Swenson v. Sullivan, 88-4032

• Decision Date: 23 May 1989
• Docket Number: No. 88-4032,88-4032
• Citation: 876 F.2d 683
• Parties: , Unempl.Ins.Rep. CCH 14682A Donna J. SWENSON, Widow of Herman J. Swenson, Plaintiff-Appellant, v. Louis W. SULLIVAN, * Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 683

876 F.2d 683

26 Soc.Sec.Rep.Ser. 29, Unempl.Ins.Rep. CCH 14682A

Donna J. SWENSON, Widow of Herman J. Swenson, Plaintiff-Appellant, v. Louis W. SULLIVAN, ^* Defendant-Appellee No. 88-4032.

United States Court of Appeals Ninth Circuit.

Argued March 8, 1989.

Submission Withdrawn March 8, 1989.

Resubmitted March 29, 1989.

Memorandum April 10, 1989.

Order and Opinion May 23, 1989.

Robert P. Stephens, Spokane, Wash., for plaintiff-appellant.

Richard H. Wetmore, Asst. Regional Counsel, DSHS, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, SNEED and ALARCON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Donna J. Swenson appeals from the district court's grant of summary judgment for the Secretary of Health and Human Services upholding a denial of the application of her deceased husband, Herman W. Swenson, for disability insurance benefits for a period from October 16, 1979 to April 13, 1983. Following our remand in 1984, the Secretary determined that Swenson became disabled on April 13, 1983, his 55th birthday. Mrs. Swenson contends that the Secretary erred: (1) by failing to specify reasons for discounting her husband's testimony that he suffered from disabling fatigue beginning in October 1979, (2) by failing to specify reasons for discounting testimony of Swenson's treating physician and two examining psychiatrists that he was disabled during the period in dispute, (3) by accepting a vocational expert's testimony that substantial numbers of jobs existed that Swenson could perform, despite the expert's further testimony that Swenson could not perform as many jobs as could a person deemed disabled under the Medical Vocational Guidelines, and (4) by applying the grids mechanically in selecting his 55th birthday as the onset date of his disability despite finding no material change in his condition between February 1982 and December 1985.

We reverse because the Secretary erred in failing to specify reasons for discounting Swenson's testimony of disabling fatigue and for accepting vocational testimony inconsistent with the grids. See Varney v. Secretary of Health and Human Services, 846 F.2d 581, 583 ("Varney I "), aff'd on rehearing, 859 F.2d 1396 (9th Cir.1988) ("Varney II "); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988). Because there was uncontradicted testimony that Swenson would be disabled if his testimony were credited, the record is sufficiently developed to warrant remand for payment of benefits for the disputed period. See Varney II, 859 F.2d at 1400.

FACTUAL BACKGROUND

Herman W. Swenson applied for social security disability insurance benefits on April 29, 1980. He claimed a disability onset of October 16, 1979, the date on which he stopped working due to arteriosclerotic heart disease.

At an administrative hearing in February 1982, an administrative law judge found that Swenson had a seventh grade education, considered a limited education for purposes of applying the Medical Vocational Guidelines and that he was semiskilled. Dennis Pollack, a psychologist and vocational expert, testified that one with Swenson's vocational background and apparent exertional and nonexertional limitations could perform hundreds of jobs in the national economy. But if Swenson's energy level were as low as he claimed, there would be no jobs he could perform. Pollack added that Swenson's testimony suggested that he might have organic brain damage. At the ALJ's direction, Pollack made a series of tests following the hearing and recommended further evaluation.

The ALJ chose not to order further evaluation. He found that Swenson was unable to return to his work as a carpenter. The ALJ concluded, however, that Swenson was not disabled because the grids did not direct a finding of disability, Pollack testified that there were a substantial number of jobs Swenson could perform, and the nonexertional limitations Pollack identified in post-hearing tests did not significantly reduce the number of jobs Swenson could do.

This panel reversed. We noted that the ALJ's opinion as to available jobs did not constitute substantial evidence, and concluded that (1) the ALJ had failed to develop the record on Swenson's alleged brain damage, and (2) the vocational testimony on which the ALJ had relied was not based on the totality of Swenson's nonexertional impairments.

In December 1985, the ALJ who presided at the initial hearing conducted a second hearing. He issued a recommended decision finding that Swenson became disabled on his 55th birthday, April 13, 1983. The Appeals Council adopted that decision with modifications.

