Pamela KEYSER, Plaintiff-Appellant, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
No. 10-35371
United States Court of Appeals, Ninth Circuit
Filed June 1, 2011.
648 F.3d 721
Submitted March 9, 2011.*
For the reasons discussed above, we hold that
B
The district court held that even if it could review the NIJ‘s decision, it would be compelled to dismiss Pinnacle‘s APA claims on the merits because “Pinnacle ma[de] no attempt to demonstrate that the NIJ acted arbitrarily and capriciously.” But Pinnacle is not required to “demonstrate” anything in order to survive a
We turn to Pinnacle‘s complaint to see if it alleges sufficient facts to state a claim for relief under the APA. We conclude that it does. The complaint alleges that the methods the NIJ uses to test body armor bear no relation to the standard set out in the Requirements—namely, that the armor will maintain its ballistic integrity over the life of the warranty. Pinnacle further alleges that the NIJ itself has admitted this. Finally, Pinnacle alleges that the NIJ violated the APA by failing to provide the data upon which revocation of the Notice of Compliance was based. We cannot comment knowledgeably on any of these claims, except to state that, based on Pinnacle‘s allegations, it is entitled to proceed past a motion to dismiss. Although the district court may decide, upon full consideration of the administrative record, that these claims would not survive a
VI
For the foregoing reasons, we conclude that the district court properly dismissed Pinnacle‘s due process claim because the NIJ afforded adequate process to Pinnacle. Regarding Pinnacle‘s claims under the APA, we hold that the district erred in both concluding that the NIJ‘s decision was not reviewable and in dismissing the claims on the merits.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Dwight C. Holton, United States Attorney, Adrian L. Brown, Assistant United States Attorney; David Morado, Regional Chief Counsel; Benjamin J. Groebner, Assistant Regional Counsel, Seattle, WA, for the appellee.
Before: D.W. NELSON, SIDNEY R. THOMAS, and SUSAN P. GRABER, Circuit Judges.
Opinion by Judge THOMAS; Dissent by Judge GRABER.
OPINION
THOMAS, Circuit Judge:
Pamela Keyser appeals the district court‘s decision affirming the Commissioner of Social Security‘s denial of her applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act. We have jurisdiction under
I
Pamela Keyser applied for disability benefits based on combined impairments including bullous emphysema, depression, anxiety, and bipolar disorder. Keyser alleges that her disability began when her right lung collapsed. Her lung was surgically repaired and she was discharged eight days later. Keyser was advised that the chance of either her right lung collapsing again, or her left lung collapsing for the first time, was as high as thirty percent. Two of Keyser‘s treating physicians, Dr. Marc Jacobs and Dr. Stephen Knapp, reported that Keyser was unable to work because of her severe emphysema and potential for another collapsed lung. In addition to these physical ailments, Drs. Jacobs and Knapp reported that Keyser suffered from severe depression and generalized anxiety disorder, which also impacted her ability to work. Dr. Knapp referred Keyser to a psychiatrist, Dr. Monteverdi, who diagnosed Keyser with bipolar disorder, and paranoid and schizotypal personality traits. Dr. Monteverdi assessed Keyser‘s Global Assessment of Functioning1 at 55 to 65 and completed a medical source statement indicating that Keyser had moderate limitations in a variety of areas.
A year after the onset of the disability, Dr. Lahman conducted an agency review of Keyser‘s psychiatric condition and reported his findings on a Psychiatric Review Technique Form. He noted that Keyser had medically determinable impairments of depression and anxiety, but concluded that the degree of limitation in three functional areas (restriction of activities of daily living, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence,
During a hearing before an administrative law judge (“ALJ“), Keyser reported shortness of breath while working, which required her to sit or take breaks every half hour, and to nap two or three times daily for around one hour. She also testified that she has anxiety and paranoia, and a fear of collapsing another lung if she over-exerts herself. However, Keyser admitted that she sings in a rock-and-roll band approximately three times a week. Keyser‘s husband also testified at the hearing, confirming that her depression and bipolar disorder had worsened after her lung collapsed. He further testified that she needed to lie down ninety percent of the day because she was so easily fatigued.
