Benton ex rel. Benton v. Barnhart
| Citation | 331 F.3d 1030 |
| Decision Date | 09 June 2003 |
| Docket Number | No. 02-55941.,02-55941. |
| Parties | Jeffrey BENTON, on behalf of Lynn BENTON, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas Garrett Roche, San Diego, CA, for the plaintiff-appellant.
John C. Cusker, Assistant Regional Counsel, Social Security Administration, San Francisco, CA, for the defendant-appellee.
Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-00-02519-MLH (RBB).
Before: B. FLETCHER, SILVERMAN, Circuit Judges, and MARTONE,* District Judge.
Jeffrey Benton, on behalf of his deceased wife Lynn Benton ("Benton"), appeals the district court's affirmance of the Commissioner's denial of her claim for Social Security Disability Insurance Benefits. An Administrative Law Judge ("ALJ") found that Benton was not mentally disabled. In doing so, he refused to credit the opinion of Benton's psychiatrist as her treating physician. The ALJ instead relied upon the opinion of a psychiatrist who examined Benton once at the behest of the state of California. According to a testifying vocational expert, the absence or presence of mental disability was the difference, between Benton's being able to perform her past relevant work or not. Because we conclude that the ALJ misapplied 20 C.F.R. § 404.1502, the regulation that addresses the definition of "treating source," we reverse the district court, vacate the ruling of the Commissioner and remand.
Benton pursued her claim for disability through the administrative process, appealing the denial to the district court on December 20, 2000. Benton died from the effects of a nasopharyngeal carcinoma on July 25, 2001; this condition was unrelated to her disability claims. Her husband has continued to pursue her appeal on her behalf, timely appealing denial of her claim.
Benton was born on July 16, 1953. She obtained a high school education. She injured her leg while performing high school gymnastics in 1971. As a result, she required psychological treatment and underwent the first of seven knee surgeries; the others were performed annually from 1983 to 1987 and again in 1996. Subsequent to her accident she worked as a waitress, a receptionist, a telephone customer service representative, and an administrative assistant in a hotel.
Benton stopped work on August 4, 1995 due to post-traumatic arthrosis in her left knee and pain in her back, hips, and feet. In the Disability Report she filed when she applied for benefits, she reported being unable to sit, stand, or walk for extended periods. She used a cane to walk; the Claims Representative noted her grimacing and needing to stand up occasionally. A later Disability Report indicated increasing difficulty entering and leaving the bathtub and shower, fixing her hair, writing, and engaging in handcrafts. In a Daily Activities Questionnaire and later testimony at a hearing, she reported depression and sleep deprivation due to chronic pain, and decrements in memory and concentration. She shopped using a mobility cart or a wheelchair pushed by her husband. Benton did do light housework during this period: she cooked one meal three to five days of the week, washed dishes, made the bed, dusted, and did laundry with her husband's help. But she found this work laborious; she reported having to sit down for ten minutes after three to five minutes of washing dishes.
Regarding her ability to work, Benton reported that if she sat for more than 45 minutes, she would have spasms and her left foot would go numb. After ten to twenty minutes of sitting in an office chair, she would have to get up and move for five to ten minutes before sitting down. She could only stand in one place for three to five minutes, and could walk only about a half block with her cane. She had to elevate her left knee for relief, could not carry more than eight pounds, and lost her balance easily.
Benton was a patient of Kaiser-Permanente ("Kaiser"), a nonprofit, group-practice health maintenance organization ("HMO"). Benton was referred to orthopedic surgeon Dr. Donald Fithian in May 1991. He recommended delaying a total knee replacement for ten years, given her young age, in the hope that the combination of cortisone injections and abstaining from work would prove satisfactory until then. But the injections did not prove efficacious for long, and Benton's x-rays showed progressive degenerative arthritis. She began feeling pain in her left shoulder, low back and hip, which Dr. Fithian hypothesized was due to her limp. On July 26, 1995, Dr. Fithian opined that she was permanently disabled due to pain in her lower left extremity. Her seventh surgery led to initial improvement in her knee pain, but not her hip. After she experienced a fall in April 1997, the pain management therapy became less effective, affecting her mood. At this time, Dr. Fithian recommended a knee replacement.
Other doctors employed by the State of California Health and Welfare agency and the Social Security Administration acknowledged the impairment of her knee and restrictions that it imposed but disagreed that it was disabling.
