Berry v. Astrue

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANIEL BERRY, 
Plaintiff-Appellant, No. 09-35421
v.
 D.C. No.
3:08-cv-05149-FDB
MICHAEL J. ASTRUE, Commissioner
of Social Security, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, Senior District Judge, Presiding

Argued and Submitted
March 5, 2010—Seattle, Washington

Filed September 22, 2010

Before: A. Wallace Tashima, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher

16051
16054 BERRY v. ASTRUE

COUNSEL

Charles W. Talbot, Tacoma, Washington, for the appellant.

Jeffrey C. Sullivan, United States Attorney, Brian C. Kipnis,
Assistant United States Attorney, David Morado, Regional
Chief Counsel and L. Jamala Edwards (argued), Assistant
Regional Counsel, Social Security Administration, Office of
General Counsel, Seattle, Washington, for the appellee.

OPINION

FISHER, Circuit Judge:

In September 2005, Daniel Berry, a military veteran and
former commercial courier driver born in 1959, filed a claim
for disability insurance benefits under 42 U.S.C. § 423 and
supplemental security income benefits under 42 U.S.C.
§ 1382. His claim was denied upon a finding that he could
return to his past relevant work and therefore was not dis-
abled. That finding was based in part on the conclusion that
whether Berry could pass a drug test was irrelevant to the
determination of disability, even if Berry could prove that he
needed to be able to pass such a test to perform his past rele-
vant work. We disagree with that conclusion and therefore
remand for further administrative proceedings.

Background

Before his alleged disability, Daniel Berry worked about 14
years as a military communications and computer supervisor,
followed by about 6 years as a courier driver. He left his job
as a courier driver on June 10, 2000.
 BERRY v. ASTRUE 16055
As a veteran, Berry sought treatment for various medical
conditions through the Department of Veterans Affairs (VA).
In September 2001, the VA determined that Berry was “enti-
tled to individual unemployability” status as of July 1, 2000,
finding that his “main difficulty with unemployment is his
pain regime and that potential employers would not tend to
hire him due to his inability to pass a drug test due to his pain
medications, abnormal gait and limitations due to his service
connected low back disability.”

Berry applied for social security disability benefits in Sep-
tember 2005. He claims that he has been disabled since his
last date of employment as a courier driver in June 2000 and
that his disability is a result of chronic low back pain, degen-
erative disk disease, degenerative arthritis on both hips, bilat-
eral knee degeneration, sleep apnea, depression, diabetes,
obesity, hearing loss, hemorrhoids and night sweats. After the
Social Security Administration (SSA) denied his claim, Berry
sought and obtained a hearing before an Administrative Law
Judge (ALJ).

At his hearing in July 2007, Berry argued that he could not
return to his past relevant work as a courier driver because
that job has a mandatory drug testing requirement that his pre-
scribed pain medications would cause him to fail. The ALJ
observed that the general job description in the Dictionary of
Occupational Titles (DOT) does not mention a drug testing
requirement and declined as “irrelevant” Berry’s offer to
prove that the job carries such a requirement in practice. Nor
did the ALJ consider whether, if such a requirement exists,
Berry was physically capable of meeting it.

In a decision dated September 12, 2007, the ALJ performed
a sequential evaluation and determined that Berry was not dis-
abled. See 20 C.F.R. 404.1520 (describing the five-step
sequential evaluation for assessing disability claims). At step
one, the ALJ found that Berry had not engaged in substantial
gainful activity since June 2000. At step two, he found that
16056 BERRY v. ASTRUE
Berry had one medically determinable impairment that signif-
icantly limited his ability perform basic work activities: lower
back pain. The ALJ also considered and rejected Berry’s
claims that several other conditions impaired his ability to
work. At step three, the ALJ determined that Berry’s qualify-
ing impairment does not meet the criteria to establish disabil-
ity automatically, regardless of age, education or work
experience. In order to determine at step four whether Berry
could return to his past work, the ALJ performed a residual
functional capacity (RFC) analysis. During that analysis, the
ALJ discounted some of Berry’s subjective complaints about
the effects of his lower back pain, finding them inconsistent
with some of his self-reported activities. Having completed
his RFC findings, the ALJ found that Berry could return to his
past work as a courier notwithstanding his functional limita-
tions. The ALJ therefore found that Berry was not disabled,
without reaching step five.