The ALJ asked a vocational expert (“VE“) who testified at Keyser‘s hearing to assume that a hypothetical worker could lift twenty-pound items occasionally and ten-pound items frequently, that she could stand or walk no more than six hours in an eight-hour workday, and that she needed to avoid exposure to fumes, odors, dusts, gases, and otherwise poor ventilation. Based on these limitations, the VE testified that this hypothetical worker could not maintain Keyser‘s prior work as a grocery store cashier, because that would require her to remain on her feet for the majority of the day, but that she could work as a different kind of cashier, classified as Cashier I or II. Although a Cashier I position is classified as a semi-skilled job, the VE explained that a Cashier II position involves only unskilled, simple, and routine work. The VE then noted that there were 1.2 million cashier jobs in the national economy, with 43,000 positions in the state of Oregon. The VE further limited the state-specific number to 12,696 positions to account for Keyser‘s need to be sitting.
The ALJ issued a written decision denying Keyser disability benefits. The ALJ determined that Keyser‘s emphysema was a severe impairment. However, the ALJ noted that “while the claimant‘s bipolar disorder is a medically determinable impairment, it is not severe. Such was the conclusion of the state agency medical consultant, Frank Lahman, PhD. . . . as found in the psychiatric review technique form.” The ALJ then determined that Keyser did not meet or equal any of the listed respiratory impairments. Finally, the ALJ reviewed the record, including the opinions of Drs. Jacobs, Knapp, and Monteverdi, and the lay testimony of Keyser and Keyser‘s husband. The ALJ concluded that although Keyser could not perform any of her prior work, she could perform work as a Cashier II and that a significant number of Cashier II positions exist in the national economy.
The Appeals Council declined to review the ALJ‘s disability determination. Keyser appealed to the United States District Court for the District of Oregon, which affirmed the ALJ‘s denial of disability. Keyser now appeals.
II
Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act. See
In this case, the ALJ erred in steps two and three by failing to follow the procedures proscribed in
In step two of the disability determination, an ALJ must determine whether the claimant has a medically severe impairment or combination of impairments. In making this determination, an ALJ is bound by
At the first two levels of review, this technique is documented in a Psychiatric Review Technique Form (“PRTF“).
The question, then, is what consequences attach in failing to append the PRTF or incorporate its findings in the written ALJ decision. We previously analyzed this question under the predecessor regulation, and concluded it was reversible error. In Gutierrez v. Apfel, we held that the failure of the ALJ to complete and append the PRTF, as required at the time, required reversal of the district court‘s decision upholding the ALJ‘s denial of benefits. Gutierrez v. Apfel, 199 F.3d 1048, 1050 (9th Cir.2000), superseded by regulation as stated in Blackmon v. Astrue, 719 F.Supp.2d 80, 92 (D.D.C.2010). When we decided Gutierrez, the ALJ was required to both make the specific findings, and attach the PRTF to the written decision. See
Our sister circuits agree. See Stambaugh v. Sullivan, 929 F.2d 292, 296 (7th Cir.1991), superseded by regulation as stated in Burke v. Astrue, 306 Fed.Appx. 312 (7th Cir.2009) (ALJ‘s failure to evaluate claimant‘s alleged mental disorder or to document the procedure on a PRTF required reversal); Hill v. Sullivan, 924 F.2d 972, 975 (10th Cir.1991) (same); Montgomery v. Shalala, 30 F.3d 98, 99-100 (8th Cir.1994) (reversing and remanding because ALJ purported to evaluate mental disorder, but failed to do so in accordance with psychiatric review technique). As the Eleventh Circuit summarized in Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir.2005):
We thus join our sister circuits in holding that where a claimant has presented a colorable claim of mental impairment, the social security regulations require the ALJ to complete a PRTF and append it to the decision, or incorporate its mode of analysis into his findings and conclusions. Failure to do so requires remand.
