light ability engage in and seden- lant’s convincing. disabling pain not of credible or tary of exertion were made two levels determination, the stat making this ALJ never examined claim- physicians who staff testimony, the ed he claimant’s ant, on a considered who based their conclusions but evidence, daily objective “A medical medical evidence. claimant’s review of submitted 404.1567(b) tially can Light of all of these activities. If someone defined in section work is work, Regulations light as Federal do we determine that he or she title 20 of Code of work, also do unless there follows: can limiting fine additional factors such as loss of (b) lifting Light Light work Work. involves inability dexterity long periods or sit of pounds fre- than 20 at a time with more time. lifting weighing quent carrying objects or definition, light above As demonstrated weight pounds. though the up to 10 Even frequent lifting carrying of little, or catego- work involves job may very lifted is in objects weighing up pounds. ten Because walking ry requires good or it deal of when occurring "frequent” means from one-third sitting standing, or it most when involves time, range pulling two-thirds of the the full pushing and the time with some walking up requires standing capa- or leg To be arm or controls. considered Unempl. workday. range SSR 83-10 of the performing or two-thirds ble of full wide Matters) 14,531. (New (CCH) work, Ins.Rep. you ¶ have to do substan- must activities and claimant’s demeanor at the group therapy session for an hour he had hearing. disregard While the AU can to stand and walk about. self-serving statements, claimant’s do so this, significant On and other less medi- they unsupported by objective must be evidence, cal the AU concluded that Gal- findings. Heckler, Maounis 738 F.2d inability lant’s claim unper- to work was (9th Cir.1984). Additionally, unsupported suasive and by substantial evi- accepted this circuit validity “the of the However, every dence. report proposition subjective symptoms forming the basis of this record notes Gal- significant weighed are a factor to be complaints persistent pain. lant’s back determining whether there exists ‘dis Further, replete objective the record is with ability’ as defined in the Act.” Mark v. findings clinical which and confirm Celebrezze, Cir. allegations of severe and chronic 1965). pain. positive There was no evidence that AU, discrediting Gallant’s com- claimant was not suffering much plaints pain, referred to the fact Gallant witness, he claimed to qualified suffer. No currently taking pain was not medication otherwise, expert expressed opinion and had taken only medication inter- any way that claimant was in malingering. mittently in the past. The AU failed to however, note, one Dr. Sanders on part The AU in rejection based his August specifically recommended objective medical evidence and the (claim- claimant continue on no medication subjective complaints of con- November, Empirin ant took from 1978 to stant on Gallant’s demeanor at the stopped effects). but due to its side hearing, noting that he sat over an hour prescribed Muscle relaxants were apparent any without distress. The fact patient Joseph’s claimant was at St. Hos- that a physical claimant does not exhibit pital, which taking claimant has been twice of prolonged pain manifestations a day since that time. The AU also found hearing little, provides any, if support for *6 testimony that claimant’s regarding his dai- the AU’s ultimate conclusion that the ly activities was consistent with a claimant is not or allega- disabled that his exertion, noting level that claimant pain tions of constant are not credible. long time, periods reads for watches Day Weinberger, v. 522 F.2d 1156-57 testimony, television and socializes. In his Cir.1975). (9th No clear convincing claimant indicated he laying reads while provided by reasons were the AU down on the couch and that he could rejection of the testimony Gallant re- program watch a beginning television garding his constant persistent back to position, lay end a seated but must pain. up against down or lean a counter with his apart. legs The AU’s decision as to whether judge Both the AU and the upheld district claimant is disabled if must it placed emphasis during on the fact that is based on substantial evidence. But in in-patient stay at the clinic determining whether is there substantial Joseph’s Hospital repeatedly at St. de- support evidence to the finding, AU’s occupational participation clined in the ther- reviewing court must consider