Berry appealed the ALJ’s decision to the district court. The
district court affirmed the ALJ, adopting over Berry’s objec-
tions a magistrate judge’s report and recommendation. This
appeal followed.

Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s judgment upholding the denial of
social security benefits. Bray v. Comm’r of Soc. Sec. Admin.,
554 F.3d 1219, 1222 (9th Cir. 2009). We will “set aside a
denial of benefits only if it is not supported by substantial evi-
dence or is based on legal error.” Id. (quoting Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

Discussion

I.

Berry argues that the ALJ erred by finding that Berry could
return to his past work regardless of whether that work has a
 BERRY v. ASTRUE 16057
drug testing requirement that he could not meet because of his
prescription pain medication. We agree with Berry. If a drug
prescription disqualifies a claimant from performing his past
relevant work, he is not capable of returning to that work.
Therefore, the ALJ erred by precluding Berry from making a
record whether his medically required need to take prescrip-
tion drugs would bar him from working as a courier.

[1] The SSA’s regulations explain that “[a]t the fourth
step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your
past relevant work, we will find that you are not disabled.” 20
C.F.R. § 404.1520(a)(4)(iv). To make this determination, the
SSA “will compare [its] assessment of your residual func-
tional capacity with the physical and mental demands of your
past relevant work.” Id. § 404.1560(b); see also id.
§ 404.1520(f) (same); Social Security Ruling 82-62, 1982 WL
31386, at *2 (explaining that step four “requires careful con-
sideration of the interaction of the limiting effects of the per-
son’s impairment(s) and the physical and mental demands of
his or her [past relevant work] to determine whether the indi-
vidual can still do that work”). Generally, a claimant who is
physically and mentally capable of performing past relevant
work is not disabled, whether or not he could actually obtain
employment. See 42 U.S.C. 423(d)(2)(A) (requiring that
claimant’s disability be determined “regardless of . . . whether
he would be hired if he applied for work”).

[2] Applying this requirement, the ALJ and the district
court concluded that any requirement that couriers be free (or
nearly free) of prescription pain medication would be a mere
hiring practice, relevant to whether Berry could obtain his
past work but not relevant to whether he could perform it —
i.e., not a “physical [or] mental demand” of the work and
therefore not relevant to the disability determination. In par-
ticular, the ALJ observed (accurately) during the hearing that
the DOT job description for couriers does not include the abil-
ity to pass a drug test as a requirement of the job, see DOT
16058 BERRY v. ASTRUE
230.663-010, 1991 WL 672160, and the magistrate judge, in
the report the district court adopted, expressly concluded that
inability to pass a drug test “is not the kind of work-related
(i.e., physical or mental) limitation or restriction the Social
Security regulations contemplate.” The Commissioner so
argues on appeal.

[3] We reject these restricted readings of the law. If it is
true, as Berry offered to prove, that Berry’s prescribed medi-
cation regime to treat his potentially disabling condition
would categorically prevent him from obtaining work as a
courier by rendering him physically unable to pass a drug test
that is mandatory across employers, then he cannot meaning-
fully be said to be capable of working as a courier. A manda-
tory requirement that employers cannot hire people with a
certain level of pain medication in their blood is in essence a
physical demand of the job. The ALJ was not permitted to
ignore the possibility that such a mandatory requirement
exists, in the face of Berry’s offer of proof, merely because
no such physical demand appears in the DOT.

