Berry v. Astrue

• Decision Date: 22 September 2010
• Docket Number: No. 09-35421.,09-35421.
• Citation: 622 F.3d 1228
• Parties: Daniel BERRY, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

622 F.3d 1228

Daniel BERRY, Plaintiff-Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 09-35421.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 5, 2010.

Filed Sept. 22, 2010.

Charles W. Talbot, Tacoma, WA, for the appellant.

Jeffrey C. Sullivan, United States Attorney, Brian C. Kipnis, Assistant United States Attorney, David Morado, Regional Chief Counsel and L. Jamala Edwards (argued), Assistant Regional Counsel, Social Security Administration, Office of General Counsel, Seattle, WA, for the appellee.

Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, Senior District Judge, Presiding. D.C. No. 3:08-cv-05149-FDB.

Before: A. WALLACE TASHIMA, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

OPINION

FISHER, Circuit Judge:

In September 2005, Daniel Berry, a military veteran and former commercial courier driver born in 1959, filed a claim for disability insurance benefits under 42 U.S.C. § 423 and supplemental security income benefits under 42 U.S.C. § 1382. His claim was denied upon a finding that he could return to his past relevant work and therefore was not disabled. That finding was based in part on the conclusion that whether Berry could pass a drug test was irrelevant to the determination of disability, even if Berry could prove that he needed to be able to pass such a test to perform his past relevant work. We disagree with that conclusion and therefore remand for further administrative proceedings.

Background

Before his alleged disability, Daniel Berry worked about 14 years as a military communications and computer supervisor, followed by about 6 years as a courier driver. He left his job as a courier driver on June 10, 2000.

As a veteran, Berry sought treatment for various medical conditions through the Department of Veterans Affairs (VA). In September 2001, the VA determined that Berry was “entitled to individual unemployability” status as of July 1, 2000, finding that his “main difficulty with unemployment is his pain regime and that potential employers would not tend to hire him due to his inability to pass a drug test due to his pain medications, abnormal gait and limitations due to his service connected low back disability.”

Berry applied for social security disability benefits in September 2005. He claims that he has been disabled since his last date of employment as a courier driver in June 2000 and that his disability is a result of chronic low back pain, degenerative disk disease, degenerative arthritis on both hips, bilateral knee degeneration, sleep apnea, depression, diabetes, obesity, hearing loss, hemorrhoids and night sweats. After the Social Security Administration (SSA) denied his claim, Berry sought and obtained a hearing before an Administrative Law Judge (ALJ).

At his hearing in July 2007, Berry argued that he could not return to his past relevant work as a courier driver because that job has a mandatory drug testing requirement that his prescribed pain medications would cause him to fail. The ALJ observed that the general job description in the Dictionary of Occupational Titles (DOT) does not mention a drug testing requirement and declined as “irrelevant” Berry's offer to prove that the job carries such a requirement in practice. Nor did the ALJ consider whether, if such a requirement exists, Berry was physically capable of meeting it.

In a decision dated September 12, 2007, the ALJ performed a sequential evaluation and determined that Berry was not disabled. See 20 C.F.R. 404.1520 (describing the five-step sequential evaluation for assessing disability claims). At step one, the ALJ found that Berry had not engaged in substantial gainful activity since June 2000. At step two, he found that Berry had one medically determinable impairment that significantly limited his ability perform basic work activities: lower back pain. The ALJ also considered and rejected Berry's claims that several other conditions impaired his ability to work. At step three, the ALJ determined that Berry's qualifying impairment does not meet the criteria to establish disability automatically, regardless of age, education or work experience. In order to determine at step four whether Berry could return to his past work, the ALJ performed a residual functional capacity (RFC) analysis. During that analysis, the ALJ discounted some of Berry's subjective complaints about the effects of his lower back pain, finding them inconsistent with some of his self-reported activities. Having completed his RFC findings, the ALJ found that Berry could return to his past work as a courier notwithstanding his functional limitations. The ALJ therefore found that Berry was not disabled, without reaching step five.