both evi apy program. Our review of the evidence supports, that dence and evidence that de indicates that claimant did attend the from, tracts the examiner’s conclusion. occupational therapy sessions but did come “We cannot affirm the examiner’s conclu therapy into the area and socialize simply by isolating specific sion quantum however, He sit there. could not for more of supporting Day evidence.” v. Wein time, few than a minutes at a and was in 522 F.2d berger, at 1156. engaged even when in conversation. Here, subjective there were why both When asked he was not involved supporting occupational objective clinical therapy, claimant stated he evidence sit attending pain, was unable to and that after a of rejected but the AU nevertheless way insure power appropriate value. The most to Although it is within the both. findings concerning question validity hypothetical the make the of the weigh and to credibility of a witness expert the posed the vocational is to base it Schweiker, evidence, conflicting Rhodes v. record, appearing the upon evidence Cir.1981), (9th he cannot 660 F.2d disputed proce- not. That whether it is first, attempt and then reach a conclusion in this Rath- dure was not followed ease. competent by ignoring evidence justify it er, claim- expert the was asked to assume opposite suggests an that record capabilities physical ant’s conformed Schweiker, 695 F.2d Whitney result. perform with the those one the Cir.1982). (7th categories work. whole, it is Viewing record is to ade- Unless there record evidence examined claim who clear that all doctors assumption, opin- support quately this is condition ant that claimant’s concur expert expressed ion the vocational Although for him. source of constant expert meaningless. Here the vocational persistent, testimony of his disa consider either Gal- was not instructed to by the medical bling pain is corroborated lant’s constant or his need to alternate treating physicians, the reports of eleven sitting periods standing. When strong evidence favor rejected AU cross-examined, expert the vocational ad- i.e., report of insubstantial evidence— mitted if in fact suffered non-examining physician, non-treating, constant, pre- pain, severe it would AU’s own observance combined with activity. from all clude him Because hearing. demeanor of claimant’s hypothetical neither nor answer Therefore, finding that Gallant’s AU’s impair- properly set forth all of Gallant’s preclude pain do not allegations of severe ments, expert’s testimony the vocational supported activity is not gainful cannot constitute substantial evidence to by substantial evidence. support findings. the AU’s of the ex testimony vocational constitute substan pert this case cannot b. Guidelines Medical-Vocational findings. AU’s tial evidence asserts Gallant also in a disabil expert’s testimony A vocational Appendix of the improperly applied only “is ity proceeding valuable benefits guidelines in this case. medical-vocational supported by it extent Although claimants have the burden of Schweiker, Sample evidence.” disability, they proving once show that Cir.1982). hypotheti 643-44 prevents doing impairment their them from expert question asked of the vocational cal *7 job, going previous as their the burden of specifically in excluded a this case capabili exertional to Gallant’s the to the limitation forward with evidence shifts allegations per of Schweiker, ties. Because Secretary. Thompson v. 665 disabling pain supported the sistent 936, (9th Cir.1982). Secretary The F.2d 939 case the in this and AU medical evidence can do less de must show claimants convincing or reasons re had clear work, given manding gainful substantial claims, jecting should such education, experience. work age, their and question part the have formed a of AU’s burden, Secretary may To the meet question hypothetical expert. to the “[A] rely guidelines in the medical-vocational impair all the claimant’s should out of ‘set pt. 20 C.F.R. 404 certain circumstances. ” Baugus Secretary ments.’ Health of P, app. subpart Camp Heckler v. See 443, (8th Services, 447 717 & Human 458, bell, 103 S.Ct. 76 461 U.S. Schweiker, Cir.1983) O’Leary v. quoting (1983). L.Ed.2d 66 Cir.1983). 1334, (8th If the 710 F.2d 1343 guidelines only describe “ma hypothetical are not assumptions the patterns,” and jor functional vocational record, of opinion supported by § P, pt. subpart app. 200.- C.F.R. a expert claimant has resid vocational 00(a), guide- if the medical-vocational working capacity evidentiary has no ual accurately to engage light lines “fail describe claim- able to sedentary limitations, particular Secretary ant’s forms of gainful employment. may rely them not alone to show the CONCLUSION