[4] A mandatory drug testing requirement of the kind
Berry alleges is not a mere hiring practice that is irrelevant to
the determination of disability. Under 42 U.S.C. § 423
(d)(2)(A), an individual is disabled “only if his physical or
mental impairment [is] of such severity that he is . . . unable
to do his previous work [or] engage in any other kind of sub-
stantial gainful work . . . regardless of . . . whether he would
be hired if he applied for work.” The language excluding con-
sideration of whether a claimant who sought work would in
fact be hired cannot be construed to include a hiring practice
that is directly tied to the claimant’s disability. Otherwise, the
limiting language would defeat the entire statutory scheme,
which provides benefits for individuals who cannot work due
to a disability. This understanding of the statute — as
intended to exclude from consideration “employer prefer-
ences” not directly related to a “medically determinable phys-
ical or mental impairment” — is consistent with its legislative
 BERRY v. ASTRUE 16059
purpose. See S. Rep. No. 90-744, at 41 (1967), reprinted in
1967 U.S.C.C.A.N. 2834, 2882; cf. Sorenson v. Weinberger,
514 F.2d 1112, 1117-19 (9th Cir. 1975) (per curiam) (inter-
preting the amended definition of disability and affirming
denial of disability benefits to a claimant for whom substan-
tial evidence supported the determination that he was physi-
cally and mentally able to work even though he “ha[d] not
been released by medical doctors to return to work”).1

The alleged drug-testing requirement in this case is not a
mere hiring practice. First, Berry has offered to prove that the
drug testing is imposed on employers of courier drivers by
statute and so is not merely an elective hiring preference.2
1
Thus, for example, as we recently concluded in a nonprecedential deci-
sion, a claimant physically and mentally capable of performing his past
work as a security guard cannot defeat a finding of nondisability by argu-
ing that his criminal record will prevent him from obtaining that work. See
Hunter v. Astrue, 254 Fed. App’x 604 (9th Cir. 2007).
2
In particular, Berry argues that federal and state laws require applicants
for a Commercial Driver’s License (CDL) to pass drug tests, and that he
would need a CDL to work as a courier driver. The DOT includes Berry’s
past work as a courier driver under its definition of a broad category of
jobs it labels “deliverer, outside,” not all of which involve driving, not to
mention requiring a CDL. See DOT 230.663-010 (defining the job to
include “[d]eliver[ing] . . . items to business establishments and private
homes, traveling on foot or by bicycle, motorcycle, automobile, or public
conveyance”). Relying on this broad definition, the Commissioner of
Social Security argues that we should affirm the finding of nondisability
because Berry can return to his past relevant work as generally performed,
even if he may not be able to return to his actual previous job as a courier
driver of commercial vehicles. See generally Social Security Ruling 82-
61, 1982 WL 31387 (stating the policy that a claimant will be found not
disabled at step four if he or she can perform either “(1) [t]he actual func-
tional demands and job duties of a particular past relevant job; or (2) [t]he
functional demands and job duties of the occupation as generally required
by employers throughout the national economy”). We are not persuaded.
Even if Berry retains the RFC to perform delivery work without a CDL,
the ALJ did not make findings sufficient to support that conclusion. Given
Berry’s claims of lower back pain, for example, it is not self-evident that
he could travel “on foot or by bicycle [or] motorcycle,” as a non-driver
courier might. That leaves only courier service by “public conveyance,”
which does not likely constitute performance “as generally required by
employers.” In any case, Berry was not given a sufficient opportunity to
establish a record on this issue.
16060 BERRY v. ASTRUE
Second, the level of pain medication in Berry’s system as a
result of his prescribed treatment regime is a direct physical
consequence of his impairment, its related symptoms
and his physician-prescribed treatment. See 20 C.F.R.
§ 404.1545(a)(1) (“Your impairment(s), and any related
symptoms, such as pain, may cause physical and mental limi-
tations that affect what you can do in a work setting. Your
residual functional capacity is the most you can still do
despite your limitations.”); 20 C.F.R. § 404.1529(c)(3)
(“Factors relevant to your symptoms, such as pain, . . . include
. . . [t]he type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or
other symptoms.”). Third, in this context the alleged drug-
testing requirement appears on its face directly related to a job
applicant’s ability safely to meet the physical and mental
demands of the job — there is no indication yet in the record
that it serves a hiring preference distinct from the physical and
mental demands of the job. In these circumstances, when the
alleged requirement is mandatory and closely related to the
physical and mental demands of the job as employers under-
stand them, and Berry’s inability to meet it is a direct physical
result of prescribed medical treatment for an acknowledged
impairment, the alleged requirement cannot be disregarded as
a mere hiring preference.

