Penny v. Sullivan, 92-15580

• Decision Date: 16 August 1993
• Docket Number: No. 92-15580,92-15580
• Citation: 2 F.3d 953
• Parties: , Unempl.Ins.Rep. CCH 17465A Homer PENNY, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 953

2 F.3d 953

42 Soc.Sec.Rep.Ser. 131, Unempl.Ins.Rep. CCH 17465A

Homer PENNY, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services Defendant-Appellee.

No. 92-15580.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 18, 1993.

Decided Aug. 16, 1993.

James Hunt Miller, Fresno, CA, for plaintiff-appellant.

Kaladharan M.G. Nayar, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding.

Before: LAY, ^* Senior Circuit Judge, HUG, and SCHROEDER, Circuit Judges.

LAY, Senior Circuit Judge.

Homer Penny appeals the judgment of the district court affirming the Secretary's denial of his application for disability insurance benefits and supplemental security income benefits (SSI). The district court affirmed the ALJ's conclusion that Penny was not "under any disability within the meaning of the Act at any time through the date of this decision"--May 17, 1989. Penny argues that the denial of his application is not supported by substantial evidence on the record as a whole and that the ALJ improperly rejected his claims of disabling pain. We reverse and remand to the district court with directions to enter judgment awarding both disability insurance benefits and SSI benefits. ¹

I.

Homer Penny is 46 years old and has a ninth grade education. He had worked as a maintenance man in a winery for seventeen years. In 1980, Penny suffered a lifting injury that caused a ruptured disc. He declined surgery and was restricted from "heavy lifting or repeated bending." Penny was terminated in 1982 because he could no longer meet the physical demands of the job. He has not worked since that time. ²

In November 1984, Penny had an auto accident that caused a neck injury. Shortly thereafter, he was diagnosed with degenerative disc disease. On March 5, 1988, Penny sustained another injury to his back from twisting while reaching for a door knob. He underwent a hemilaminotomy and diskectomy in April 1988.

Penny applied for Title II disability insurance benefits and Title XVI SSI benefits on April 20, 1988, alleging disability due to back surgery and continuous problems with pain since June 27, 1980. An Administrative Law Judge held a hearing on December 7, 1988. ³ The ALJ determined that Penny had met the special earnings requirement under Title II through June 30, 1987. Thus, with regard to his claim for disability insurance benefits, Penny had the burden to prove he was disabled prior to June 30, 1987.

In his memorandum opinion, the ALJ made general findings that, as of the date of the hearing, 1) Penny suffered from severe musculoskeletal impairments which after surgical correction did not meet or equal any of the listed impairments contained in 20 C.F.R., pt 404, subpt P, app. 1 (1987); 2) medical evidence did not establish that Penny's impairment was expected to last twelve months; 3) Penny retained a residual functional capacity to do sedentary work; and 4) Penny's allegations of pain were not credible. Accordingly, the ALJ concluded that Penny was not disabled and therefore not entitled to any benefits.

II.

The ALJ devoted almost his entire examination to Penny's pain and disability existing on the date of the hearing, December 7, 1988. Thus the record is confusing as to whether the ALJ properly focused on whether, for purposes of his Title II disability insurance claim, Penny was disabled prior to June 30, 1987. As previously indicated, the ALJ evaluated the entire case based upon the evidence available through the time of his decision of May 17, 1989.

We review the judgment of the district court in denying each of these claims de novo. Adams v. Bowen, 872 F.2d 926, 927 (9th Cir.), cert. denied, 493 U.S. 851, 110 S.Ct. 151, 107 L.Ed.2d 109 (1989). The Secretary's denial of benefits will be disturbed only if it is not supported by substantial evidence on the record as a whole or it is based on legal error. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir.1988). We consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985).

In order to qualify for disability benefits, a claimant must establish that he is unable to engage in "substantial gainful activity" due to a "medically determinable physical or mental impairment" which "has lasted or can be expected to last for a continuous period of not less than 12 months." Marcia v. Sullivan 900 F.2d 172, 174 (9th Cir.1990) (quoting 42 U.S.C. Sec. 423(d)(1)(A)). "A claimant will be found disabled only if the impairment is so severe that, considering age, education, and work experience, that person cannot engage in any other kind of substantial gainful work which exists in the national economy." Id.