availability jobs of that claimant.” Heckler, Stone v. 722 F.2d Secretary did not meet her burden of Cir.1983). The found that Gallant had proving capable that claimant was per- of capacity perform the residual functional forming light sedentary forms of gain- light sedentary applied work Medi- employment ful and the decision of the cal-vocational Rule 202.19 and Rule 202.17 AU is reversed. This court finds the which the AU concluded a find- mandated AU’s characterization claimant’s residu- ing pt. “not disabled.” 20 C.F.R. capacity capable al as and seden- §§ P, 202.17, subpart app. 202.19. How- tary unsupported by substantial evi- ever, persistent based on claimant’s back dence. pain, prevents prolonged which him from Because we find substantial evidence in (not periods sitting over 10 minutes the record supporting as whole that Gal- (not pain), standing an without over half lant is meaning disabled within the of the hour), and necessitates that he alternate Act, we need remand the case to the periods sitting, walking, standing, and AU for proceedings. Therefore, further argues capabilities his exertional judgment we reverse the of the district ranges fall between of work therefore court and remand with instructions that a applied Appendix improperly in this judgment be awarding entered disability case. benefits the claimant. provide adjudicative guidance To REVERSED. a claimant’s when limitations do not meet a capacity, defined exertional JAMESON, Judge (dissenting): District “Program Policy issued a Statement.” respectfully I and reluctantly dissent. (CCH) (New 83-12 Unempl.Ins.Rep. SSR Clearly there is evidence to a find- 14,533 Matters) (1983). H Under the head ing disability, my of total but review Situations,” ing “Special the statement dis as I record a whole conclude that impact finding cusses the of a sup- there is also substantial evidence to periods sitting claimant must alternate port finding of the administrative law standing. Such a claimant is defined (AU) judge capable that Gallant is of do- functionally doing capable either ing light work. prolonged sitting contemplated scope Our of review is well summarized definition of pro work or the Schweiker, Sample longed standing contemplated or walking (9th Cir.1982): most work. occupa Because the reduced, greatly record, sole inquiry tional base the AU is Our whether the whole, expert directed consult a vocational read yields such evidence as Although such cases. the AU in this accept case would allow reasonable mind correctly testimony himself did avail conclusions reached the law expert, still judge____ vocational erred susceptible Where evidence is *8 applying Appendix 2 to Gallant’s ease be one interpretation, more than rational cause, above, discussed the it as vocational is the AU’s conclusion which must be expert upheld---- reaching was not instructed to consider this findings, his the (i.e., impairment that judge additional claimant law is entitled to draw inferences sitting periods logically flowing (Ci- must alternate and stand from the evidence. pain omitted). ing) nor the constant low back tations The AU need sub- Therefore, the testimony by judgment expert claimant. the the stitute witnesses § expert in 404.1526-27; vocational this case did not consti for his own. C.F.R. 1154, to cf. sup Day Weinberger, tute substantial evidence sufficient v. port finding (9th Cir.1975) (reason rejection the AU’s that Gallant was had a testimony reported Bloemendaal claimant where such be offered must here,
uncontroverted). impairment no rating. Where as There were 10% inconclusive, “questions of are reports findings his objective to account for of conflicts credibility resolution complaints.” On November "continued solely of the testimony functions are the 1980, claimant Dr. Frankel described Gardner, 452 Secretary.” Waters being Feb- “in no acute distress.” On as Cir.1971); (9th see also 858 n. 7 18, 1982, Ginsburg Dr. ruary described Bailar, 626 F.2d Calhoun alert, ori- developed, claimant as a “well Cir.1980). year old in no acute dis- ented male findings that recognized his The AU gait normal and Claimant’s was tress.” fact suffered from con- if claimant in the Thom- was able to heel-toe walk. Dr. he severe, he stant, excruciating pain, would reported February that his as activity. After precluded all work from be physical examination showed claimant testimo- analyzing in some detail