Submitted December 9, 2005
Opinion by Judge Browning; Dissent by Judge O'Scannlain.
BROWNING, Circuit Judge:
Leroy J. Robbins appeals an affirmance of the Commissioner of Social Security's partial denial of benefits. We have jurisdiction to review under 28 U.S.C. § 1291. We reverse and remand because the Commissioner's decision is not supported by substantial evidence.
In October 1996, Robbins filed applications for supplemental security income and disability insurance benefits. He alleged he has been disabled since August 1993 by depression and severe impairments to his neck, left shoulder, back and knees. After his applications were denied initially and upon reconsideration, Robbins requested and was granted a hearing in March 1999 before Administrative Law Judge ("ALJ") Eileen Burlison during which the August 1998 testimony of Robbins and his son Rodney were accepted into the record. Judge Burlison denied Robbins's claims and, in August, 2000, the Social Security Appeals Council denied his request for review. Robbins then filed a complaint for review with the district court.
In August 2001, based on a stipulation by the parties, the district court reversed Judge Burlison's determination. The district court ordered the ALJ on remand to: order and evaluate a consultative exam as to Robbins's mental impairment claim; hold a new hearing; reevaluate the credibility of Robbins and of other lay testimony; and reevaluate Robbins's residual functional capacity ("RFC") and ability to perform past relevant or other work. In February 2003, a second hearing was conducted by Administrative Law Judge Riley Atkins, who found Robbins disabled as of September 7, 1998, but not before. Because Robbins did not file a written challenge to this decision, Judge Atkins's determination became the Commissioner's final decision.
In March 2003, Robbins filed a complaint for review with the district court challenging this partial denial of benefits. In September 2004, the district court affirmed the Commissioner's decision. Robbins timely appeals that judgment, challenging the ALJ's determinations at steps four and five of the Commissioner's five-step sequential evaluation process for determining if a claimant is disabled.
We review de novo the findings of the district court. Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). We may set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error. Id. "Substantial evidence" means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990). If the evidence can support either affirming or reversing the ALJ's conclusion, we may not substitute our judgment for that of the ALJ. Flaten, 44 F.3d at 1457. However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a "specific quantum of supporting evidence." Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).
As part of his step four determination, the ALJ determined Robbins's RFC. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545; Soc. Sec. Ruling 96-8p (July 2, 1996) ("SSR 96-8p"), 1996 WL 374184. The ALJ found Robbins was capable of: (1) " `less than a wide or full range of Medium' exertion with Postural and Manipulative non-exertional limitations" from his alleged August 1993 onset date through September 6, 1998; and (2) from September 7, 1998 on, " `less than a wide or full range of Light' exertion, requiring a `sit-stand-walk option' " in addition to the same, additional non-exertional limitations.
At step five, the ALJ found that, for the period between August 1993 and September 6, 1998, Robbins was not disabled. This conclusion relied on testimony of a vocational expert at the February 2003 hearing that because, based on his determined "medium" RFC, Robbins had been capable of working as a "general clerk" or "security or gate guard," positions that had existed in significant numbers in the national economy during that time. Based on similar testimony and the determined "light" RFC, the ALJ found Robbins was disabled as of September 7, 1998.
1. Adverse Credibility Finding
While an ALJ may find testimony not credible in part or in whole, he or she may not disregard it solely because it is not substantiated affirmatively by objective medical evidence. See SSR 96-7p, 1996 WL 374186, at *1; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Moreover, unless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each. See Smolen, 80 F.3d at 1283-84 ("Once a claimant meets the Cotton test and there is no affirmative evidence suggesting she is malingering, the ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so.").
The record shows that the ALJ found Robbins's testimony to be "not entirely credible." Reading the ALJ's fleeting credibility finding in the best light, he offers the following as justification: First, Robbins's testimony was "not consistent with or supported by the overall medical evidence of record"; second, "his testimony regarding his alcohol dependence and abuse problem remains equivocal, based on his conflicting testimony and reports to doctors of maintaining sobriety, versus continuing to drink in lesser amounts."
2. Lay Witness Testimony
It is uncontested that the ALJ erred by failing to account for the August 1998 testimony of Robbins's son Rodney, in which Rodney offered eyewitness evidence supporting his father's claims as to functional limitations and severity of pain. As the Commissioner concedes, the ALJ is required to account for all lay witness testimony in the discussion of his or her findings. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ("Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so.").
