Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999)

• Decision Date: 25 June 1999
• Docket Number: No. 97-36120,97-36120
• Parties: Richard TACKETT, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

180 F.3d 1094

Richard TACKETT, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.

No. 97-36120

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

April 16, 1999, Argued and Submitted,

June 25, 1999, Filed

Ralph Wilborn, Ralph Wilborn and Etta L. Wilborn, Eugene, Oregon, for the plaintiff-appellant.

Renee C. McFarland, Assistant Regional Counsel, Seattle, Washington, for the defendant-appellee.

Before: Harry Pregerson and David R. Thompson, Circuit Judges, and Barry T. Moskowitz, District Judge. *fn1 Opinion by Judge Pregerson.

PREGERSON, Circuit Judge:

In 1993, Richard Tackett applied for Social Security disability insurance benefits under 42 U.S.C. §§ 423(d) and 4169(i) of the Social Security Act. In his application, he alleged that he has been disabled since September 16, 1991. In March of 1995, the Administrative Law Judge (“ALJ”) determined that under the Guidelines *fn2 Tackett’s severe knee problems qualified him as disabled since his fiftieth birthday on February 7th, 1995, but that Tackett was not qualified as disabled from September 16, 1991 until February 6, 1995, the day before his fiftieth birthday.

Tackett appeals the ALJ’s decision to deny him benefits for the period from September 16, 1991 to February 6, 1995. He claims that the ALJ’s decision denying him benefits during that period is not supported by substantial evidence and is based on errors of law. The district court had jurisdiction pursuant to 42 U.S.C. § 405(g) and affirmed the denial of benefits for that period. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

I. Facts and Prior Proceedings.

Tackett has had problems with his knees for well over ten years. One of his treating physicians stated that Tackett’s left knee was “one of the worst knees” he had ever operated on. It is undisputed that Tackett is currently disabled. To determine whether Tackett was disabled before his fiftieth birthday, a review of the facts is necessary.

In 1988, Tackett had surgery on his right knee under the care of Dr. Michael Lawley. In 1991, he had surgery on his left knee, again under the care of Dr. Lawley. Dr. Lawley thought that Tackett would someday need total replacements of both knees and a hip replacement necessitated by his knee problems.

In September of 1991, Tackett lost his balance and fell while at work. After this accident, Tackett’s knee problems got so bad that he had to leave his job as a machinist. In 1994, Tackett took a job at ACE Hardware but could not manage the work because of his knees. He left after a month.

Based on these medical problems, Tackett filed an application for Social Security disability benefits on July 29, 1993, alleging that he has been disabled since September 16, 1991. The Commissioner of the Social Security Administration (“Commissioner”) denied both Tackett’s application and his request for reconsideration. See 20 C.F.R. §§ 404.901(a)(1)-(2), 404.907. Tackett timely requested and was granted a hearing before the ALJ. See 20 C.F.R. §§ 404.901(a)(3), 404.929-933. On March 21, 1995, the ALJ determined that Tackett became disabled under the Medical-Vocational Guidelines when he turned fifty on February 7, 1995, but that he was not disabled before he turned fifty.

Tackett requested that the Appeals Council review the ALJ’s decision insofar as it denied benefits from September 1991 to February 1995. See 20 C.F.R. § 404.901(a)(4). On May 30, 1996, the Appeals Council declined Tackett’s request for review. At this point, the ALJ’s ruling became the final decision of the Commissioner. See 20 C.F.R. § 404.981. Tackett then sought review in federal court. See 20 C.F.R. § 404.901(a)(5); 42 U.S.C. § 405(g). In accordance with 28 U.S.C. §§ 636(b)(1)(B) and (C), the district judge referred the matter to a magistrate judge. The magistrate judge recommended that the ALJ’s decision be affirmed because it was supported by substantial evidence and was free from errors of law. See 42 U.S.C. 405(g); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986) (“The Secretary’s decision denying benefits will be disturbed only if it is not supported by substantial evidence or based on legal error.”). The district court adopted the magistrate judge’s Report and Recommendation on October 30, 1997, and issued an order affirming the ALJ’s decision.

Tackett appeals the district court’s order affirming the ALJ’s decision. He contends that the ALJ’s decision to deny benefits from September 1991 to February 1995 was not supported by the evidence and was based on errors of law. We agree.

II. Standard of Review.

We review de novo the decision of the district court affirming the decision of the ALJ. See Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992). This court may set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record as a whole. See Penny v. Sullivan 2 F.3d 953, 956 (9th Cir. 1993); Matney, 981 F.2d at 1018.

Substantial evidence is defined as “more than a mere scintilla but less than a preponderance.” Matney, 981 F.2d at 1018 (internal quotations and citations omitted). “If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Id. But the Commissioner’s decision “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998). Rather, a court must “consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary’s conclusion.” Penny, 2 F.3d at 956.

III. Establishing Disability Under the Social Security Act.

To establish a claimant’s eligibility for disability benefits under the Social Security Act, it must be shown that: (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. See 42 U.S.C. § 423(d)(2)(A). If a claimant meets both requirements, he or she is “disabled.”

The Social Security Regulations set out a five-step sequential process for determining whether a claimant is disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. The burden of proof is on the claimant as to steps one to four.*fn3 As to step five, the burden shifts to the Commissioner. If a claimant is found to be “disabled” or “not disabled” at any step in the sequence, there is no need to consider subsequent steps. See id.

The five steps are:

Step 1. Is the claimant presently working in a substantially gainful activity? *fn4 If so, then the claimant is “not disabled” within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).

Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s impairment is severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c).

Step 3. Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant’s impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d).

Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(e).

Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. See id.

A. Steps One and Two are Not in Dispute.

The ALJ found that Tackett had not engaged in substantial gainful activity since September 16, 1991. The ALJ also found that Tackett had “severe impairments due to degenerative joint disease of both knees.” Consequently, Tackett met steps one and two. We proceed to step three.

B. Step Three: The ALJ’s Determination that Tackett’s Impairments Did Not Meet or Equal a Listed Impairment is Supported by Substantial Evidence.

At step three, the ALJ determines if a claimant’s impairment meets or equals an impairment listed in Appendix 1 to Subpart P of...