In this case, the written decision did not document the ALJ‘s application of the technique and did not include a specific finding as to the degree of limitation in any of the four functional areas. The decision simply referenced and adopted the PRTF completed earlier by Dr. Lahman. Under Gutierrez, this is insufficient to meet the requirements of
Hoopai v. Astrue, 499 F.3d 1071, 1077-78 (9th Cir.2007), is not to the contrary. In Hoopai, the ALJ did in fact make an explicit finding as to each of the four functional areas as required under
III
An ALJ‘s failure to comply with
The ALJ also erred at step three because he failed to consider whether Keyser‘s mental impairment met or equaled a listed impairment. See
IV
In summary, we hold that the ALJ erred by failing to follow the requirements of
REVERSED AND REMANDED WITH INSTRUCTIONS.
GRABER, Circuit Judge, dissenting:
I respectfully dissent because I find no error in the ALJ‘s decision. And, even assuming that the ALJ erred when he did not explicitly state his findings in each of the four functional areas prescribed by
The ALJ considered Keyser‘s mental problems and concluded that they did not add up to a severe impairment. “Such was the conclusion of the state agency medical consultant,” the ALJ explained, “as found in the psychiatric review technique form” (“PRTF“). Although Keyser sought the help of Dr. Monteverdi only after the medical consultant‘s review, nothing in Dr. Monteverdi‘s reports caused the ALJ to question the earlier determination made by the consultant. To the contrary, the ALJ observed, “Dr. Monteverdi reported that, during the few times he treated [Keyser], she had responded well to medication.”1 The ALJ also observed that Keyser had worked successfully for years under the primary diagnosis that Monteverdi gave her. For those reasons, all of which the record supports, the ALJ determined that Keyser had no severe mental impairment.
Despite the substantial evidence underlying the ALJ‘s determination, the majority faults him for failing “to complete a PRTF and append it to [his] decision, or to incorporate its mode of analysis into [his] findings and conclusions.” Maj. op. at 726.
In reaching the opposite conclusion, the majority relies too much on Gutierrez v. Apfel, 199 F.3d 1048 (9th Cir.2000), and similar cases. As the majority acknowledges, the rules have changed since Gutierrez. Maj. op. at 725. The agency amended
The ALJ followed the amended rule. His written decision provided precisely what the agency had in mind. He explained his conclusion with respect to the severity of Keyser‘s mental impairment and he supported that conclusion with a narrative rationale. Requiring the ALJ to go back and include the PRTF‘s checklist of conclusions, either by amending his written decision or by attaching a newly completed PRTF, restores the redundancy that the agency sought to eliminate. The majority nevertheless remands this nearly six-year-old case for just that empty exercise.
Even if it were error not to give more attention to the findings in the PRTF in the written decision, that error is harmless here. We have recognized that an error “inconsequential to the ultimate nondisability determination” is harmless. Stout v. Comm‘r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.2006); see also Carmickle v. Comm‘r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.2008) (refusing to disturb an ALJ‘s decision, regardless of error, “[s]o long as there remains ‘substantial evidence supporting the ALJ‘s conclusions’ . . . and the error ‘does not negate the validity of the ALJ‘s ultimate . . . conclusion‘” (quoting Batson v. Comm‘r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.2004))). Applying the harmlessness analysis here, it is clear to me that the ALJ‘s failure to fill out the PRTF was inconsequential. There remains substantial evidence to support the ALJ‘s conclusion that Keyser had no severe mental impairment. The absence of a PRTF, which undoubtedly would repeat the same findings made by the agency‘s consultant, does not negate the validity of the ALJ‘s decision.
Here, by contrast, Keyser‘s lung condition formed the central basis for her claim. Only after her lung collapsed could she no longer work. As mentioned earlier, Keyser worked for years with bipolar disorder and, although she developed anxiety and depression after her lung collapsed, those problems consistently improved after Dr. Monteverdi gave her a new medication. The record firmly supports the ALJ‘s determination that Keyser had no severe mental impairment. Any procedural error in making that determination was harmless.