Robbins also challenges the ALJ's step five determination of his ability before September 8, 1998 to perform other work available in the national economy. He argues that the hypothetical posed to the vocational expert was inadequate because it excluded some of his functional limitations. This challenge engages the errors discussed above.
REVERSED and REMANDED.
O'SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court's holding that reversal and remand are required in this case. The administrative law judge's ("ALJ") analysis is thorough and cogent, and it should be affirmed.
First, the majority overturns the ALJ's adverse credibility determination. Maj. Op. at 17969-73. I disagree with its analysis, and I would instead hold that the ALJ satisfied the requirement of providing "clear and convincing" reasons for its finding, which is supported by substantial evidence in the record as a whole. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995).
As the majority suggests, we have held previously that "[t]he claimant need not produce objective medical evidence of the pain or fatigue itself, or the severity thereof." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). In other words, an ALJ "may not discredit the claimant's allegations of the severity of pain solely on the ground that the allegations are unsupported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc) (emphasis added); accord 20 C.F.R. § 416.929(c)(2). That point of law is well-established.
The applicable regulations, however, make clear to claimants that in "[e]valuating the intensity and persistence of your symptoms, such as pain, and determining the extent to which your symptoms limit your capacity for work," the agency will "consider all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating or nontreating source, or other persons about how your symptoms affect you." 20 C.F.R. § 416.929(c)(1). They specifically state that the agency will "also consider the medical opinions of your treating source and other medical opinions." Id. The regulations continue:
Id. § 416.929(c)(2), (4) (emphases added); accord id. § 404.1529(c). We have also recognized that an ALJ may consider, as a factor in discrediting a claimant's subjective complaints, " `testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [claimant] complains.' " Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)); accord Smolen, 80 F.3d at 1284 & n. 8 (stating that the ALJ shall consider the "observations of treating and examining physicians" regarding, inter alia, any "functional restrictions caused by the symptoms"). The applicable Social Security Ruling states likewise. It instructs that the adjudicator's credibility finding must be based on the available "medical signs and laboratory findings," as well as on "any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual." See SSR 96-7p, 1996 WL 374186, at *2.
In short, while the claimant is not required to provide objective medical evidence affirmatively proving the severity of his pain, Bunnell, 947 F.2d at 343, the foregoing authority makes clear that an ALJ may reject a claimant's statements about the severity of his symptoms and how they affect him if those statements are inconsistent with or contradicted by the objective medical evidence. See, e.g., Johnson, 60 F.3d at 1434 (noting that "[t]he ALJ also identified several contradictions between claimant's testimony and the relevant medical evidence"). The majority's confusion on this fundamental issue is patent.
The ALJ's assessment of Appellant Leroy Robbins's testimony, which I would hold entirely proper, began with the following correct statement of law:
(Citations omitted.) The ALJ then noted Robbins's testimony regarding his past work, which was that he was no longer able to even carry a can of paint upstairs. Robbins had further testified "that his typical day consist[ed] of sitting and watching television, because of his pain."
The ALJ found these allegations regarding Robbins's functional limitations "not entirely credible," noting that they were not "consistent with or supported by the overall medical evidence of record which reflects no serious physical or mental functional limitations." In making that finding, the ALJ permissibly relied on the opinion of Dr. Victoria Carvalho, which was that Robbins was "consistently assessed as capable of `Medium' exertion, with the accommodation [due to Robbins's `perceived pain'] of being able to `change position every 2 hours, for 10-to-15 minutes.' " Aside from a "slight deviation in the claimant's knees, ankles and toes," Dr. Carvalho had assessed Robbins as having "no functional impairment in the upper or lower extremities; good strength and no difficulties ambulating."
These medical opinions simply were not consistent with Robbins's claim that his pain resigned him to a sedentary life of watching television. Thus, the ALJ did not, as the majority erroneously holds, disregard Robbins's testimony solely because he did not prove the severity of his pain by objective medical evidence. Rather, in the phrasing of the Social Security Administration, the ALJ properly found that Robbins's "alleged functional limitations and restrictions due to symptoms [could not] reasonably be accepted as consistent with the objective medical evidence and other evidence in the case record." SSR 96-7p, at *2.