Berry appealed the ALJ's decision to the district court. The district court affirmed the ALJ, adopting over Berry's objections a magistrate judge's report and recommendation. This appeal followed.

Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court's judgment upholding the denial of social security benefits. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.2009). We will “set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error.” Id. (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006)).

Discussion

I.

Berry argues that the ALJ erred by finding that Berry could return to his past work regardless of whether that work has a drug testing requirement that he could not meet because of his prescription pain medication. We agree with Berry. If a drug prescription disqualifies a claimant from performing his past relevant work, he is not capable of returning to that work. Therefore, the ALJ erred by precluding Berry from making a record whether his medically required need to take prescription drugs would bar him from working as a courier.

The SSA's regulations explain that “[a]t the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.” 20 C.F.R. § 404.1520(a)(4)(iv). To make this determination, the SSA “will compare [its] assessment of your residual functional capacity with the physical and mental demands of your past relevant work.” Id. § 404.1560(b); see also id. § 404.1520(f) (same); Social Security Ruling 82-62, 1982 WL 31386, at *2 (explaining that step four “requires careful consideration of the interaction of the limiting effects of the person's impairment(s) and the physical and mental demands of his or her [past relevant work] to determine whether the individual can still do that work”). Generally, a claimant who is physically and mentally capable of performing past relevant work is not disabled, whether or not he could actually obtain employment. See 42 U.S.C. 423(d)(2)(A) (requiring that claimant's disability be determined “regardless of ... whether he would be hired if he applied for work”).

Applying this requirement, the ALJ and the district court concluded that any requirement that couriers be free (or nearly free) of prescription pain medication would be a mere hiring practice, relevant to whether Berry could obtain his past work but not relevant to whether he could perform it-i.e., not a “physical [or] mental demand” of the work and therefore not relevant to the disability determination. In particular, the ALJ observed (accurately) during the hearing that the DOT job description for couriers does not include the ability to pass a drug test as a requirement of the job, see DOT 230.663-010, 1991 WL 672160, and the magistrate judge, in the report the district court adopted, expressly concluded that inability to pass a drug test “is not the kind of work-related (i.e., physical or mental) limitation or restriction the Social Security regulations contemplate.” The Commissioner so argues on appeal.

We reject these restricted readings of the law. If it is true, as Berry offered to prove, that Berry's prescribed medication regime to treat his potentially disabling condition would categorically prevent him from obtaining work as a courier by rendering him physically unable to pass a drug test that is mandatory across employers, then he cannot meaningfully be said to be capable of working as a courier. A mandatory requirement that employers cannot hire people with a certain level of pain medication in their blood is in essence a physical demand of the job. The ALJ was not permitted to ignore the possibility that such a mandatory requirement exists, in the face of Berry's offer of proof, merely because no such physical demand appears in the DOT.

A mandatory drug testing requirement of the kind Berry alleges is not a mere hiring practice that is irrelevant to the determination of disability. Under 42 U.S.C. § 423(d)(2)(A), an individual is disabled “only if his physical or mental impairment [is] of such severity that he is ... unable to do his previous work [or] engage in any other kind of substantial gainful work ... regardless of ... whether he would be hired if he applied for work.” The language excluding consideration of whether a claimant who sought work would in fact be hired cannot be construed to include a hiring practice that is directly tied to the claimant's disability. Otherwise, the limiting language would defeat the entire statutory scheme, which provides benefits for individuals who cannot work due to a disability. This understanding of the statute-as intended to exclude from consideration “employer preferences” not directly related to a “medically determinable physical or mental impairment”-is consistent with its legislative purpose. See S.Rep. No. 90-744, at 41 (1967), reprinted in 1967 U.S.C.C.A.N. 2834, 2882; cf. Sorenson v. Weinberger, 514 F.2d 1112, 1117-19 (9th Cir.1975) (per curiam) (interp...