Mickey C. WEBB, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.
No. 04-35445.
United States Court of Appeals, Ninth Circuit.
Filed Dec. 29, 2005.
433 F.3d 683
Argued and Submitted Sept. 16, 2005.
Here, the district court relied on Bettwy to conclude that Abbott was not making a reasonable beneficial use of its land when it extracted the groundwater. That was error. For unlike the defendants in Bettwy, Abbott did not withdraw groundwater from its property for use “off the lands from which they are pumped.” Bettwy, 558 P.2d at 20. Rather, Abbott withdrew the groundwater for the purpose of expanding its manufacturing facilities, which was an improvement of the land from which the water was withdrawn; therefore, it was a permitted beneficial use under Arizona law. See Bristor, 255 P.2d at 180; see also Evans, 47 P.2d at 987. While some of the groundwater was channeled off of Abbott‘s property, this is immaterial because Arizona law does not require that the withdrawn water be “used,” so long as it is extracted for the reasonable beneficial use of Abbott‘s land. See Bristor, 255 P.2d at 180; see also Evans, 47 P.2d at 987.
Accordingly, because we conclude that Abbott‘s de-watering activity was protected by the common law doctrine of reasonable use, the Bradys’ negligence and nuisance claims must fail. The judgment of the district court is reversed and the case is remanded with directions to enter judgment for Abbott.
REVERSED and REMANDED.
FARRIS, Circuit Judge, concurring:
I agree with Judge Tashima that Bristor v. Cheatham is controlling. If we were not bound to follow the Arizona Supreme Court, I would urge that Arizona‘s reasonable use doctrine no longer depend solely upon whether the use of the water benefits the property from which it is extracted. Accounting for the amount of water used, considering the utility of competing water uses, and acknowledging the rights of adjacent water users seems especially important in an arid, rapidly growing state like Arizona.
In authorizing strict water permit restrictions as well as public notice and the opportunity for administrative hearings on proposed water permits, the Arizona legislature has indicated that Arizona water users must consider the rights of adjacent property-holders.
I therefore concur in the majority opinion.
David M. Blume, Office of the General Counsel, Social Security Administration, Seattle, WA, for the defendant-appellee.
FISHER, Circuit Judge:
Mickey C. Webb appeals the district court‘s summary judgment affirmance of the Commissioner of Social Security‘s final decision denying him disability insurance benefits under Title II of the Social Security Act,
I.
In 1987, at the age of 35, Webb had his torso partially crushed in an all-terrain vehicle accident. He suffered several broken ribs and internal injuries and was hospitalized for a week. Two years later, he collapsed at his job as a retail manager and was taken to the emergency room, where he was found to have elevated blood pressure. In 1991, Webb experienced visual disturbances and memory loss; he underwent a CAT scan, but its results were normal. Then, in 1994, he began to have acute back pain that his doctor traced to the ATV accident and a workplace injury in 1982 or 1983.
During the next several years, Webb continued to suffer from lower back pain and hypertension. He went on and off a variety of medications. Although some had positive results, their side effects were often intolerable. Because of his ailments and the side effects of their treatment, Webb stopped working.
Although there are gaps in Webb‘s treatment history, the record before the ALJ included doctors’ reports and other medical evidence documenting his problems. X-rays taken in 1994 showed “disc space narrowing” in his lower back. A doctor‘s report stated that “[d]egenerative disc disease [wa]s suspected.” In 1995, after attempting to help a friend build a garage door, Webb experienced severe hip pain; a clinical report indicated that he endured similar hardship prior to that “after getting in and out of small cars.” In 1996, he also began to have knee pain. Doctors’ reports from that year reported “tissue swelling” in Webb‘s left knee and “some degenerative changes medially and some minimal patellar spurring.” Throughout this period, Webb‘s back problems appear to have been constant. His other conditions grew better or became worse in correspondence with his ability to endure the side effects of his therapeutic regimen.