The majority's approach is one I hope we will not repeat. Its conflating of the two relevant categories—a lack of affirmative support versus the presence of contradictory medical evidence—would absolutely bar adjudicators from making adverse credibility determinations so long as the claimants are able to keep their stories straight. The applicable regulations, agency ruling, and case law all counsel strongly against such an approach.
Additionally, a claimant's inconsistent statements about the use of alcohol can contribute to a determination regarding that claimant's credibility. See Thomas, 278 F.3d at 959; Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).
The ALJ made such a finding in this case, stating that Robbins presented "conflicting testimony and reports to doctors of maintaining sobriety, versus continuing to drink in lesser amounts." The ALJ noted that "[d]uring his initial screening on April 4, 1989, [Robbins] specifically denied having a problem with alcohol." Yet during that same period, Dr. Charles Reagan observed, "The claimant has been drinking up to a case a day. This drinking escalated beginning in 1988." Then on November 12, 1996, as the ALJ further noted, Robbins reported to Dr. Carvalho "that he continues to `occasionally drink' but admitted `he did have a problem with alcohol.' "
The majority's fallback argument is that the ALJ's decision is characterized by a "complete lack of meaningful explanation [which] gives this court nothing with which to assess its legitimacy." Maj. Op. at 17972. It asserts that the same error infects the ALJ's finding regarding Robbins's conflicting testimony as to his alcohol abuse. See Maj. Op. at 17971-72 n. 2.
It is unclear to me why the majority chooses simply to disregard the many pages preceding (as well as the few pages following) the paragraph in which the ALJ made the credibility determination explicit. As the Commissioner suggests, after discussing in great detail the reasons supporting its ultimate findings, the ALJ was not required explicitly to link his determination to those reasons. See, e.g., Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) ("In all, the ALJ at least noted arguably germane reasons for dismissing the family members' testimony, even if he did not clearly link his determination to those reasons.").
Indeed, all of the reasons discussed above constitute "grounds invoked by the agency," SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), or "reasons the ALJ assert[ed]," Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The majority is utterly wrong to suggest otherwise.
In sum, the ALJ properly supported and adequately explained his adverse credibility determination. The finding is supported by specific, clear, and convincing reasons, and it should be affirmed.
I also disagree with the majority's view that a remand is required because the ALJ failed explicitly to comment on the lay opinion testimony of Rodney Robbins, the claimant's son. See Maj. Op. at 17973-74.
The application of harmless error doctrine in our review of the denial of Social Security disability benefits is well-established. See, e.g., Booz v. Sec'y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1983). In Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190 (9th Cir. 2004), for example, we simply asked whether there remained "substantial evidence supporting the ALJ's decision," or whether the error in any way "negate[d] the validity of the ALJ's ultimate conclusion." Id. at 1197. A similar analysis would have been proper in this case.
But, as the majority says, "[w]e recently clarified the proper application of the harmless error standard in Social Security cases." Maj. Op. at 17973. I did not agree with this same majority's formulation in Stout v. Commissioner, 454 F.3d 1050 (9th Cir. 2006), and I do not endorse it here. Stout's "no reasonable ALJ" standard unduly curtails the latitude we have always accorded to the administrative bodies we review.
Regardless, I would hold that the ALJ's error in this case was harmless—even under Stout's exacting test. In Stout, as in each of the cases upon which the majority there relied, the ALJ failed to consider all available lay witness testimony. See 454 F.3d at 1056 (citing various in- and out-of-circuit cases). This case is quite different. Although the ALJ failed to comment on the testimony of the claimant's son, he considered at length the strikingly similar testimony of the claimant's wife and daughter. Given that aspect of the case, as well as the nature of the ALJ's ultimate determination, we "can confidently conclude that no reasonable ALJ, [even] fully crediting the [omitted] testimony, could have reached a different disability determination." Id.
As noted, the majority reverses because the ALJ erred in failing to mention the substance of roughly four pages of Rodney Robbins's unsworn testimony, dated August 28, 1998. Rodney testified that in August 1993 his father had trouble walking, i.e., a "slight limp that become more pronounced . . . on some days than others." He explained that given his father's high level of pain tolerance, his verbalizing his pain was "noteworthy." Rodney recalled his father having "some difficulty" using his arms and hands. He further testified that his father was in pain on approximately half of the occasions on which Rodney saw him, and that his father would become "worn out" easily. Rodney also noticed "marked depression" and some irritability. According to Rodney's testimony, his father's condition had only worsened since August 1993.