At step five of the sequential analysis, once a claimant has proven that his physical impairment prevents a return to his previous occupation, the burden shifts to the Secretary to show that the claimant can engage in other types of substantial gainful work that exist in the national economy. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir.1984). The Secretary must consider the claimant's residual functional capacity and vocational factors such as age, education, and past work experience. 20 C.F.R. Secs. 404.1520(f), 416.920(f) (1989).

We hold that the ALJ erred in determining that substantial evidence on the record as a whole did not support Penny's disability claim. The ALJ determined that, at a minimum, Penny could perform sedentary work. This determination was based solely on a report of December 20, 1988 from Dr. Ross, a neurosurgeon at the Veterans Hospital in San Francisco, opining that Penny could perform sedentary work as defined by the Social Security Administration. The ALJ then found that Penny could not return to his past relevant work as a maintenance engineer, as of 1982 but concluded, by use of the medical vocational grid, that Penny could carry on substantial gainful activity by doing sedentary work. The ALJ rejected Penny's complaints of pain as not credible, concluding that Dr. Ross "presumably factored pain into his conclusion." He also doubted Penny's credibility as to pain because the medical records indicated that Penny had little medical treatment between 1985 and 1988.

We find the ALJ erred at several different points in the analysis. First, our review of the record as a whole indicates that the ALJ ignored substantial evidence on the overall record indicating that Penny was disabled within the meaning of the Act. Penny testified extensively at the hearing about the pain and numbness that he has endured perpetually for years. ⁴ Although Dr. Ross' opinion indicated Penny could do sedentary work, the opinion was based solely upon his evaluation of the medical records relating to the 1988 surgery. Dr. Ross was not Penny's treating physician and in fact never personally examined him. Without the benefit of hearing Penny's complaints of pain, we find Dr. Ross's opinion regarding Penny's ability to perform "sedentary work" as defined by the Social Security Administration ⁵ to be of very limited value. ⁶

Other evidence in the record as a whole further supports Penny's claims. Dr. Kevin F. Hanley, a board certified orthopedic surgeon, examined Penny on May 26, 1989. ⁷ He concluded that "this gentleman's capabilities to pursue occupational activities are extremely limited, and it is unlikely that he could perform any type of productive job activity in his current condition. It is further extremely unlikely that these conditions are remediable."

We find as an additional matter that the ALJ erred in discounting Penny's complaints of pain. In Bunnel v. Sullivan, 947 F.2d 341 (9th Cir.1991), we held that an adjudicator may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence. Id. at 346-47. We reasoned that if an adjudicator could reject a claim for disability simply because a claimant fails to produce medical evidence supporting the severity of the pain, there would be no reason for the adjudicator to consider anything other than medical findings. Id. at 347. The district court noted the error of the ALJ, but upheld the ALJ's rejection of Penny's non-exertional pain on the ALJ's alternative finding that Penny's complaints of pain were not credible.

Nothing in the present record refutes, on the date of the hearing, plaintiff's claim of pain and its severe limiting effects. There is nothing in the record to demonstrate that plaintiff was malingering or lying concerning his subjective pain. Although an ALJ is responsible for resolving questions of credibility, here the ALJ's conclusory finding that Penny's claim of pain was not credible is refuted by all of the medical records and the opinions of both Dr. Ross and Dr. Hanley. The ALJ discredited Penny's testimony of existing pain because he did not seek medical treatment for back pain between January 1985 and March 1988. This fact does not in any way prove that Penny's testimony concerning his pain at the time of his hearing was not credible. Moreover, the ALJ's finding that Penny's daily activities indicate that he was not in pain is simply unsupported by any evidence in the record as a whole.

We find that the overall record supports Penny's claim through May 17, 1989, that he was disabled under the meaning of the Act.

III.

The government urges that Penny did not sustain his disability claim under Title II in that Penny did not prove he was disabled prior to June 30, 1987.

The record indicates that the ALJ failed to examine Penny concerning his medical condition including the pain and suffering relating to his...