Gallant’s “in distress.” Evaluation was no acute reports of hearing and ny the various at pain Joseph’s by the team at St. revealed exhibits, received as doctors eleven compro- was of root there no evidence as AU, weighing the evidence only therapeutic mise. The intervention part: pain,” “level of said im- strengthening exercises and an cur- that he does not Claimant testified jacket. Claimant testified mobilization medication, and the rently take jacket wearing he that has discontinued has also shows he medical evidence support. testing results or other MMPI only on an inter- taken medication have been shown be consistent with testimony of mittent basis. Claimant’s propensity secondary gains. Claim- daily activities consistent with his no as an who can ant viewed individual His level of exertion. work, longer perform prior his and at fully in that concentrate is demonstrated point enter a this inclination to long periods of enjoys reading for he Consequently, field he new of endeavor. time, television, socializing. watching as disabled. Under views himself Joseph’s from show Hospital records St. Act, although may Security he be Social en- very claimant was social and work, past performing his disabled from patients dur- joyed company of other objective must also show evidence stay in-patient hospital. at the ing his including laboratory clinical and Shetter, find- January in his 1982 re- Dr. impairment se- ings that he has an so port, noted vocational rehabilitation perform- to preclude vere as him (claim- his counseling part be “should lighter ing nature alternative ant’s) program it overall treatment since past place younger than his work. To highly unlikely that he will be able seems as on the disabil- heavy individual such claimant previous job as a return During in-pa- life ity rolls for the rest of his based equipment operator.” clinic, hospital stay objective tient record evidence repeatedly participation declined claimant to him and the be a disservice would occupational program. At therapy having credibility system. After hearing claimant was observed surgeries, no doubt claimant two back undersigned sit over to be able have chronic and dis- does residual any apparent distress. an hour without comfort; however, pain is such found repeatedly treating physicians have general- of a mild to moderate nature during physical exam- claimant described prevent does ly and such distress, being apparent in no ination performing light work. distress, distress, no acute etc. mild added). (Emphasis 18, 1979 reported on June Bloemendaal reviewing entire “carefully After ap- that claimant and December *9 records,” concluded “that the district court peared in no walked with discomfort and 19, 1980, Dr. evidence gait. there May a normal On AU’s conclusion that capable Gallant is cluded that “hysterical per- Gallant had a agree. work activity.” I sonality.” Throughout the record there is evidence Although responded Gallant hot that Gallant’s out claims of were of packs, high voltage stimulation, ultrasound any proportion organic patholo- observed treatments, massage 23, on October gy. He frequently was described exam- again 1980 he surgery. underwent Dr. ining physicians person in as a “no acute Parker, orthopedist, Jeff an examined Gal- malingerer, psy- distress.” not a While 13, lant November 1980. He concluded chological tests indicated that was Gallant doing that Gallant quite was well and was preoccupied prone with and could be “independent in all motions.” Gallant was unconsciously trigger or his exacerbate also able to any heel toe walk without symptomatology. cooperation in His rec- difficulty. February On 1981 Dr. Victor generally ommended treatment atwas best Frankel, professor H. orthopedic a sur- sporadic. In addition to the re- medical gery at University of Washington Hos- ports specified portion in the of the AU’s reported pital, Gallant’s condition after above, quoted other in- reports decision surgery. October He indicated following: clude the that Gallant be completely would disabled Syrenne, neurological Dr. H. Gaston for from to six following four months surgeon, January examined Gallant surgery and that it be would difficult for His examination revealed Gal- 1980. that again Gallant to heavy equip- ever drive experienced limping lant no and that his ment or trucks long drive distances. power legs motor and tone in was both July 28, On 1981 Dr. A.P. Manolio made Syrenne normal. Dr. concluded that “there physical capacities evaluation from any no evidence recurrent herniated records, examining