Hill v. Astrue

• Citation: 698 F.3d 1153
• Decision Date: 26 October 2012
• Docket Number: No. 10–35879.,10–35879.
• Parties: Debbra J. HILL, Plaintiff–Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

698 F.3d 1153

12 Cal. Daily Op. Serv. 12,131

2012 Daily Journal D.A.R. 14,911

Debbra J. HILL, Plaintiff–Appellant,

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

No. 10–35879.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2011.

Filed Oct. 26, 2012.

John E. Seidlitz, Jr., Seidlitz Law Office, Great Falls, MT, for the plaintiff-appellant.

David I. Blower, Social Security Administration, Office of the General Counsel, Denver, CO, for the defendant-appellee.

Appeal from the United States District Court for the District of Montana, Richard F. Cebull, Chief District Judge, Presiding. D.C. No. 1:09–cv–00136–RFC.

Before: ALFRED T. GOODWIN, HARRY PREGERSON, and MILAN D. SMITH, JR., Circuit Judges.

ORDER

The opinion filed August 7, 2012 is withdrawn. A superseding opinion is being filed concurrently with this order. In the opinion, Part I of the Discussion, paragraph six, penultimate sentence, starting with “Dr. Johnson's statement” and ending with “Hill faces” shall be amended in full to read as follows:

Dr. Johnson's statement that Hill would be “unlikely” to work full time was not a conclusory statement like those described in 20 C.F.R. § 404.1527(d)(1), but instead an assessment, based on objective medical evidence, of Hill's likelihood of being able to sustain full time employment given the many medical and mental impairments Hill faces and her inability to afford treatment for those conditions.

Thus, the Defendant–Appellee's Petition for Panel Rehearing is denied as moot.

OPINION

PREGERSON, Circuit Judge:

On December 7, 2006, Debbra Jo Hill (“Hill”) filed for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act. Hill alleged disability beginning April 4, 2004. Hill claims that she is disabled due to unstable diabetes, eyesight problems, bipolar disorder, anxiety, depression, a back injury, a right shoulder injury, a history of two small strokes, attention deficit hyperactivity disorder, a seizure disorder, and unpredictable euphoria.

The Social Security Administration denied Hill's application, and denied it again after reconsideration. On September 24, 2008, Administrative Law Judge (“ALJ”) Lloyd E. Hartford held a video hearing. Hill was represented by counsel and testified at the hearing, along with Dr. Monty Kuka, Ph.D., a non-examining medical expert, and James Fortune, a vocational expert. The ALJ issued a written decision denying Hill's application on April 6, 2009. The Appeals Council denied Hill's request for review, thereby making the ALJ's decision the final decision subject to judicial review. Hill then filed a complaint with the district court. The district court adopted the findings and recommendation of a magistrate judge, granted summary judgment in favor of the Commissioner, and affirmed the ALJ's decision. Hill appeals the district court's decision.

On appeal, Hill argues that the ALJ's decision denying all benefits was not supported by substantial evidence. Specifically, Hill argues that: (1) the ALJ ignored or failed to consider evidence favorable to Hill, including the medical opinions of Hill's counselors, therapists, and treating physicians; and, (2) the hypothetical question the ALJ posed to the vocational expert improperly excluded evidence of Hill's limitations. As discussed below, we agree with Hill that the ALJ failed to consider evidence favorable to Hill and posed an improper hypothetical to the vocational expert.¹ Accordingly, we reverse the district court's grant of summary judgment in favor of the Commissioner.

BACKGROUND

A. Hill's Background

Debbra Jo Hill is currently 54 years old. Hill did not graduate from high school, but she earned her GED. She worked as a certified nurse's assistant (“CNA”) from 2000 until 2004 when she suffered a shoulder injury on the job. She had previously worked at a fast food restaurant, as a housekeeper, and as a telemarketer and bill collector for short periods of time. Hill was intermittently homeless and living out of her car or with friends in 2005 and 2006. At the time of the hearing before the ALJ, Hill lived by herself and worked part-time, approximately 15 to 20 hours a week, as a cashier/stocker at the Dollar Tree store in Great Falls, Montana, earning $7.21 an hour.

Hill was diagnosed with diabetes mellitus (type II) in 2002. Her diabetes was poorly controlled, in part because Hill could not afford to buy insulin and often relied on samples from clinics. She was also living out of her car for a time, and her doctors worried that she would not be able to properly monitor her blood sugar levels.

