100 F.3d 1462 | 9th Cir. | 1996
Lead Opinion
Claimant, Kim Van Nguyen, appeals from a denial of Social Security Disability benefits and Social Security Income benefits. While he has a history of numerous medical problems, including the effects of having been shot in both legs by the Communists in 1970 when he was a soldier in the South Vietnamese army,
1.
Claimant contends that the ALJ erred by not crediting the conclusion of the examining psychologist, Dr. Brown, who determined that claimant met listing 12.04 for affective disorders. 20 CFR Pt. 404, Subpt. P., App 1, 12.04. The ALJ did not explicitly reject the opinion of Dr. Brown; he did, however, rely on the opinion of Dr. Walter, the non-examining psychologist called by the Commissioner. In Dr. Walter’s opinion, claimant did not meet the listing 12.04. We hold that the ALJ erred because he neither explicitly rejected the opinion of Dr. Brown, nor set forth specific, legitimate reasons for crediting Dr. Walter over Dr. Brown. E.g., Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995); see also Lester v. Chater, 81 F.3d 821, 831 (9th Cir.1995) (as amended) (“The opinion of an examining doctor, even if contradicted by the opinion of another [nonexaming] doctor, can only be rejected for specific and legitimate reasons that are supported by the record.”).
While the ALJ made a number of comments in his report that might appear to be a basis for questioning Dr. Brown’s conclusions, even if we were to read these observations in that manner, they would not constitute “specific, legitimate reasons” for rejecting Dr. Brown’s opinion or crediting Dr. Walter’s opinion over that of Dr. Brown. For example, the ALJ noted that the opinions in Dr. Brown’s supplemental report “were not derived from a test or examination environment, or from the previous findings of various medical reports of record.” Contrary to the ALJ’s statement, Dr. Brown stated that his supplemental report was based, in part, on a review of his 1991 assessment of claimant, which was based on an examination of claimant and the administration of a battery of tests. In addition, since the only other medical opinion available on mental impairment, that of Dr. Walter, is based solely on a review of medical records, primarily those of Dr. Brown, and very cursory questioning of claimant at the hearing, the ALJ’s stated reason would not constitute a legitimate basis for favoring Dr. Walter’s opinion over Dr. Brown’s.
The ALJ also stated that Dr. Walter had pointed out that “the evidence was devoid of any findings or complaints relative to a mental disorder of the claimant during the period of May 1988 until November 18,1991, when the claimant was examined by a psychologist, R. Wayne Brown, Ph.D.,
In this case, none of the factors are present that would allow the ALJ to consider the source of the referral of Dr. Brown’s patient in assessing the doctor’s credibility. Dr. Brown’s thorough report is based on an examination, a battery of tests, and review of the claimant’s hearing testimony. His is not a mere “unsupported opinion.” Id. Nor is there any evidence of any “actual improprieties,” Lester, 81 F.3d at 832, on Dr. Brown’s part, such as! an inconsistency between his treating notes Vid the report he submitted to the ALJ or evidence that he was deliberately attempting to mislead the ALJ for the purpose of helping claimant obtain benefits. See Saelee, 94 F.3d at 523. Teethe contrary, Dr. Brown repeatedly set forth both the evidence that supported his conclusions and that which undermined them. That does not mean that Dr. Brown was correct or that his report must prevail, but it does mean that Dr. Brown’s credibility is not subject to attack on the basis of the source of his patient’s referral.
Second, it is common knowledge that depression is one of the most underreported illnesses in the country because those afflicted often do not recognize that their condition reflects a potentially serious mental illness. See, e.g., Warren E. Leavy, Hidden Depression, Chi. Trib., Feb. 1,1996 at 7 (noting that nearly 17 million adult Americans suffer from depression in a given year and that two-thirds of them do not get treatment). Thus, the fact that claimant may be one of millions of people who did not seek treatment for a mental disorder until late in the day is not a substantial basis on which to conclude that Dr. Brown’s assessment of claimant’s condition is inaccurate. As the'Sixth Circuit has noted in finding invalid an ALJ’s reasons for rejecting claimant’s assertions about his depression, ‘[a'Jppellant may have failed to seek psychiatric treatment for his mental condition, but it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.’ Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir.1989).
The government contends that the ALJ legitimately discounted Dr. Brown’s report because it is inconsistent with claimant’s own testimony. We disagree. Where the purported existence of an inconsistency is squarely contradicted by the record, it may not serve as the basis for the rejection of an examining physician’s conclusions. The ALJ stated that Dr. Brown
indicated that claimant had testified that he never travelled outside or played with his children and that he sits in a chair most of the day. However, the record contains facts to the contrary to the claimant’s testimony as he has indicated during the previous examinations that he was able to watch television for several hours a day, play with his children, and attend church on a weekly basis. He drove an automobile.