Though the ALJ did not mention this testimony in his decision, he did explicitly consider the testimony of Rhonda Heaps, Robbins's daughter. Heaps testified that she had seen her father two to three times per week since August 1993. She testified that he had difficulty walking because of swollen knees, a condition she noticed perhaps once every month. Heaps also discussed her father's pain, explaining that he engaged in uncharacteristic behaviors such as "sitting in [a] chair with his leg up." She testified that her father was depressed and irritable, and that his condition made it difficult to engage in physical tasks associated with managing apartments. The ALJ found her testimony "generally credible, at least to the extent of her reported first-hand observations of her father."
The ALJ also discussed the testimony of Gloria Jean Robbins, the appellant's wife. Ms. Robbins similarly testified to the difficulty Robbins experienced with the physical duties— such as painting, cleaning, and moving heavy items—of his past work as an apartment manager. Even paperwork became a problem, according to Ms. Robbins, because of lapses in memory and an inability to concentrate.
The lay witness testimony from the foregoing individuals stood in the record alongside various items of medical evidence and the expert opinions of multiple medical professionals. The ALJ agreed with Robbins's claim that his impairments were "severe," within the meaning of the regulations. The judge found that Robbins suffered from "severe impairments of left rotator cuff tendinitis; pseudo-gout of the knees, bilaterally; degenerative disc disease of the lumbar spine and history of alcoholism, in partial remission."
In assessing the impact of these impairments, the ALJ considered the opinion of Dr. Richard Guidry, who examined Robbins in May and June of 1995. Dr. Guidry noted that Robbins exhibited "no discomfort" during range-of-motion testing and that Robbins gave "poor effort" during portions of the test. The ALJ also assessed x-ray and MRI findings from May 1995, which showed "moderately severe degenerative changes" in Robbins's spine, but no "signs of disc herniation." Dr. Guidry placed Robbins on "light" duty status.
The ALJ next considered a November 1996 consultative orthopedic evaluation by Dr. Carvalho, which revealed "a slightly decreased radial deviation (i.e., movement through normal range incurring slight pain or numbness), bilaterally in the ankles, with vibratory sensation absent in the knees, ankles and toes, bilaterally." The ALJ noted that Dr. Carvalho otherwise "found no functional impairment in the upper or lower extremities; good strength and no difficulties ambulating." Dr. Carvalho's assessment of Robbins's residual functional capacity ("RFC") was that he could perform "medium" exertion, and was able to carry up to 25 pounds "frequently" and up to 50 pounds "occasionally." The doctor noted that because of his "perceived pain," Robbins should be permitted to "change position every two hours for 10 to 15 minutes."
From February through November of 1997, Dr. Sean Stadtlander treated Robbins for pain in his back, left shoulder, right knee, right wrist and elbow, and neck. Spinal x-rays revealed "moderate" or "mild" degenerative disc disease, but "no evidence of acute bony trauma." The doctor prescribed pain medication. With respect to Robbins's knees, x-rays showed "prominent cartilage calcification" of the left knee and softening of the cartilage in the right knee. Robbins was referred to Dr. Julie Isaacson, an orthopedic surgeon, who aspirated Robbins's right knee and thereafter noted "significant improvement."
In June 1998, upon finding evidence of a meniscal tear and complaints of pain, swelling, and tenderness, Dr. Isaacson performed a total right knee replacement surgery. Thereafter Robbins underwent a course of physical therapy and received pain medication. The ALJ noted that by August 11, 1998, Robbins reported no longer using the pain medication. The ALJ further noted Dr. Isaacson's opinion "that she would like to see [Robbins] in the work force."
Turning to Robbins's RFC, the ALJ considered Robbins's past work experience; the impact of alcoholism, which the ALJ found minimal; Robbins's own testimony of pain and anxiety, which the ALJ found "not entirely credible"; and the testimony of Robbins's wife and daughter, which primarily concerned Robbins's inability to perform work as an apartment manager. The ALJ reviewed the RFC assessment made by "the State agency non-examining medical consultants," which stated that Robbins was capable of "medium" exertion but should be allowed to "change position every 2-hours, for 10-to-15 minutes." Dr. Bruton, as the "impartial medical expert," reviewed all of the medical evidence and testified that he concurred with the opinion of the State agency consultants. Ultimately, then, the ALJ concluded that Robbins's pre-1998 RFC was "at the level of `less than a wide or full range of Medium' exertion with Postural and Manipulative non-exertional limitations."