without Gal- “myelogram pretty disc” looks opinion lant. In his Gallant could stand as range.” within normal He well also found well as walk for five hours and he could sit sign reviewing After arachnoiditis. eight Also, Bloemendaal, from six to Syrenne’s report, Dr. hours. Gallant an orthopedic specialist, carry concluded fur- pounds frequently could lift and five surgery was not ther warranted. Because pounds occasionally. and ten Dr. Lester B. complaints Gallant’s “continued without Weisenberg physical capaci- made another any objective findings,” Dr. Bloemendaal ties evaluation the medical records on recommended that Gallant be evaluated report November 1981. His indicated clinic. steps that Gallant could climb but not lad- Orthopedic opinion Gallant treated In was at ders. Gallant could stand University Washington Clinic at six well walk for hours and could sit for Hospital September 1980 until Oc- eight hours. He concluded that Gallant 3,1980. The *10 a result of conver- lant’s condition worsened on an unconscious symptomatology application Pain indi- Scripps may Index he a new surgery, sion basis.” this file preoccupied was with cated that Gallant alleging period later dis- a benefits Dr. concluded that Gallant pain. Collier ability. self-preoccupied “depressed, angry, was I that the administrative law conclude acting out.” capacity a and [had] capable judge’s finding that Gallant was psychiatrist, a Thomas Dr. Thomas N. supported by work is February examined Gallant also I affirm the evidence. would Thomas hospitalized. Dr. he was judgment the district court. developed, a “well described Gallant im- His acute distress.” male white “chronic suffered
pression was that Gallant underlying depres- syndrome with report May subsequent on In a sion.” “per-
1982, however, found Gallant he unremitting “not
sistent, pain,” severe and “severely genuinely malingerer,” and America, STATES of UNITED dated June a letter disabled.” Plaintiff-Appellee, statements explained Dr. Thomas severity of Gallant’s back to the related any psychiatric impair- problem DAVENPORT, Leonard John ment. Defendant-Appellant. Ginsburg examined Gallant Dr. Howard No. 82-1748. February, He also stated that 1982. developed in “no was well Gallant Appeals, United States Court Ginsburg concluded distress.” Dr. acute Ninth Circuit. jack- given that Gallant had not he took it on and proper trial in that et a Argued and Submitted Jan. 1984. regular program off. He recommended Decided Jan. for 8 to 10 hours wearing jacket 28, 1985. Rehearing Denied Feb. exercises, day, thoracic extention In a letter dated mild muscle relaxant. Ginsburg stated that
May
3,May 1982 he found Gallant’s back received increasing; had
had been jacket and the some relief from removed; that jacket is
recurred when the “exploration undergo an would
Gallant pseudarthro-
repair of lumbrosacral ” sis; through surgical repair this and that immobilization, likeli- “prolonged good.” result
hood of successful hearing the administra- After the before September Gal- judge, law
tive operation. con- His
lant underwent a third con- operation was not
dition after this argued before by the Gallant
sidered AU. court con- district that the should court respect surgery. evidence
sider with properly concluded
The district court it having considered been disability period not material to the if Gal- question. The court noted that notes tober clinic indicate that carry pounds lift ten frequently could “in Gallant was mild distress.” The Minne- twenty pounds occasionally. Personality Inventory Multi-Phasic sota Upon the recommendation Dr. Andrew (MMPI) very indicated Gallant had “a Shetter, neurosurgeon, inpatient treat- large vague, number diffuse chronic so- pain program Joseph’s ment St. complaints” likely matic which were to in- Hospital, hospitalized from Gallant was response patients crease to stress. February Throughout March 6 to profiles typical- with like Gallant’s “there is period occupa- Gallant did not attend correspondence aly reports low between therapy; tional nor did he in- otherwise organic pathology.” and demonstrable in the program. volve himself Dr. Herbert report suggested may that Gallant re- Collier, psychologist, L. evaluated Gallant secondary gain ceive “substantial from his hospital. The MMPI complaints.” A symptoms or refusal profile de- indicated that Gallant was comply with treatment would consistent have profile. examining psy- pressed capacity Gallant’s with “seem[ed] Carlin, chologists, unconsciously trigger con- Drs. Prosser and/or exacerbate