Lewis v. Apfel

• Decision Date: 02 January 2001
• Docket Number: No. 99-55356,99-55356
• Citation: 236 F.3d 503
• Parties: (9th Cir. 2001) BRADLEY LEWIS, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of the Social Security Administration, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 503

236 F.3d 503 (9th Cir. 2001)

BRADLEY LEWIS, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 99-55356

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 13, 2000

Filed January 2, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Martin Taller, Anaheim, California, for the plaintiff-appellant.

Frank W. Hunger, Assistant Attorney General, Alejandro N. Mayorkas, United States Attorney, Janice L. Walli, Chief Counsel, Region IX, D. J. Edelman, Assistant Regional Counsel, Social Security Administration, San Francisco, California.

Appeal from the United States District Court for the Central District of California R. J. Groh, Jr., Magistrate Judge Presiding. D.C. No.CV 96-4401-RJG

Before: A. Wallace Tashima, Richard Tallman, Circuit Judges, and William Alsup, District Judge.¹

ALSUP, District Judge:

Bradley Lewis appeals the magistrate judge's affirmance of a final decision of the Commissioner of Social Security, which denied his application for disability insurance and supplemental security income benefits under Titles II and XVI of the Social Security Act. He alleges that he was disabled by several conditions: a seizure disorder, drowsiness from his medications, mild mental retardation, and an organic personality disorder that caused him to act inappropriately in work and social situations. An administrative law judge determined that he had the residual functional capacity to perform his past relevant work (as a part-time lot-and-lobby attendant) or, in the alternative, to perform various jobs identified by a vocational expert. The magistrate judge then dismissed Lewis's suit challenging the ALJ's determination. Because the ALJ's decision is not supported by substantial evidence, we reverse the judgment of the magistrate judge and remand with instructions to direct the Commissioner to calculate Lewis's benefits.

Background Statement

Bradley Lewis suffers from a seizure disorder, with which he was diagnosed as a child. Two types of seizures afflict him: petit mal and grand mal. Petit mal seizures are less serious but more frequent. They last for seconds and do not cause him to lose consciousness. Grand mal seizures do; and, though less frequent, last for two to five minutes. Medications for his disorder, he alleges, make him groggy. Lewis is also mildly mentally retarded, with a verbal and full-scale IQ of 78 and a performance IQ of 81.

Lewis was hospitalized for grand mal seizures in April, September, and December 1990; May 1991; and November 1993. Lewis also reported or was treated for seizure episodes in November 1990, March 1991, August 1992, and July 1994. Many of these episodes, according to his treating physicians' notes, followed Lewis's failure to comply with his prescribed therapy. Lewis's family members testified that Lewis had nightly petit mal seizures. Lewis's brother testified that he had about 150 daytime petit mal seizures in 1993-94. His family members all testified that he suffered from severe fatigue. In the opinion of his treating psychologist, he had poor social perception, which caused him to act inappropriately and often led to problems in both work and social life.

Lewis has worked on and off -occasionally up to twenty hours per week, but never full time. In the midto late1980s, he worked as a laborer in his sister's construction company.² She testified that, despite his willingness, he could not complete his work (such as sweeping floors) without her assistance or supervision. Lewis worked as a box boy at a supermarket five days a week in 1989-90, and as a napkin/ silverware wrapper at a Red Lobster restaurant three days a week in 1991-92.

Starting in June 1993, Lewis worked at a McDonald's as a lobby-and-lot attendant, cleaning tables, floors, and the parking lot. He worked eighteen to twenty hours a week for about two months before his hours were cut back. By June 1994, at the time of the hearing, he was working only two-and-a-half to five hours per day, one or two days a week, for a maximum of ten hours per week. Lewis testified that, although the McDonald's owner had told him that the restaurant needed to cut back, Lewis believed that the decrease in his hours was because of his seizure disorder.