An examination of Dr. Brown’s reports demonstrates that only by quoting an isolated sentence and mischaraeterizing his statements can one create any apparent inconsistency between the report and claimant’s testimony. However, even that appearance is dissipated by a plain reading of the record. Dr. Brown stated:
Testimony that argues for his having a loss of interest in his life is that- he sits in a chair most of the day and does not go outside, or go outdoors and play with his children_ Mr. Nguyen related that he had no interest or hobbies or other activities outside of his home, and that his free time is spent caring for his children, watching T.V. and attending church on a regular basis. These activities that show some degree of interest as related by his wife’s testimony are that they go to church once a week by means of Mr. Nguyen driving; he .sometimes drives her to a shopping destination while he remains in the automobile, and by his testimony he sits around the house and plays with his children.
*1466 In this examiner’s opinion, this represents a marked loss of interest for a male his age.
It is clear that Dr. Brown did not misstate claimant’s testimony or rely on testimony by claimant that contradicted his other testimony. Contrary to the ALJ’s statement, Dr. Brown acknowledged that claimant played with his children; he stated only that he did not play with them outside. This statement is consistent with the testimony of both claimant and his wife. Also, the only reasonable reading of Dr. Brown’s report is not that claimant never physically sets foot outside the house. He clearly acknowledges that claimant does go to church once a week, and occasionally drives his wife to the store, although he does not get out of the car to accompany her. The only logical and reasonable reading of the report is that Dr. Brown notes that claimant rarely leaves his house except in the instances noted. In addition, the “inconsistency” that the ALJ creates between Dr. Brown’s statement that claimant sits in his chair most of the day, and the fact that claimant stated that he watches television several hours a day is also wholly illusory. One sentence after Dr. Brown stated that claimant sits in a chair most of the day, he reported that claimant watches a lot of television. Most people who watch television do so sitting in a chair. There is simply no basis in fact for the ALJ’s conclusion that Dr. Brown’s report was inconsistent with the record.
In order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record. The ALJ failed to do so here. E.g., Lester, 81 F.3d at 831.
II.
The ALJ determined that claimant’s asthma in combination with his leg injuries did not preclude him from doing sedentary work in a clean room as a paekager/assembler. He did so apparently on the basis of the medical examiner’s report that claimant’s asthma is mild. He also determined, apparently based on evidence from Dr. De Los Santos, the medical examiner and Dr. Dick-stein, that although the claimant experiences occasional discomfort and shortness of breath, his “symptoms are managed on a daily basis with medications including inhalant and that by avoidance of working in areas in which he would be exposed to noxious or irritating fumes, the claimant could avoid exacerbation of his mild pulmonary condition.” The ALJ also relied on the testimony of the vocational expert that claimant could work as a packager or assembler in a clean room environment.
The ALJ included neither claimant nor his wife’s descriptions of his serious coughing problems in the hypothetical to the vocational expert, nor did he expressly state that he would discount their testimony or give any reasons therefore. By failing to include in the hypothetical the physical manifestations that were described by the witnesses or expressly rejecting the testimony for legitimate reasons, the ALJ erred. Lay testimony as to á claimant’s symptoms is competent evidence which the Secretary must take into account, Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993), unless he expressly determines to disregard such testimony, in which case “he must give reasons that are germane to each witness.” Id. The government contends, relying on Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984), that it was not error for the ALJ to disregard the lay testimony without giving specific reasons for doing so. It asserts that the ALJ need not discuss “lay witness testimony that conflict[s] with the available medical evidence.” The reliance on Vincent is misplaced. In that case, lay witnesses were making medical diagnoses, e.g., that the claimant had a serious mental impairment as a result of a stroke. Such medical diagnoses are beyond the competence of lay witnesses and therefore do not constitute competent evidence. 20 CFR § 404.1513(a). However, lay witness testimony as to a claimant’s symptoms or how an impairment affects ability to work is competent evidence, 20 CFR § 404.1513(e), Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987), and therefore cannot be disregarded without comment. Dodrill, 12 F.3d at 919.
Because the ALJ did not set forth reasons as to why he chose to discount the coughing testimony (which is consistent with the medical reports of Dr. Mutumacara that claimant suffers from chronic asthma and serious coughing and wheezing problems), the ALJ’s conclusion that claimant can do his previous work as a packager, in a clean room environment, is not supported by substantial evidence.
Conclusion
On remand, the ALJ shall issue a new decision that is consistent with the applicable law as set forth in this disposition. It is not our intent, however, to preclude the ALJ from reopening the hearing to receive additional evidence should such a course of action be deemed appropriate.
REVERSED AND REMANDED for further proceedings in accordance with this opinion.
. He also suffers from hypertension, hypercho-lesterolemia, gastritis, headaches, borderline diabetes and bronchial asthma. The parties do not disagree that claimant's leg problems restrict him to sedentary work. Nor do they dispute that his hypertension and hypercholesterolemia are controlled with medication or that these problems and his diabetes and gastritis do not materially affect his ability to work.
. For some unexplained reason the ALJ referred to Dr. Brown on a number of occasions as R. Wayne Brown, Ph.D., and Dr. Walter as Dr. Walter, even though both are clinical psychologists with similar credentials.