[5] The district court also relied on the lack of evidence in
the record that courier driver jobs carry a mandatory drug test-
ing requirement or that Berry would be unable to pass such
a test. Although the claimant bears the burden at step four to
show he is unable to return to his past relevant work, see Val-
entine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th
Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir.
1999), it was error to fault Berry for failing to meet that bur-
den when he was prevented from presenting relevant evidence
because of the ALJ’s legal error. In particular, Berry offered
to submit evidence that the DOT job description was out of
date and that “in today’s environment . . . drug testing is
essentially a mandatory requirement” for courier drivers. The
 BERRY v. ASTRUE 16061
ALJ refused to consider whether Berry was correct, specifi-
cally opining that he need not consider “today’s environment”
because “the regulations tell me to look at the DOT” and
“don’t say anything about what’s going on in the world
today.” This refusal was based on a legally erroneous reading
of the regulations, and Berry must be permitted to prove his
contention that drug testing requirements make it physically
impossible for him to perform his past relevant work.

[6] We therefore vacate the ALJ’s finding of nondisability
and remand for further administrative proceedings. On
remand, the ALJ may reconsider Berry’s RFC, including
whether the amount of prescribed medication in his system
would render him physically unable to pass a drug test,
assuming Berry can establish that his past relevant work car-
ries a mandatory drug testing requirement.3

II.

Berry raises several other arguments related to the ALJ’s
evidentiary decisions, adverse credibility finding, RFC deter-
mination and decision to disagree with the VA’s determina-
tion that Berry was disabled. Although our broad remand
leaves the ALJ free to revisit these rulings, in the interest of
efficiency we address Berry’s arguments to the extent they
may be relevant on remand.

A.

First, Berry contends that the ALJ erred in finding Berry’s
subjective complaints about the intensity, persistence and lim-
3
Berry also contends that the ALJ abused his discretion by refusing to
allow Berry to cross-examine the vocational expert about whether there
are mandatory drug testing requirements for courier drivers. Given our
remand for a new hearing, we need not resolve this claim. On remand,
Berry must be given a chance to prove that he is unable to return to his
past work.
16062 BERRY v. ASTRUE
iting effects of his symptoms “not entirely credible.” The ALJ
found that Berry suffers from lower back pain and that this
“medically determinable impairment could reasonably be
expected to produce the alleged symptoms,” but ultimately
rejected Berry’s complaints of subjective side effects from
pain medication, such as dizziness, lack of focus and confu-
sion, because of inconsistencies between Berry’s complaints
and reported activities.

“Once the claimant produces medical evidence of an under-
lying impairment, the Commissioner may not discredit the
claimant’s testimony as to subjective symptoms merely
because they are unsupported by objective evidence.” Lester
v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Instead, “for the
ALJ to reject the claimant’s complaints, the ALJ must provide
specific, cogent reasons for the disbelief.” Bruton v. Massa-
nari, 268 F.3d 824, 828 (9th Cir. 2001) (quoting Lester, 81
F.3d at 834) (internal quotation marks and alterations omit-
ted). “General findings are insufficient; rather, the ALJ must
identify what testimony is not credible and what evidence
undermines the claimant’s complaints.” Lester, 81 F.3d at
834.