Swenson appealed the Secretary's denial of his application for disability benefits. The district court adopted the ALJ's decision as to available jobs, and granted the Secretary's motion for summary judgment.

EVIDENCE OF DISABILITY

A. Claimant's Medical History

Swenson was 51 in October 1979 when he stopped working due to cardiac pain. He had undergone single coronary bypass surgeries in 1973 and 1974, then returned to work. In April 1980, he underwent a third surgery to bypass the two grafts and a third artery that had become occluded.

Swenson's family has a significant history of heart disease. Both parents died of heart trouble, his father at age 55 and his mother at age 39. Of nine brothers and sisters, four had died of heart related problems by 1981, and three were living with heart problems.

Swenson suffered also from organic brain damage probably caused by oxygen deprivation resulting from his cardiac condition or triple bypass surgery.

He died of cardiac arrest on November 16, 1986. His wife was substituted as party plaintiff.

B. Claimant's Testimony of Fatigue

At both hearings, Swenson testified that he stopped working in October 1979 because he felt cramping pains in his chest and pains in his left arm similar to those he had felt during the periods preceding his previous heart surgeries. He had dizzy spells, had to lie down at work, and was awakened from sleep by sharp chest pains. He did not feel better after his surgery in April 1980.

At the February 1982 hearing, he testified that on a good day, about once a week he could walk a few miles, but that on a bad day, which he experienced frequently, he could walk only a half mile. On bad days, he would awaken, have coffee and lie down.

At the 1985 hearing, Swenson testified that he continued to suffer from intermittent fatigue, sometimes accompanied by a burning or tightening sensation in his chest, particularly when he exerted himself slightly or felt minor stress. He frequently had to lie down after such minor chores as walking to the mailbox or scraping snow from his car. He had no hobbies or interests other than visiting with his family and neighbors. Previously, he had kept busy with work, fishing, hunting, and building things at home.

C. Medical Evidence of Fatigue

Dr. Hays, the treating physician and a general practitioner, reported in 1980 that Swenson suffered from chest pains and severe shortness of breath. Having seen Swenson on several occasions through September 1985, the doctor concluded that Swenson was "completely disabled" due to "chronic fatigue which ha[d] existed for years and inability to perform to any extent for a long period of time...." Hays added that he was unable to specify actual limitations since he had not performed relevant tests.

Dr. Stifter, a cardiovascular and internal medicine specialist, and Dr. Johnson, a diagnostician and internist, concluded independently that, based on treadmill tests and examinations in September 1980 and April 1981, Swenson had excellent functional aerobic capacity. Stifter concluded that Swenson was capable of engaging in light work that involved lifting up to 25 pounds, although he did not comment on Swenson's complaints of fatigue and depression and that he had lost his notes of Swenson's physical examination. Johnson apparently found the complaints of fatigue credible having concluded that Swenson could perform only sedentary work.

Psychologists Pollack and Roubus held the opinion that Swenson had suffered moderate brain damage. Pollack found in 1982 that Swenson's depression was likely to interfere with his day-to-day functioning. One test showed that Swenson had a personality profile that suggested proneness "to somatization ¹ of stress." Roubus found from that test and an examination in April 1985 that Swenson demonstrated a moderate level of depression. He noted that Swenson's brain damage had significantly impaired his concentration, memory, and learning ability.

Dr. Bot, a psychiatrist, reviewed the Pollack and Roubus reports and examined Swenson in August 1985. Bot concluded that Swenson suffered from mild, atypical organic brain syndrome, compensated well, and did not require treatment. Bot found fatigue, memory loss, and left chest pain, but could not say whether they were due to psychological factors.

Dr. Green, a psychiatrist, testified at the 1985 administrative hearing. He noted that the tests performed by Pollack and Roubus, suggesting significant depression, conflicted with Bot's conclusion that evidence of depression was insufficient to support a diagnosis. Green found Bot's assessments more compelling and concluded that any depression was mild and did not interfere significantly with Swenson's ability to work. Green acknowledged that the medical reports were replete with Swenson's subjective reports of a low energy level, but had no adequate explanation for Swenson's claimed low energy since Swenson's good performance on treadmill and cardiovascular tests indicated an absence of physical causes. Green further found that Swenson's ability to perform at a consistent pace without an unreasonable number and length of rest periods was moderately to markedly impaired.

ANALYSIS

I. Standard of Review

We review de...