Hill injured her right shoulder and hand in 2004 and underwent two surgeries. She was limited to lifting no more than ten pounds, and has trouble reaching above her head. Hill was referred to physical therapy, but attended only 7 out of 23 scheduled sessions. Later, Hill had “fair compliance” with her attendance and “overall was improving.”

Hill was diagnosed with bipolar disorder around 1998. She was last hospitalized for her bi-polar condition in July 2007, under the care of Dr. Mark Mozer, a psychiatrist. She was also diagnosed with borderline intellectual functioning by Dr. Lynn Johnson, a psychologist, after tests revealed that Hill's full scale IQ was 76, in the 5th percentile.

In 2000, Dr. Mary Ann Evans diagnosed Hill with panic disorder with agoraphobia, major depressive disorder, bipolar disorder, polysubstance dependence in resolution, cognitive disorder, chronic pain from her work injury, Hepatitis B and C, and other ailments. In 2001, Dr. Evans witnessed Hill having two limited symptom panic attacks. She was also diagnosed with diabetes, hypertension, hyperlipidemia, and chronic anxiety and panic syndrome by Dr. Steven Chrzanowski at Benefis Healthcare in 2006. While working at the Dollar Tree, Hill had panic attacks so severe that she had to go to the back room and collapsed. These attacks were witnessed by Hill's case manager and job coach, Patty Mills.

Hill's most recent panic attack occurred at work on March 7, 2008. Hill's manager at the Dollar Tree called Hill's job coach, Patty Mills, to intervene because Hill had been acting strangely. Ms. Mills later submitted a letter that states, in relevant part,

As the Employment Specialist at the Center for Mental Health, I would never have placed [Hill] at the Dollar Tree. I have had to intervene with scheduling problems. I have witnessed her in a manic phase in which she was edgy at work, rocking back and forth while trying to stack, and people were staring at her. I was called to come and get her since they thought that she was on drugs. I have [ ] good communication[ ] with the manager so I was able to help them learn about bipolar.

I think [Hill] needs assistance. She does not handle stress well. I have had a lot of talks with [Hill] on being positive. She has problems with co-workers. It becomes a “he said, she said” relationship which originally starts out good. She calls in sick [due to] health problems so she is getting fewer hours.

After her panic attack, Hill “slept for about five days,” and Ms. Mills advised her that her manager had requested a doctor's release before Hill could return to work. She obtained a letter from her therapist, Tammi Coffey, which stated that “there are no recognizable clinical reasons why Ms. Hill would not be able to return back to work.” Hill returned to work sometime after March 21, 2008, more than two weeks after the panic attack.

B. The ALJ's Decision

The ALJ performed the five-step sequential analysis required under 20 C.F.R. § 404.1520(a)(4)(i)–(v). See also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999).

First, the ALJ found that Hill “ha[d] not engaged in substantial gainful activity since April 4, 2004, the alleged onset date.” While noting that Hill had worked after her alleged disability onset date, the ALJ found that “this work did not rise to the level of substantial gainful activity.” Since April 15, 2007, and at the time of the hearing, Hill had been working part-time approximately 15 to 25 hours a week as a cashier at the Dollar Tree, earning about $600 per month. But the ALJ found that this work “has never risen to the level of substantial gainful activity” because her earnings were less than the amounts prescribed by the earnings guidelines set forth by the Social Security Administration.

At step two, the ALJ found that Hill has the following severe impairments: “diabetes mellitus; status post right rotator cuff repair times 2; bipolar disorder; mixed personality disorder, not otherwise specified; anxiety; and borderline intellectual functioning[.]”

At step three, the ALJ found that Hill “does not have an impairment or combination of impairments that meets or medically equals” one of those on the Listing of Impairments.²

At step four, the ALJ determined that Hill's residual functional capacity was the ability to

perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) [ ³] except she can lift and/or carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk (with normal breaks) for a total of about 6 hours in an 8–hour workday. She can sit (with normal breaks) for a total of about 6 hours in an 8–hour workday. She can push and/or pull on a frequent basis with her right upper extremity. She can climb ramps/stairs, balance, stoop, kneel, crouch, and crawl frequently. She can climb ladders, ropes, or scaffolds occasionally. She can reach overhead occasionally with her right arm. She should avoid concentrated exposure to hazards such as moving machinery and unprotected heights. She should perform work that requires only occasional interaction with the public and co-workers and that interaction should be on a brief, superficial basis. She can ask simple questions or request assistance, and accept instructions and respond appropriately to criticism from supervisors. S...