Next, the ALJ agreed with Robbins's claim (which was supported by the testimony of an impartial vocational expert) that he could no longer perform any of his past work, including the management of apartment buildings. However, the ALJ then held that the Social Security Administration had met its burden of showing other jobs, "existing in significant numbers in the regional or national economy," that Robbins could have performed from 1993 to 1998. Although Robbins was without transferable skills, the vocational expert testified that he could perform other jobs which required "less than a wide or full range of Medium" exertion. Namely, Robbins could have worked as a "general clerk" or a "security or gate guard." Those jobs required only "Light exertion, at a semiskilled level," and would be available even with Robbins's limitations. The ALJ concurred, and he thus found Robbins "not disabled" from August 20, 1993, though September 7, 1998.
I think it clear that the ALJ made a careful assessment of the available medical evidence and found that notwithstanding various postural and manipulative limitations, Robbins could perform work involving something less than a medium range of exertion. The ALJ's reasoned conclusion, in other words, was that the "overall medical evidence of record [ ] reflect[ed] no serious physical or mental functional limitations."
Taking Rodney Robbins's testimony into account, the record hardly looks different. Rodney's testimony covered no ground not also covered by the appellant's daughter and wife. Rodney discussed the pain in his father's knees; testified to uncharacteristic behavior that indicated the extent of his father's pain; said that his father had difficulty using his arms; and noted depression and irritability. Rhonda Heaps also discussed each of these issues, in very similar terms, and the ALJ found her credible. It defies reason to conclude that the ALJ's determination of Robbins's RFC may have been different had he only considered a second recitation of the very same observations.
I am also confident in the harmlessness of the error at issue because of the nature of the ALJ's decision. The ALJ did not doubt that Robbins experienced significant pain; he accepted Rhonda Heaps's testimony as credible, and thus accounted for every limitation to which Rodney Robbins testified. The ALJ further agreed that some impairments were "severe," and his findings accommodated Robbins's need to change positions regularly and take breaks. He also agreed that Robbins could no longer perform work as an apartment manager, which was the subject with which the lay opinion testimony was primarily concerned.
As such, and in light of the proper credibility determination as to Robbins, the ALJ could then reasonably rely on the medical evidence in determining the impact the perceived pain would have had on Robbins's ability to work in other jobs. That medical evidence showed, without equivocation, that prior to September 7, 1998, Robbins had no functional limitation that would have prevented his employment. As detailed above, he had little discomfort during range of motion testing in 1995; x-rays showed only "moderate" degeneration in his spine; he responded well to pain medication, even after the knee replacement; and he had "good strength and no difficulties ambulating." Every medical professional who offered an opinion on the subject—including Drs. Guidry, Carvalho, and Isaacson, as well as the State agency medical consultants and Dr. Bruton, the independent medical expert—suggested in clear terms that Robbins could re-enter the workforce. The ALJ determined that Robbins could do so in a capacity requiring "less than a wide or full range of Medium" exertion. The testimony of Rodney Robbins, which concerned the pain his father experienced while walking or working as an apartment manager, in no way could have undermined this determination so as to deprive it of support by substantial evidence.
Because the lay witness testimony did not actually touch on Robbins's ability to perform work as a "general clerk" or "security or gate guard," the "weight" it may have added—while hardly "substantial"—is entirely beside the point. In determining whether the ALJ's failure to address Rodney Robbins's testimony was harmless error, after Stout we ask whether a reasonable ALJ could have arrived at a different conclusion. Rodney Robbins provided no information not already provided by Rhonda Heaps, and he spoke to no limitations not already accounted for by the ALJ. For those reasons, I think it utterly apparent that there is no such possibility here.
Because the majority's opinion suffers from fundamental errors and fails fairly to apply its own harmless-error standard, I respectfully dissent.
Our review of the record on this issue, however, is beside the point. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (emphasizing the "fundamental rule of administrative law" that "a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency"); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("We are constrained to review the reasons the ALJ asserts."). The ALJ's assessment of this or any other testimony about alcohol use is missing from the record, and no effort appears to have been made to investigate the possible disparity during the hearing.