Lewis first applied for social security benefits in 1991. The Commissioner denied the application without an administrative hearing on June 18, 1991.³ Lewis did not appeal. He next applied for benefits in September 1992, claiming that he had become unable to work on September 15, 1990. After the Commissioner denied this application, Lewis was granted a June 1994 hearing before an administrative law judge. Five witnesses testified: Lewis, his brother, his sister, his mother, and a vocational expert. The record included documentation of emergency room visits and hospital stays, and notes and reports from three treating physicians -Drs. Dauben, Halcrow, and Duggan. Lewis later supplemented the record with medical records made after the hearing.

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. 404.1520 & 416.920. The ALJ first considers whether the claimant is engaged in substantial gainful activity; if not, the ALJ asks in the second step whether the claimant has a severe impairment (i.e., one that significantly affects his or her ability to function); if so, the ALJ asks in the third step whether the claimant's condition meets or equals one of those outlined in the Listing of Impairments in Appendix 1 of the Regulations;⁴ if not, then in the fourth step the ALJ asks whether the claimant can perform his or her past relevant work; if not, finally, the ALJ in the fifth step asks whether the claimant can perform other jobs that exist in substantial numbers in the national economy. 20 C.F.R. 404.1520(b)-404.1520(f)(1) & 416.920(b)416.920(f)(1).

Ten months after the hearing, in May 1995, the ALJ issued a decision that Lewis was not disabled. The ALJ found in favor of Lewis at step one, concluding that his ten hours per week at McDonald's did not constitute substantial gainful activity. Likewise, at step two he found that Lewis's seizure disorder and mild mental retardation in combination were severe as of September 15, 1990. At step three, however, the ALJ determined that Lewis's impairments, either alone or in combination, did not meet or equal any of the conditions outlined in the Listing of Impairments. At steps four and five, the ALJ determined that Lewis, despite severe-to-moderate limits on his working abilities, could perform his then-current work as a McDonald's lot attendant with increased hours, and could perform the jobs cited by the vocational expert, including office helper. The ALJ rejected the family members' testimony that Lewis's medications made him chronically groggy and fatigued. He concluded that Lewis "has not been disabled, as defined in the Social Security Act, at any time through the date of this decision." He thus denied Lewis's application for benefits. Lewis asked the Appeals Council to review the ALJ's decision, but it declined.

With his administrative remedies exhausted, Lewis filed suit in the Central District of California. After consenting to have Magistrate Judge Groh decide the case, the parties filed cross-motions for summary judgment. Magistrate Judge Groh granted the Commissioner's motion and dismissed the complaint with prejudice. In so doing, Magistrate Judge Groh concluded sua sponte that the 1991 application had res judicata effect on the issue of disability through June 1991, and that it created a presumption of continuing non-disability thereafter. This timely appeal followed.

Standard of Review

This Court reviews de novo a district court's order upholding the Commissioner's denial of benefits. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The scope of appellate review, however, is limited: this Court must affirm if substantial evidence supports the Commissioner's decision and if the Commissioner applied the correct legal standards. Ibid. Substantial evidence is more than a mere scintilla, but may be less than a preponderance. Id. at 1098. Substantial evidence is relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion. Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If the evidence can reasonably support either affirmance or reversal, a court may not substitute its judgment for that of the Commissioner. Tackett , 180 F.3d at 1098. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony and ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).

Analysis

Lewis raises five issues on appeal: (1) did the ALJ and the magistrate judge err about the relevant time period from which to assess his disability; (2) did the ALJ make adequate credibility findings about the testimony of Lewis's family members; (3) did the ALJ adequately explain his step-three determination that Lewis's impairments did not meet or equal any listed in Appendix 1; (4) did substantial evidence support the ALJ's step-four determination that Lewis could perform his then-current work at McDonald's for more hours; and (5) did substantial evidence support the ALJ's step-five determination that there were jobs that Lewis could perform.

A. Period of Alleged Disability

Lewis contends that the appropriate starting point for assessing his disability was March 1987 -not July 1991, as the magistrate judge concluded, or September 15, 1990, as the ALJ concluded.⁵ Lewis alleged in his application that the onset date of his disability was September 15, 1990. At his hearing, he moved to change the onset date to March 1987. The ALJ denied the motion, although he considered evidence of disability from before September 1990. The magistrate judge sua sponte held...