The ALJ concluded that Berry was not entirely credible
because he found contradictions between complaints in
Berry’s 2005 activity questionnaire and hearing testimony and
some of his other self-reported activities. On the one hand,
some of Berry’s statements supported his hearing testimony
that his ability to perform activities of daily living was
severely limited because he could sit or drive for only one
hour at a time before needing to lie flat on his back for 30 to
60 minutes, he had to rely on a roommate to handle cleaning
and laundry and his only social activities outside the house
were doctors’ appointments and occasional meetings of an
amateur radio club. In particular, Berry said in the question-
naire that he had difficulty putting on shoes and getting in and
out of the bathtub, relied on friends to remember “to care for
. . . personal needs” and had a limited ability to “remember,
 BERRY v. ASTRUE 16063
complete tasks, concentrate, understand [and] follow instruc-
tions.” Berry also indicated on the questionnaire that “without
[pain] drugs — the pain would prohibit most of [his reported
activities]” but that he could “do most, with limits — with . . .
pain meds . . . although sometimes in a stupor.”

On the other hand, some of Berry’s other self-reported
activities and self-evaluations suggested a higher degree of
functionality. In particular, Berry’s VA medical records from
the period between 2000 and 2006 reflect that he told medical
staff he engaged in daily walks of a mile or more, had various
social engagements, drove his car and did crossword puzzles,
computer work, pet care, cooking, laundry and other house-
keeping. Berry also reported camping and hiking at Yellow-
stone National Park and “getting out a little bit more
socially,” and according to a 2005 VA physician’s report he
described a typical day that tended to contradict his hearing
testimony that he regularly needed to lie flat on his back and
relied on friends for cooking and cleaning. Finally, the ALJ
pointed to affirmative evidence of malingering, including that
Berry reported that he wanted to do volunteer work but
refrained for fear of impacting his disability benefits, and
claimed disability dating from his last day of employment
even though he admitted at the hearing that he left his job
because his employer went out of business and probably
would have worked longer had his employer continued to
operate.

[7] The ALJ found that these self-reported activities under-
mined Berry’s credibility and suggested a “greater functional
capacity” than Berry claimed in his 2005 activities question-
naire and hearing testimony. Based on the evidence reviewed
above, we agree that the inconsistencies in Berry’s reported
symptoms and activities adequately support the ALJ’s adverse
credibility finding and justify his decision to discount some of
Berry’s subjective complaints. See Bray, 554 F.3d at 1227
(“In reaching a credibility determination, an ALJ may weigh
consistencies between the claimant’s testimony and his or her
16064 BERRY v. ASTRUE
conduct, daily activities, and work record, among other fac-
tors.”).

B.

Second, Berry contends that the ALJ failed to fully con-
sider the effects of Berry’s multiple narcotic pain medications
on his ability to function. When analyzing symptoms related
to a medical impairment, the regulations promise that the ALJ
will consider “[t]he type, dosage, effectiveness, and side
effects of any medication [claimant] take[s] or ha[s] taken to
alleviate . . . pain.” 20 C.F.R. § 404.1529(c)(3)(iv). The
record shows that the ALJ considered some side effects from
medication, such as visual dreams, erectile dysfunction and
dizziness. The ALJ also acknowledged but discounted as “not
fully credible” Berry’s complaint “that his pain medications
caused some mental confusion and affected his balance.” On
this record, we cannot say that the ALJ failed even to consider
the effects of Berry’s pain medications on his ability to func-
tion. Nonetheless, as explained above, the ALJ is free on
remand to revisit his RFC determination, including further
considering whether the type and dosage of Berry’s pain med-
ications render him incapable of meeting the physical and
mental demands of his past work as a courier, such as the
ability to meet a mandatory drug-testing requirement, if such
a requirement exists.

C.

