FILED
NOT FOR PUBLICATION NOV 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ANTHONY R. HUGHES, No. 09-36017
Plaintiff - Appellant, D.C. No. 3:07-cv-01850-JE
v.
MEMORANDUM *
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Submitted October 7, 2010**
Portland, