Robbins v. Social Sec. Admin.

• Decision Date: 27 October 2006
• Docket Number: No. 04-35890.,04-35890.
• Citation: 466 F.3d 880
• Parties: Leroy J. ROBBINS, Plaintiff-Appellant, v. SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.3d 880

Leroy J. ROBBINS, Plaintiff-Appellant, v. SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

No. 04-35890.

United States Court of Appeals, Ninth Circuit.

Submitted December 9, 2005.^*

Filed October 27, 2006.

David B. Lowry, Portland, OR, for the appellant.

David M. Blume, Assistant Regional Counsel, Seattle, WA, for the appellee.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-03-00615-ALH.

Before JAMES R. BROWNING, DOROTHY W. NELSON, and DIARMUID F. O'SCANNLAIN, Circuit Judges.

BROWNING, Circuit Judge.

Leroy J. Robbins appeals an affirmance of the Commissioner of Social Security's partial denial of benefits. We have jurisdiction to review under 28 U.S.C. § 1291. We reverse and remand because the Commissioner's decision is not supported by substantial evidence.

I. Background

In October 1996, Robbins filed applications for supplemental security income and disability insurance benefits. He alleged he has been disabled since August 1993 by depression and severe impairments to his neck, left shoulder, back and knees. After his applications were denied initially and upon reconsideration, Robbins requested and was granted a hearing in March 1999 before Administrative Law Judge ("ALJ") Eileen Burlison during which the August 1998 testimony of Robbins and his son Rodney were accepted into the record. Judge Burlison denied Robbins's claims and, in August, 2000, the Social Security Appeals Council denied his request for review. Robbins then filed a complaint for review with the district court.

In August 2001, based on a stipulation by the parties, the district court reversed Judge Burlison's determination. The district court ordered the ALJ on remand to: order and evaluate a consultative exam as to Robbins's mental impairment claim; hold a new hearing; reevaluate the credibility of Robbins and of other lay testimony; and reevaluate Robbins's residual functional capacity ("RFC") and ability to perform past relevant or other work. In February 2003, a second hearing was conducted by Administrative Law Judge Riley Atkins, who found Robbins disabled as of September 7, 1998, but not before. Because Robbins did not file a written challenge to this decision, Judge Atkins's determination became the Commissioner's final decision.

In March 2003, Robbins filed a complaint for review with the district court challenging this partial denial of benefits. In September 2004, the district court affirmed the Commissioner's decision. Robbins timely appeals that judgment, challenging the ALJ's determinations at steps four and five of the Commissioner's five-step sequential evaluation process for determining if a claimant is disabled.¹

II. Analysis

A. Standard of Review

We review de novo the findings of the district court. Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.1995). We may set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error. Id. "Substantial evidence" means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.1990). If the evidence can support either affirming or reversing the ALJ's conclusion, we may not substitute our judgment for that of the ALJ. Flaten, 44 F.3d at 1457. However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a "specific quantum of supporting evidence." Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989).

B. RFC Determination

As part of his step four determination, the ALJ determined Robbins's RFC. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545; Soc. Sec. Ruling 96-8p (July 2, 1996) ("SSR 96-8p"), 1996 WL 374184. The ALJ found Robbins was capable of: (1) "`less than a wide or full range of Medium' exertion with Postural and Manipulative non-exertional limitations" from his alleged August 1993 onset date through September 6, 1998; and (2) from September 7, 1998 on, "`less than a wide or full range of Light' exertion, requiring a `sit-stand-walk option'" in addition to the same, additional non-exertional limitations.

At step five, the ALJ found that, for the period between August 1993 and September 6, 1998, Robbins was not disabled. This conclusion relied on testimony of a vocational expert at the February 2003 hearing that because, based on his determined "medium" RFC, Robbins had been capable of working as a "general clerk" or "security or gate guard," positions that had existed in significant numbers in the national economy during that time. Based on similar testimony and the determined "light" RFC, the ALJ found Robbins was disabled as of September 7, 1998.

1. Adverse Credibility Finding

In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay evidence, and "the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment." See SSR 96-8p, 1996 WL 374184, at *5; accord 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Moreover, SSR 96-8p directs that "[c]areful consideration" be given to any evidence about symptoms "because subjective descriptions may indicate more severe limitations or restrictions than can be shown by medical evidence alone." See SSR 96-8p, 1996 WL 374184, at *5. When giving such consideration, if the record establishes the existence of a medically determinable impairment that could reasonably give rise to the reported symptoms, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. See Soc. Sec. Ruling 96-7p (July 2, 1996) ("SSR 96-7p"), 1996 WL 374186, at *1; 20 C.F.R. §§ 404.1529, 416.929; Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996).

While an ALJ may find testimony not credible in part or in whole, he or she may not disregard it solely because it is not substantiated affirmatively by objective medical evidence. See SSR 96-7p, 1996 WL 374186, at *1; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.1997). Moreover, unless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each. See Smolen, 80 F.3d at 1283-84 ("Once a claimant meets the Cotton test and there is no affirmative evidence suggesting she is malingering, the ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so.").

In this case, there is no dispute that the record establishes the existence of impairments to Robbins's shoulder, back and knees as of August 1993, which could have given rise to the severe pain and functional limitations between that date and September 1998, to which Robbins testified in his record affidavit. As a result, the ALJ was required to make a credibility finding as to Robbins's own testimony. Because the ALJ made no finding that Robbins was malingering, he was required to give clear and convincing reasons in support of his adverse credibility finding. Id.

The record shows that the ALJ found Robbins's testimony to be "not entirely credible." Reading the ALJ's fleeting credibility finding in the best light, he offers the following as justification: First, Robbins's testimony was "not consistent with or supported by the overall medical evidence of record"; second, "his testimony regarding his alcohol dependence and abuse problem remains equivocal, based on his conflicting testimony and reports to doctors of maintaining sobriety, versus continuing to drink in lesser amounts."

Taking the latter first, we do not consider a cursory finding that a single line of testimony is "equivocal" sufficient to constitute substantial evidence. While conflicting or inconsistent testimony concerning alcohol use can contribute to an adverse credibility finding, see, e.g., Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir.1999) (finding applicant's testimony not credible where there was evidence of malingering and where the testimony and "various statements regarding his drinking were not consistent"), in this case it cannot justify such a finding alone and without further corroboration or explanation.²

As for the former justification, it is exactly the type we have previously recognized the regulations prohibit. See SSR 96-7p, 1996 WL 374186, at *1; Light, 119 F.3d at 792 ("In this case, the ALJ disbelieved Light because no objective medical evidence supported Light's testimony regarding the severity of subjective symptoms from which he suffers, particularly pain. An ALJ may not discredit a claimant's subjective testimony on that basis. To find the claimant not credible, the ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), on conflicts between his testimony and his own conduct, or on internal contradictions in that testimony.").

In addition, we note that the ALJ did not provide a "narrative discussion" that "contain[s] specific reasons for the finding ..., supported by the evidence in the case record"; nor was his brief notation "sufficiently specific to make clear ... the weight the adjudicator gave to the individual's statements and the reasons for that weight," as he is required to do. See SSR 96-7p, 1996 WL 374186, *2; SSR 96-8p, 1996 WL 374184, at *7. So, even if the ALJ had given facially legitimate reasons for his partial adverse credibility finding, the complete lack of meaningful explanation gives this court nothing with which to assess its legitimacy. While an ALJ may certainly find testimony not credible and disregard it as an "unsupported, self-serving statement," we cannot affirm such a...