Third, Berry contends that the ALJ erred by failing to
include all of Berry’s limitations in the hypothetical to the
vocational expert (VE). We do not resolve this claim. It does
not appear that the step four determination that Berry chal-
lenges was based on the VE’s testimony, and in any event,
whether or not the ALJ’s hypothetical was consistent with the
RFC determination the ALJ previously relied on, the ALJ will
be free on remand to reassess Berry’s RFC and to hear further
testimony from a VE or other sources.
 BERRY v. ASTRUE 16065
D.

Finally, Berry contends that the ALJ improperly disre-
garded the VA’s decision that Berry was completely disabled
as of July 1, 2000. A VA determination of disability is “ordi-
narily” entitled to “great weight,” but an ALJ may “give less
weight to VA disability rating if he gives persuasive, specific,
valid reasons for doing so that are supported by the record.”
Valentine, 574 F.3d at 694-95 (quoting McCartey v. Massa-
nari, 298 F.3d 1072, 1076 (9th Cir. 2002)) (internal quotation
marks omitted).

The ALJ gave three reasons for “discounting” the VA
determination. We reject two of them and accept the third in
part. First, the ALJ noted that the SSA is not bound by the
VA’s determination because the governing rules differ. This
is not a “persuasive, specific, valid reason[ ]” for discounting
the VA determination. See Valentine, 574 F.3d at 695
(“Insofar as the ALJ distinguished the VA’s disability rating
on the general ground that VA and SSA disability inquiries
are different, her analysis fell afoul of McCartey.”). Second,
the ALJ gave “no weight” to the VA’s finding that the claim-
ant was unemployable because the VA based its disability
determination in part on the fact “that potential employers
would not tend to hire [Berry] due to his inability to pass a
drug test due to his pain medications,” a matter the ALJ con-
sidered irrelevant to the social security disability determina-
tion. Because we disagree with that consideration, we also
reject this basis for discounting the VA’s disability determina-
tion as invalid and unpersuasive.

[8] Third, the ALJ acknowledged the VA’s determinations
that Berry’s sleep apnea and back pain (as distinct from the
effects of pain medication to control that pain) were at least
partially disabling, but disagreed with that determination, cit-
ing medical evidence that the apnea was “adequately con-
trolled” and the “back pain appear[ed] stable with pain
medication.” Elsewhere in his decision, the ALJ reviewed in
16066 BERRY v. ASTRUE
detail medical records related to Berry’s sleep apnea and back
pain. The medical records on which the ALJ relied specifi-
cally support his conclusion that Berry’s sleep apnea had
improved since the VA’s disability determination and was
well controlled by the prescribed treatment, resulting in “min-
imal functional limitations due to sleep apnea” by the time the
hearing occurred. They also support the ALJ’s conclusion that
Berry’s pain — as distinct from the effects of medication to
control that pain — was adequately controlled with medica-
tions so as not to be completely disabling. The ALJ’s assess-
ment of these specific records is both persuasive and valid.
We therefore conclude that the ALJ’s reasons for disagreeing
with the VA about the disabling effects of these particular
impairments are sufficiently “persuasive, specific, valid [and]
supported by the record.” Valentine, 574 F.3d at 695 (quoting
McCartey, 298 F.3d at 1076) (internal quotation marks omit-
ted). They do not, however, represent a complete basis for
discounting the VA’s disability determination. Accordingly,
the ALJ on remand should reconsider with appropriate defer-
ence the effect, if any, of the other bases for the VA’s disabil-
ity determination.

Conclusion

[9] The judgment of the district court is reversed and the
matter is remanded to the district court with instructions to
remand to the Commissioner for further administrative pro-
ceedings. Consistent with this opinion, the ALJ’s determina-
tion that Berry is not disabled is based on legal error and is
therefore vacated. Appellee shall bear the costs of the appeal,
to the extent authorized by law.

AFFIRMED IN PART, REVERSED IN PART and
REMANDED.