In 2000, Webb filed an application for disability insurance benefits in which he alleged disability since 1991 due to back pain, high blood pressure, memory loss, arm pain, weakness and lack of sleep. Although Webb presented evidence of his problems after 1997, his insurance coverage expired in that year. The relevant period for the purpose of assessing his disability status, therefore, is prior to 1997. In 2002, after a hearing, the ALJ found Webb not to be disabled. When the Appeals Council denied Webb‘s request for review, the ALJ‘s decision became the final agency decision for purposes of this appeal. Pursuant to
II.
We review the district court‘s order affirming the Commissioner‘s denial of
III.
A. Relevant Legal Framework
The Social Security Act defines disability as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”
Steps three through five require the ALJ to evaluate whether the claimant‘s impairment satisfies certain statutory requirements entitling him to a disability finding. If the impairment does not, the ALJ must assess whether the claimant remains capable of doing his prior work or engaging in alternative employment.
B. Findings by the ALJ
In assessing Webb‘s petition, the ALJ first determined that Webb was not engaged in any gainful employment activity. At step two, the ALJ found that Webb did not have a medically severe impairment or combination of impairments prior to the lapse in his insurance coverage in 1997. Having made that finding, the ALJ ended his inquiry because there was no way that Webb could prove he was disabled within the meaning of the Act. It is this preemptive finding that Webb challenges.
An impairment or combination of impairments may be found “not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual‘s ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks omitted) (emphasis add-
In this case, the ALJ found that Webb lacked a medically severe impairment or combination of impairments despite objective medical evidence demonstrating back pain, hypertension, knee pain, hip pain, visual disturbances, memory loss, diverticulitis, lack of sleep, difficulty performing physical tasks and lack of employment from 1991 through 1997. Although the medical record paints an incomplete picture of Webb‘s overall health during the relevant period, it includes evidence of problems sufficient to pass the de minimis threshold of step two. See Smolen, 80 F.3d at 1290. And although Webb ultimately bears the burden of establishing his disability, see Bowen, 482 U.S. at 146, the ALJ had an affirmative duty to supplement Webb‘s medical record, to the extent it was incomplete, before rejecting Webb‘s petition at so early a stage in the analysis. See
Moreover, on the record that does exist, the ALJ‘s reasons for rejecting Webb‘s complaints at step two are not substantial enough to meet the “clear and convincing” standard when balanced against Webb‘s doctors’ contemporaneous observations, some objective tests and Webb‘s subjective complaints. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner‘s reasons for rejecting the claimant‘s testimony must be clear and convincing.“) (internal citation and quotation marks omitted). The ALJ found that Webb‘s “subjective complaints” and “assertions regarding the disabling extent of his functional limitations ... [we]re exaggerated, and not credible” because Webb was not under constant treatment, Webb was capable of performing house-
The ALJ also viewed Webb‘s objective medical evidence simply as part of “the claimant‘s subjective complaints” when finding Webb‘s assertions to be “exaggerated, and not credible.” Credibility determinations do bear on evaluations of medical evidence when an ALJ is presented with conflicting medical opinions or inconsistency between a claimant‘s subjective complaints and his diagnosed conditions. See, e.g., Batson v. Comm‘r of Soc. Sec. Adm‘n, 359 F.3d 1190, 1195 (9th Cir. 2004). But there is no inconsistency between Webb‘s complaints and his doctors’ diagnoses sufficient to doom his claim as groundless under the de minimis standard of step two. Webb‘s clinical records did not merely record the complaints he made to his physicians, nor did his physicians dismiss Webb‘s complaints as altogether unfounded. To the contrary, the doctors’ reports and test results usually corresponded with the afflictions Webb perceived, particularly his hypertension, the side effects of his treatment and the interaction of some drugs (his pain killers) with others (his hypertension medication) in his therapeutic regimen. There is not, in this instance, the total absence of objective evidence of severe medical impairment such as was the case in Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005), where we affirmed a finding of no disability at step two when even the claimant‘s doctor was hesitant to conclude that any of the claimant‘s symptoms and complaints were medically legitimate. Id. at 1006.
