Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
On Remand from the United States Supreme Court.
Before CANBY, RYMER and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
This case is now before us for decision on the merits, pursuant to the remand of the Supreme Court of the United States in Forney v. Apfel, 118 S.Ct. 1984 (1998). The argument before this court on November 8, 1996, addressed the merits as well as jurisdiction, and we therefore conclude that further argument is unnecessary upon this remand. The parties are familiar with the facts, so we will recite them in this memorandum only to the extent necessary.
We review de novo the district court's rulings. See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996). We affirm the rulings of the Secretary if they are supported by substantial evidence. Id .
1. Issues.
Forney contends that the ALJ erred when he (1) rejected the opinion of her treating physician; (2) rejected her subjective pain testimony; (3) rejected her husband's testimony without comment; and (4) presented a faulty hypothetical question to the vocational expert. We affirm in part, reverse in part, and remand.
2. Rejection of the Treating Physician's Opinion
The opinion of Dr. Cross, the treating physician, is entitled to greater weight than the opinion of a non-treating physician. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). His opinion can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record. See id. at 830-31. Here, Dr. Cross found that Forney could "work maybe two hours out of an eight hour day."
The ALJ discounted this evaluation by Dr. Cross, although he did not expressly reject the physical limitations otherwise described by Dr. Cross. We conclude that the reasons for rejecting Dr. Cross's two-hour-per-day work limitation were sufficiently specific and legitimate. First, the ALJ found that Dr. Cross' opinion was effectively modified by his later report "that [Forney's] condition has improved or stabilized." It is true that these reports followed Dr. Cross's reports of April and May 1993 that Forney's condition had worsened, but they nevertheless indicated a controlled condition.
The ALJ also noted that Dr. Cross's opinion was not recently rendered, and that it was inconsistent with a later assessment by Dr. Brennan. Although Dr. Brennan agreed with several of the physical limitations earlier described by Dr. Cross, she indicated in her assessment of work-related activities that Forney could stand or walk for 2-3 hours per day (15 minutes without interruption) and could sit for 6 hours per day (45 minutes without interruption).
Finally, Dr. Cross's two-hour-per-day limitation was conclusionary and was later admitted to be based on the subjective history given by Forney, rather than on clinical findings. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). In light of all of these factors, the ALJ could properly resolve the implicit inconsistencies by declining to accept Dr. Cross's two-hour-per-day limitation. We therefore affirm this ruling of the district court.
3. Rejection of Forney's Subjective Pain Testimony
Where, as here, there is medical evidence establishing an objective basis for a claimant's subjective pain, and "no evidence affirmatively suggesting that the claimant was malingering," the Secretary's reason for rejecting the testimony must be clear and convincing and supported by specific findings. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993). We conclude that the ALJ's reasons for rejecting Forney's pain testimony do not satisfy this standard.
Forney testified about her pain. She said that a "good day is more like having the flu and just being ache all over. The severest form is when ... the muscles are burning.... [I]t's always present. It's never gone anywhere." She said that she had to leave her job because she could not do the lifting, standing, or even simple book work. "All [she] could concentrate on was the pain."
The ALJ rejected Forney's subjective pain testimony because he did not find her to be a credible witness. It is true that an ALJ is not required to believe every allegation of disabling pain, "or else disability benefits would be available for the asking." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). But when, as here, none of the medical evidence supports a conclusion of malingering, a bare statement of incredibility does not suffice. See Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir.1984). The ALJ stated that Forney is "prone to exaggeration of her restrictions," but there is no support in any of the medical or lay evidence for this finding.
Nor is Forney's testimony regarding her daily activities inconsistent with the level of pain to which she testified. She testified that her pain intensified after periods of exertion. The fact that she could perform some light household chores on an interrupted basis is not sufficient to overcome her pain testimony; there was no "specific finding" that Forney was "able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting." Fair, 885 F.2d at 603; see Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir.1987).
The ALJ also discounted Forney's pain testimony in part because Forney's "demeanor at the hearing was not indicative of an individual who is experiencing disabling incapacity; she did not appear to be in pain or require a period in which to rest." But "[t]he fact that a claimant does not exhibit physical manifestations of prolonged pain at the hearing provides little, if any, support for the ALJ's ultimate conclusion that the claimant is not disabled or that his allegations of pain are not credible." Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir.1984).
For these reasons, we reverse the district court's ruling that the ALJ properly discounted Forney's subjective pain testimony. We remand to the district court so that the district court may include this issue in its remand to the Secretary.
4. Rejection of the Husband's Testimony
Disregard of the testimony of Forney's husband violates 20 C.F.R. § 404.1513(e)(2). See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996). See also Dodrill, 12 F.3d at 918. If the ALJ rejects lay witness testimony, the judge must give explicit reasons germane to each witness. Id. at 919. The ALJ cannot properly discredit the husband's testimony solely because Forney lacks credibility and the husband's testimony relies on Forney's subjective testimony. Id. at 918.
Here, the husband's testimony was rejected without comment. Forney's husband testified that Forney exhibits signs of pain and has limited functional abilities. He testified that Forney "hurts when she gets home [from shopping] and that's ... only approximately a mile away driving it." Although this testimony is quite limited, it supports Forney's pain testimony and it was disregarded without the required statement of reasons germane to the particular witness. The ALJ said only: "I find that the subjective reports of the claimant and her witness are not credibly supported by the weight of the evidentiary record." We therefore reverse the ruling of the district court on this point and remand so that this issue, too, may be returned to the Secretary for further proceedings.
5. Vocational Expert's Opinion
The ALJ asked the vocational expert to assume that Forney had the physical and mental limitations described by Drs. Brennan and Moulton. Hypothetical questions to vocational experts are proper when they set out all the limitations and restrictions of the particular claimant. See Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 578 (9th Cir.1988). In light of our ruling that the ALJ improperly discounted Forney's pain testimony, we reverse on this point as well so that the pain testimony may be taken into account in any further expert assessment of Forney's ability to fill particular jobs. Cf. Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1400 n. 4 (9th Cir.1988). Because the district court, in a ruling not appealed by the Secretary, held that the vocational expert's opinion improperly failed to consider Forney's inability to reach, new vocational testimony will be required in any event.
We therefore need not address Forney's argument that the vocational expert improperly contradicted the Dictionary of Occupational Titles and Selected Characteristics of Occupations, published by the Department of Labor, by neglecting the requirement of reaching for the occupations in issue.
6. Eligibility for Benefits
Forney contends that we should direct an award of benefits, instead of authorizing further proceedings before the Secretary. We decline to direct an award of benefits because the record is not sufficiently developed to permit us to conclude that, when the errors described above are corrected, Forney is necessarily entitled to disability benefits. The evidentiary foundation for such a conclusion has not been laid. See Varney, 859 F.2d at 1399-1401.
7. Conclusion
We affirm the ruling of the district court upholding the ALJ's partial discounting of the opinion of Dr. Cross, the treating physician. We reverse the rulings upholding the ALJ's discounting of the subjective pain testimony of Forney, and of the lay testimony of Forney's husband. We also reverse the ruling that the hypothetical question to the vocational expert adequately took into account Forney's limitations. The matter is remanded to the district court for further remand to the Secretary in accordance with this opinion. Forney is entitled to her costs on appeal.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
KLEINFELD, Circuit Judge, Dissenting.
Judge Kleinfeld dissents, and would remand with directions to affirm the ALJ's decision with respect to all four of the issues raised by Forney.