Keyser v. Comm'r Soc. Sec. Admin.

• Decision Date: 09 March 2011
• Docket Number: No. 10–35371.,10–35371.
• Citation: 170 Soc.Sec.Rep.Serv. 33,648 F.3d 721,11 Cal. Daily Op. Serv. 6546,2011 Daily Journal D.A.R. 7897
• Parties: Pamela KEYSER, Plaintiff–Appellant,v.COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

648 F.3d 721

170 Soc.Sec.Rep.Serv. 33

11 Cal. Daily Op. Serv. 6546

2011 Daily Journal D.A.R. 7897

Pamela KEYSER, Plaintiff–Appellant,

v.COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant–Appellee.

No. 10–35371.

United States Court of Appeals, Ninth Circuit.

Submitted March 9, 2011.*Filed June 1, 2011.

Tim Wilborn, Wilborn Law Office, P.C., Oregon City, OR, for the appellant.Dwight C. Holton, United States Attorney, Adrian L. Brown, Assistant United States Attorney; David Morado, Regional Chief Counsel; Benjamin J. Groebner, Assistant Regional Counsel, Seattle, WA, for the appellee.Appeal from the United States District Court for the District of Oregon, Mark D. Clarke, Magistrate Judge, Presiding. D.C. No. 1:08–cv–01268–CL.Before: D.W. NELSON, SIDNEY R. THOMAS, and SUSAN P. GRABER, Circuit Judges.Opinion by Judge THOMAS; Dissent by Judge GRABER.

OPINION

THOMAS, Circuit Judge:

Pamela Keyser appeals the district court's decision affirming the Commissioner of Social Security's denial of her applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further proceedings.

I

Pamela Keyser applied for disability benefits based on combined impairments including bullous emphysema, depression, anxiety, and bipolar disorder. Keyser alleges that her disability began when her right lung collapsed. Her lung was surgically repaired and she was discharged eight days later. Keyser was advised that the chance of either her right lung collapsing again, or her left lung collapsing for the first time, was as high as thirty percent. Two of Keyser's treating physicians, Dr. Marc Jacobs and Dr. Stephen Knapp, reported that Keyser was unable to work because of her severe emphysema and potential for another collapsed lung. In addition to these physical ailments, Drs. Jacobs and Knapp reported that Keyser suffered from severe depression and generalized anxiety disorder, which also impacted her ability to work. Dr. Knapp referred Keyser to a psychiatrist, Dr. Monteverdi, who diagnosed Keyser with bipolar disorder, and paranoid and schizotypal personality traits. Dr. Monteverdi assessed Keyser's Global Assessment of Functioning ¹ at 55 to 65 and completed a medical source statement indicating that Keyser had moderate limitations in a variety of areas.

A year after the onset of the disability, Dr. Lahman conducted an agency review of Keyser's psychiatric condition and reported his findings on a Psychiatric Review Technique Form. He noted that Keyser had medically determinable impairments of depression and anxiety, but concluded that the degree of limitation in three functional areas (restriction of activities of daily living, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace) were mild. Dr. Lahman also reported that Keyser had no limitation in the fourth functional area (episodes of decompensation of extended duration).

During a hearing before an administrative law judge (“ALJ”), Keyser reported shortness of breath while working, which required her to sit or take breaks every half hour, and to nap two or three times daily for around one hour. She also testified that she has anxiety and paranoia, and a fear of collapsing another lung if she over-exerts herself. However, Keyser admitted that she sings in a rock-and-roll band approximately three times a week. Keyser's husband also testified at the hearing, confirming that her depression and bipolar disorder had worsened after her lung collapsed. He further testified that she needed to lie down ninety percent of the day because she was so easily fatigued.

The ALJ asked a vocational expert (“VE”) who testified at Keyser's hearing to assume that a hypothetical worker could lift twenty-pound items occasionally and ten-pound items frequently, that she could stand or walk no more than six hours in an eight-hour workday, and that she needed to avoid exposure to fumes, odors, dusts, gases, and otherwise poor ventilation. Based on these limitations, the VE testified that this hypothetical worker could not maintain Keyser's prior work as a grocery store cashier, because that would require her to remain on her feet for the majority of the day, but that she could work as a different kind of cashier, classified as Cashier I or II. Although a Cashier I position is classified as a semi-skilled job, the VE explained that a Cashier II position involves only unskilled, simple, and routine work. The VE then noted that there were 1.2 million cashier jobs in the national economy, with 43,000 positions in the state of Oregon. The VE further limited the state-specific number to 12,696 positions to account for Keyser's need to be sitting.