We do not intimate that Webb will succeed in proving that he is disabled and entitled to disability insurance benefits. But we do hold that the ALJ lacked substantial evidence to find that the medical evidence clearly established Webb‘s lack of a medically severe impairment or combination of impairments. The ALJ should have continued the sequential analysis beyond step two because there was not substantial evidence to show that Webb‘s claim was “groundless.” See Smolen, 80 F.3d at 1290.
REVERSED and REMANDED.
BEA, Circuit Judge, dissenting:
We review the district court‘s judgment de novo to determine whether the administrative law judge‘s (ALJ‘s) decision is supported by substantial evidence in the record as a whole and applies the correct legal standards. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The ALJ‘s findings must be upheld if they are supported by inferences reasonably drawn from the record. Id. If evidence exists to support more than one rational interpretation, this court must defer to the ALJ‘s decision. Id. Because a thorough review of Mickey Webb‘s medical records shows that there is substantial evidence to support the ALJ‘s determination that Webb did not suffer from a severe impairment during the relevant period, I respectfully dissent.
In June 1987 Webb was involved in an ATV accident that resulted in multiple rib fractures and possible facial injures. X-rays of the thoracic and cervical spines taken at the time were “essentially unremarkable.” There is no evidence of further medical treatment, to such spines or otherwise, until August 1989 when Webb sought emergency room treatment for weakness and numbness in his left arm. Webb reported that he had felt weak for a number of years. The examining physician determined that the symptoms were caused either by stress or hypertension1 and recommended that Webb eat breakfast and lunch (which he had not done that day). Webb continued to maintain steady employment following the ATV injury until 1991.2
In October 1991, Webb reported visual disturbance and memory loss. A CT scan of the brain revealed “no evidence of hypertensive bleed or other intraparenchymal[organ tissue] abnormalities.”
On April 9, 1992, Webb reported to Dr. Donnelly that he had been doing quite well and had no problems with headaches or visual discomfort or transient ischemic attack symptoms3 since his blood pressure had been under control. Dr. Donnelly noted, “evidently he quit his job as he was just kind of ‘puttering around.’ ” Webb‘s hypertension was also “under good control.”
On December 7, 1993, Webb sought medical treatment after a foreign body hit his right eye while he was working with a table saw.4 In October 1994, Webb was treated for lower back pain. It was noted that Webb had discontinued his hypertension medication in April 1992 due to fatigue, but had not gone to see a doctor since then. Dr. Naymik noted that Webb‘s hypertension was “poorly controlled” and prescribed Dilacor (hypertension medication) and Relafen (pain medication). A chest x-ray was within normal limits with poor resolution of the thoracic vertebrae, and an electrocardiogram (EKG) was also normal.
On November 7, 1994, Webb reported that he was feeling better with regard to
The “clinical sheet” prepared by Dr. Naymik notes that Webb‘s blood pressure was “much improved” and that Webb was to continue taking Relafen and Dilacor daily. Webb‘s left shoulder, arm and mid-thoracic back pain symptoms had improved with anti-inflammatory medications. Dr. Naymik further noted that Webb‘s “[b]ack is straight to palpation. Deep tendon reflexes are symmetrical. Straight leg raising is negative. Upper extremity left arm deep tendon reflexes are good.” An x-ray of the lower back “demonstrated disc space narrowing at L4-L5” and Dr. Naymik suspected degenerative disease. Dr. Naymik advised Webb to “continue to protect his lower back and to do appropriate low back exercises.” He also suggested Webb consider an MRI scan and/or neurosurgical evaluation to check for “disc fragmentation or significant herniation at the L4-L5 level” but Webb said he needed to think it over.
On February 3, 1995, Webb reported injuring his left hip during the previous week while helping a friend build garage doors. Webb reported that he had experienced similar pain “3 to 6 months ago after getting in and out of small cars.” He described his general health as “good” and noted that he continued to take blood pressure medication without side effects. It was further noted that he remained unemployed and spent his days working around the house. Webb reported that he exercised by walking five miles twice a week.