In November 1997, Benton saw Dr. Zwiefach, a psychiatrist with Kaiser, who diagnosed Chronic Pain and Dysthemia. In treating her, he prescribed first Elavil and then Paxil, increasing the dose when she reported no effect. Dr. Zwiefach continued managing her psychiatric medications and consulted regularly with her treating therapists. When asked to evaluate Benton for mental disorders, he observed that she had difficulty with concentration and reported psychomotor retardation, feelings of guilt and worthlessness. He diagnosed her with major depression, an unspecified personality disorder, and chronic pain. He assigned her a Global Assessment of Functioning rating of 53, representing moderate symptoms or moderate difficulty in, inter alia, occupational functioning.
At the request of the state agency, Benton was examined in September 1998 by Dr. Engelhorn, a psychiatrist who noted functional disability due to her chronic left knee pain. He noted onset of depression in late 1997. He reported that Benton was "fully capable of taking care of her basic personal needs" and was "involved in a full variety of light household chores." He found no cognitive impairment or evidence of significant depression or anxiety. He diagnosed "perhaps a mild adjustment type of reaction with low levels of depression perhaps beginning at the end of 1997," which "appears to be an adjustment type of depression relating to her physical disabilities and great pain ... [that] totally relates to problems pertaining to her left knee." State agency psychiatrist Dr. Skopec reviewed the medical records and opined that Benton had no severe mental impairment.
In January 1999, Dr. Zwiefach completed a Mental Residual Functional Capacity Assessment ("Mental RFC Assessment") on Benton, finding marked limitations in 11 of 20 categories. He assigned her a prognosis of very poor.
At her hearing before the ALJ, Benton testified that Dr. Fithian was her orthopedist and Dr. Zwiefach was the psychiatrist overseeing her case, although she had met with him only once. She testified that her right hip, left knee, and both feet bothered her most, and that she could sit comfortably for 10-20 minutes, stand for 5-10 minutes, and walk one-half block. She normally used a cane and still did light housekeeping, cooking, and crafts other than quilting.
The ALJ applied the five-step sequential process presented in 20 C.F.R. §§ 404.1520(a)-(f) that is used to determine whether a claimant is disabled under the Social Security Act. This process is presented in full elsewhere, e.g. Tackett v. Apfel, 180 F.3d 1094, 1098-99. We summarize it as follows: if a claimant cannot meet the burden of showing she is currently not working, at step one, the process ends; if she establishes that she meets the "severely impaired" criteria, at step two, she is "disabled" and entitled to benefits. However, when she has not met the step two criteria, if she can show at step three that her impairment satisfies certain specific criteria listed in the regulations, she is "disabled." If she can show at step four that she is unable to perform work she has done in the past, she is entitled to a step five review. At step five, the government has the burden of showing that she can do other work available in significant numbers in the national economy; if it does not meet this burden, the claimant is deemed "disabled."
The ALJ found that Benton met step one: she had not engaged in substantial gainful activity since August 4, 1995; and that although she had severe left knee degenerative joint disease and arthritis, chronic pain, and an affective disorder, she did not meet step two. A vocational expert testified that a hypothetical person with Benton's physical residual function capacity could perform her past work as a receptionist, but could not sustain any competitive employment based upon either the mental assessment of Dr. Zwiefach or Benton's testimony at the hearing as to her physical condition. The ALJ did not credit Dr. Zwiefach's opinion as a treating doctor, and found Benton's claims of disabling pain and limitations not credible. He found that Benton was able to perform sedentary work, and denied her benefits at step four of the sequential evaluation process, finding that she could return to her past relevant work as a receptionist.
The district court had subject matter jurisdiction to...
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Issue Topics
...records, he had a duty to seek them out before rejecting the doctor’s opinion. Id. Ninth Circuit In Benton ex rel. Benton v. Barnhart , 331 F.3d 1030 (9th Cir. 2003), because the ALJ did not recognize that the physician might be a treating source, a remand was required for the ALJ to addres......
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...records, he had a duty to seek them out before rejecting the doctor’s opinion. Id. Ninth Circuit In Benton ex rel. Benton v. Barnhart , 331 F.3d 1030 (9th Cir. 2003), because the ALJ did not rec- § 1202.6 SOCIAL SECURITY ISSUES ANNOTATED III-86 ognize that the physician might be a treating ......
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Issue topics
...records, he had a duty to seek them out before rejecting the doctor’s opinion. Id. Ninth Circuit In Benton ex rel. Benton v. Barnhart , 331 F.3d 1030 (9th Cir. 2003), because the ALJ did not recognize that the physician might be a treating source, a remand was required for the ALJ to addres......