Smolen v. Chater

Decision Date29 March 1996
Docket NumberNo. 94-35056,94-35056
Citation80 F.3d 1273
Parties, Unempl.Ins.Rep. (CCH) P 15161B, 96 Cal. Daily Op. Serv. 2159, 96 Daily Journal D.A.R. 3640 Catherine A. SMOLEN, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Administration, * Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Ralph Wilborn, Ralph Wilborn & Etta L. Wilborn, P.C., Eugene, Oregon, for plaintiff-appellant.

P.K. Abraham and Richard H. Wetmore, Assistant Regional Counsel, Health & Human Services, Seattle, Washington, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, Chief Judge, Presiding. No. CV-92-06273 (HO).

Before HUG, Chief Judge, FERGUSON, Circuit Judge, and SCHWARZER, District Judge. **


SCHWARZER, Senior District Judge.

Catherine Smolen appeals the decision of the district court affirming the denial by the Commissioner of Health and Human Services ("Commissioner") of her application for disabled child's benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 416, 423 (1988 & Supp. III 1991).


In April 1966, when Smolen was five years old, she was diagnosed as having a Wilms tumor of the left kidney and a metastatic lesion in her lower right lung. On April 30, 1966, Smolen underwent surgery to have the Wilms tumor and her left kidney removed. Throughout the next four years, Smolen received extensive chemotherapy and radiation treatment. Although this therapy reduced the metastatic lesion in her lower right lung, Smolen developed a new metastatic lesion in her upper left lung. Because the chemotherapy and radiation treatment did not reduce this lesion, Smolen had to undergo a left upper lobectomy on April 4, 1968. After the lobectomy, Smolen continued to receive chemotherapy through July 1970. Thereafter, Smolen was apparently free of carcinoma until February 1987, when she was diagnosed as having invasive grade III ductal adenocarcinoma of the left breast. As treatment for her breast cancer, Smolen underwent a modified radical mastectomy and another year-long course of chemotherapy.

On April 23, 1987, Smolen applied for a period of disability and disability insurance benefits under Title II of the Social Security Act and for Supplemental Security Income ("SSI") under Title XVI of the Act. Both applications were denied. Smolen's application for disability and disability insurance was denied because she lacked sufficient earnings to be insured under Title II on her own earnings record; her application for SSI benefits was denied because the Commissioner expected her to regain the capacity to perform substantial gainful activity before the expiration of 12 continuous months. See 42 U.S.C. § 423(d)(1)(A)(1988).

In March 1988, Smolen filed a second application for SSI benefits and an application for disabled adult child's insurance benefits under Title II of the Act, based on the earnings record of her father. Both applications were denied initially and on reconsideration. Upon Smolen's request, a hearing was held before an Administrative Law Judge (ALJ). After the hearing, the ALJ issued two separate decisions, one regarding SSI benefits and one regarding disabled child's insurance benefits.

In the SSI decision, the ALJ found Smolen disabled beginning March 16, 1988, based on adenocarcinoma of her left breast and, therefore, eligible for SSI benefits.

In the disabled child's decision, the ALJ found that Smolen was not eligible for disabled child's benefits. To be eligible, Smolen had to have become disabled prior to November 1, 1982 (her twenty-second birthday) and to have remained disabled thereafter. See 42 U.S.C. § 402(d)(1)(B)(ii)(1988). Although the ALJ found Smolen disabled beginning in 1966 on the basis of a Wilms tumor and metastatic disease of the lung, the ALJ found that disability to have ended in April 1970. Thus, Smolen was not found disabled during the requisite time period.

Smolen timely requested review by the Appeals Council of the ALJ's decision denying her application for disabled child's benefits. In support of her request, Smolen submitted additional evidence and a written argument contending that the ALJ had failed to comply with Social Security Rulings 83-20 and 88-13 ("SSR 88-20" and "SSR 88-13"). On December 3, 1990, the Appeals Council granted the request for review, vacated the ALJ's decision, and remanded for further proceedings and a new decision.