In April 1996, Webb was treated for a blistered right hand, possibly related to weeding, or mechanical work involved in installing brakes on his car. In May 1996, Webb presented with complaints of left knee pain and swelling that had lasted about a week. Webb had fluid in his knee, but an x-ray revealed only “minimal degenerative changes.”5 A medical report from the next month noted that the knee was “quite a bit better.”
On July 8, 1996, Webb complained of back pain when he lied down, and reported that he napped daily. Webb‘s blood pressure was elevated and Dr. Naymik switched him to a new hypertension medication (Norvasc). Physician‘s notes from July 17, 1996 indicated that Webb was taking his medication without side effects and it “seem[ed] to be lowering his B/P [blood pressure] adequately.” On September 26, 1996, Webb reported continuing back pain, and requested more Relafen, a pain medication which “worked for him.”
In November 1996, Webb was briefly treated for an episode of intestinal problems. Dr. Naymik assessed him with possible diverticulitis (inflammation of the colon), which was getting better, or gastroenteritis (inflammation of the stomach or intestines), and prescribed antibiotics.
There is no evidence of medical treatment during 1997. Webb‘s insured status expired on September 30, 1997. Therefore, the relevant period for his disability status is only that which predates September 30, 1997. See
In 2000, Webb filed an application for disability insurance benefits, alleging disability since 1991 due to back pain, high blood pressure, arm pain, weakness and
II.
In assessing the severity of Webb‘s alleged impairments, the ALJ properly considered the medical evidence and noted, “[T]reating records from his 1991 alleged onset date through his 1997 date last insured are relatively sparse, and depict a pattern of only transitory and intermittent medical conditions rather than any chronic condition which would produce significant work-related restrictions.” Substantial evidence supports the ALJ‘s assessment.6
As noted above, Webb‘s October 1994 chest x-ray was within normal limits with poor resolution of the thoracic vertebrae. An electro-cardiogram (“E.K.G.“) performed at the same time was also normal. In May 1996, Webb sought treatment for fluid in his knee, but an x-ray revealed only “minimal degenerative changes,” and a medical report from the next month noted that the knee was “quite a bit better.” A lumbar x-ray taken in July 1996 was unremarkable, and Webb‘s doctor reported that Webb‘s symptoms were controlled with medication. Physician‘s notes from July 17, 1996 indicated that Webb was taking his medication without side effects and that the medication seemed to be lowering his blood pressure adequately.7
During his testimony before the ALJ, Webb stated that when his blood pressure is lowered to a normal level (by medication) he feels “sluggish,” “weak and sleepy.” Webb explained that he tried about 20 different medications over the years but when his “pressure would get down to where it belongs—which is basically 120/80—when I‘m at that level, I can‘t operate and I hurt and ache. I can operate at 140-150 over 95 or so. That‘s where I try to operate at this day. I can handle it. That‘s too high, but I can at least function. Or my pain pills, they ruin my blood pressure so I try to monitor it accordingly. [Q: Okay. So you feel better when your blood pressure is high] A: Yes.”
As explained above, Webb‘s medical records provide substantial evidence to support the ALJ‘s determination that the side effects of Webb‘s medication did not constitute a severe impairment, much less were they intolerable. In summary, On October 27, 1994 Dr. Naymik prescribed Dilacor (hypertension medication) and Relafen (pain medication). On November 7, 1994, Dr. Naymik noted that Webb‘s blood pressure and upper extremity pain was “much improved” and instructed Webb to continue taking his medication daily. On February 3, 1995, Webb reported that he continued to take his blood pressure medication without side effects and described his general health as “good.” On July 8, 1996,
As the ALJ also noted, Webb‘s activities during the relevant period, as reported in his medical records, including working with a table saw, doing normal household chores, and walking five miles twice a week, were not consistent with a severe disability. Id. See
Because the ALJ‘s determination that Webb did not suffer from a severe impairment at step-two of the five-step sequential analysis was supported by substantial evidence I would affirm the ALJ‘s finding that Webb is not disabled within the meaning of the Social Security Act.