The ALJ issued a written decision denying Keyser disability benefits. The ALJ determined that Keyser's emphysema was a severe impairment. However, the ALJ noted that “while the claimant's bipolar disorder is a medically determinable impairment, it is not severe. Such was the conclusion of the state agency medical consultant, Frank Lahman, PhD. ... as found in the psychiatric review technique form.” The ALJ then determined that Keyser did not meet or equal any of the listed respiratory impairments. Finally, the ALJ reviewed the record, including the opinions of Drs. Jacobs, Knapp, and Monteverdi, and the lay testimony of Keyser and Keyser's husband. The ALJ concluded that although Keyser could not perform any of her prior work, she could perform work as a Cashier II and that a significant number of Cashier II positions exist in the national economy.

The Appeals Council declined to review the ALJ's disability determination. Keyser appealed to the United States District Court for the District of Oregon, which affirmed the ALJ's denial of disability. Keyser now appeals.

II

Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. The five-steps are: (1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal one of a list of specific impairments described in the regulations? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform? See Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir.1999).

In this case, the ALJ erred in steps two and three by failing to follow the procedures proscribed in 20 C.F.R. § 404.1520a for determining whether Keyser has a severe mental impairment and, if so, determining whether that impairment meets or equals any of the listed impairments.

In step two of the disability determination, an ALJ must determine whether the claimant has a medically severe impairment or combination of impairments. In making this determination, an ALJ is bound by 20 C.F.R. § 404.1520a. That regulation requires those reviewing an application for disability to follow a special psychiatric review technique. 20 C.F.R. § 404.1520a. Specifically, the reviewer must determine whether an applicant has a medically determinable mental impairment, id. § 404.1520a(b), rate the degree of functional limitation for four functional areas, id. § 404.1520a(c), determine the severity of the mental impairment (in part based on the degree of functional limitation), id. § 404.1520a(c)(1), and then, if the impairment is severe, proceed to step three of the disability analysis to determine if the impairment meets or equals a specific listed mental disorder, id. § 404.1520a(c)(2).

At the first two levels of review, this technique is documented in a Psychiatric Review Technique Form (“PRTF”). Id. § 404.1520a(e). At hearings before an ALJ or the Appeals Council, however, the Commissioner must “document application of the technique in the decision.” Id. Specifically, “the written decision must incorporate the pertinent findings and conclusions based on the technique” and “ must include a specific finding as to the degree of limitation in each of the functional areas.” Id. § 404.1520a(e)(4) (emphasis added); see also Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed.Reg. 50,746, 50,757–58 (Aug. 21, 2000) (to be codified at 20 C.F.R. pt. 404 & 416) (“The primary purpose of the final rules is to describe the technique, as distinct from the [PRTF], and to require the use of the technique in all determinations and decisions at all levels of the administrative review process....”). In other words, the regulations contemplate that written decisions at the ALJ and Appeals Council levels should contain a “narrative rationale,” instead of the “checklist of ... conclusions” found in a PRTF. See 65 Fed.Reg. at 50,757–58.

The question, then, is what consequences attach in failing to append the PRTF or incorporate its findings in the written ALJ decision. We previously analyzed this question under the predecessor regulation, and concluded it was reversible error. In Gutierrez v. Apfel, we held that the failure of the ALJ to complete and append the PRTF, as required at the time, required reversal of the district court's decision upholding the ALJ's denial of benefits. Gutierrez v. Apfel, 199 F.3d 1048, 1050 (9th Cir.2000), superseded by regulation as stated in Blackmon v. Astrue, 719 F.Supp.2d 80, 92 (D.D.C.2010). When we decided Gutierrez, the ALJ was required to both make the specific findings, and attach the PRTF to the written decision. See 20 C.F.R. § 404.1520a(d)(2) (2000) (“For all cases involving mental disorders at the administrative law judge hearing or Appeals Council levels, the standard document will be appended to the decision.”). When this rule was changed, the Commissioner explained that...