Following additional proceedings, a second ALJ denied Smolen's application for disabled child's benefits by a decision issued October 11, 1991. In that decision, the ALJ determined that Smolen was not entitled to disabled child's benefits because she had not been disabled during the entire period beginning prior to November 1, 1982, her twenty-second birthday, through March 1987, when she developed breast cancer. Smolen made a timely request for review of the ALJ's decision. The Appeals Council denied this request, making the ALJ's October 11, 1991 decision a final decision of the Commissioner. Smolen then sought review of that final decision in the district court. The district court affirmed the decision by a judgment entered November 15, 1993, and Smolen now seeks review by this court.

Smolen contends that the ALJ erred in determining she was not disabled: (1) by improperly rejecting Smolen's subjective symptom testimony; (2) by improperly rejecting physician's opinions; and (3) by improperly rejecting lay testimony. Smolen also argues that the ALJ's decision was not supported by substantial evidence. We have jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1291 and reverse and remand.


We review the district courts decision de novo and therefore must independently determine whether the Commissioner's decision (1) is free of legal error and (2) is supported by substantial evidence. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir.1989). "Substantial evidence" means "more than a scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but "less than a preponderance." Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975); see also Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir.1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In determining whether the Commissioner's findings are supported by substantial evidence, we must consider the evidence as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985). We must give the facts a full review and must independently determine whether the Commissioner's findings are supported by substantial evidence. Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). If we find that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, we may set aside the Commissioner's denial of Social Security insurance benefits. 42 U.S.C. § 405(g); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985).

I. Relevant Time Period

To be eligible for disabled child's insurance benefits, the claimant must, "at the time [her] application is filed," be "under a disability ... which began before [s]he attained the age of 22." 42 U.S.C. § 402(d)(1)(B)(ii). Other circuits have held, and we agree, that the claimant must be disabled continuously and without interruption beginning before her twenty-second birthday until the time she applied for child's disability insurance benefits. See, e.g., Suarez v. Secretary of Health and Human Servs., 755 F.2d 1, 3 (1st Cir.1985), cert. denied, 474 U.S. 844, 106 S.Ct. 133, 88 L.Ed.2d 109 (1985), and reh'g denied, 474 U.S. 1097, 106 S.Ct. 872, 88 L.Ed.2d 911 (1986); Reading v. Mathews, 542 F.2d 993, 997 (7th Cir.1976); Futernick v. Richardson, 484 F.2d 647, 648 (6th Cir.1973); Reyes v. Secretary of Health, Educ. and Welfare, 476 F.2d 910, 914 (D.C.Cir.1973).

Although Smolen did not apply for disabled child's benefits until March 1988, the ALJ who considered Smolen's application on rehearing thought the period during which she had to be disabled ended in early 1987, when she developed breast cancer. (ER 281.) The parties appear to agree that this was the material time period.

The ALJ's approach assumes that Smolen can "tack" disabilities in order to qualify for benefits. In other words, Smolen would be found disabled from early 1987 onward based on her breast cancer, while relying on other disabilities for the period beginning prior to her twenty-second birthday through early 1987. However, the law is not clear on whether such tacking is permissible. Compare 42 U.S.C. § 402(d)(1)(B)(ii) (stating claimant must be "under a disability ... which began before (s)he attained the age of 22," thereby suggesting claimant may have to rely on the same disabling impairment(s) throughout the entire period in order to qualify for benefits) (emphasis added) and 20 C.F.R. § 404.1522(a) (1991) (prohibiting tacking of successive unrelated impairments to meet initial 12-month durational requirement for a finding of disability) with Social Security Ruling 82-52 ("SSR 82-52") (allowing tacking for re-entitlement purposes).

It is not necessary to resolve this question here. Smolen has provided evidence of underlying impairments (not including her breast cancer) and their effect on her ability to function for the entire period from prior to November 1, 1982 to March 1988 and beyond. Therefore, we will treat that as the material time period rather...

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