. Even if the ALJ had properly credited Dr. Walter’s testimony regarding the extent of claimant's mental impairment, the ALJ erred by simply concluding that "the claimant’s mental symptomolo-gy does not significantly impact his ability to perform at least entry level sedentary work including as an assembler of food or pharmaceuticals in a clean environment.” Restrictions on activities of daily living, social functioning, and completing work in a timely fashion, clearly have the potential to affect a claimant's residual functional capacity (RFC), and therefore his ability to work. See 20 CFR § 404, Subpt. P. App. 1, 12.00 (Introduction). According to Dr. Walter, claimant’s restrictions do not meet the listing and are not marked; however, they are nonetheless restrictions. These restrictions must be considered, in conjunction with claimant’s physical impairments, in determining his residual functional capacity. 20 CFR § 404.1523; Beecher v. Heckler, 756 F.2d 693, 694-95 (9th Cir.1985) (where claimant suffers both physical and mental impairments both must be considered together in evaluating their effects). The ALJ failed to in-elude any of claimant’s mental restrictions, as set forth by Dr. Walter, in the hypothetical to the vocational expert — except perhaps the concentration restriction to the extent that the hypothetical called for claimant to do "simple one-two-three jobs”. Because the hypothetical was incomplete, it does not constitute competent evidence to support a finding that claimant could do the jobs set forth by the vocational expert. E.g., Varney v. Secretary, 846 F.2d 581, 585 (9th Cir.1988) (vocational expert's response to incomplete hypothetical had "no evidentiary value.”)
. The ALJ also appeared to conclude that claimant was not disabled on the basis of the “grids.” That finding constitutes error because it is not appropriate to rely on the grids where the claimant suffers, as Van Nguyen does, from both an exertional limitation and an environmental restriction such as intolerance of fumes. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984) (holding it is error to rely on the grids where claimant has both an exertional limitation and an inability to tolerate fumes).
Concurrence in Part
concurring in part and dissenting in part:
I concur in Part II of the majority opinion, but must dissent from the analysis and conclusion of Part I.
Citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995) and Lester v. Chater, 81 F.3d 821, 831 (9th Cir.1995) (as amended), the majority concludes that “the ALJ erred
In Andrews, the ALJ credited the testimony of a nontreating, consulting medical advis- or over that of a nontreating, examining psychologist. On appeal we stated that, just as the opinion of a treating physician is ordinarily accorded greater weight than that of a nontreating physician, “greater weight is accorded to the opinion of an examining physician than a non-examining physician.” 53 F.3d at 1041 (citing a federal regulation and a footnote to a Ninth Circuit case).
[W]hen it is an examining physician’s opinion that the ALJ has rejected in reliance on the testimony of a nonexamining advisor, reports of the nonexamining advis- or need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it.
Andrews, 53 F.3d at 1041 (emphasis in original).
In Lester, we reversed the ALJ’s decision rejecting the medical opinions of both a treating physician and an examining psychologist in favor of that of a nonexamining medical advisor because there was no “record evidence to support it [i.e., the nonexamining medical advisor’s opinion]”. 81 F.3d at 832.
Here, substantial record evidence supports the ALJ’s finding that the claimant was not mentally disabled. The ALJ explicitly found that there was no evidence of any mental impairment on the part of the claimant prior to 1991,
The second critical deficiency in plaintiffs argument is the absence of any evidence showing that he had a listed impairment prior to the expiration of his insured status. Even if plaintiff had met the requirements of section 12.04 at the time Dr. Brown examined him in November, 1991, the ALJ’s decision would still be upheld, because there is no evidence showing that plaintiff met those criteria as of December 31, 1989, when his insured status expired. To the contrary, the record demonstrates that the Listed Impairment was not present at that time.
The record shows, for example, that plaintiff never mentioned any mental impairment in his original applications for benefits filed in 1988. More significantly, when plaintiff asked the Court to remand this ease for consideration of additional medical evidence in 1991, no mention was made of any mental impairment. Only after the case was remanded, and nearly two years after the expiration of plaintiffs insured status, did plaintiff first seek an evaluation of his mental condition.
While Dr. Brown’s report indicates that plaintiffs mental health had been deteriorating for two to three years prior to his 1991 examination, he was merely repeating plaintiffs own assessment of his condition. If anything, the reported deterioration in plaintiffs mental health clearly implies that his condition was better in 1989, when his insured status expired. Indeed, Dr. Brown’s statement that plaintiff has been “temporarily partially disabled on a psychological basis since the end of 1989,” establishes that even he did not consider*1469 the impairment to be serious enough to be termed “disabling” prior to the expiration of plaintiffs insured status. Finally, the absence of a .disabling mental condition is supported by the further fact that plaintiff never sought or received any treatment for such condition.
ER vol. I, # 29 at 8-9 (internal citations and footnotes omitted; emphasis in original).
There is more than substantial evidence in the administrative record to support the ALJ’s finding that the claimant did not suffer from a mental impairment prior to December 31,1989. Accordingly, I would affirm.
. 20 C.F.R. § 416.927(d)(1); Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir.1990).
. See ER vol. II at 173 ("the evidence was devoid of any findings or complaints relative to a mental disorder of the claimant during the period of May 1988 until November 18, 1991”); id, at 178 ("prior to the examination conducted of the claimant at the request of his attorney in November 1991, the record is devoid of any findings of any mental disorder of the claimant”).
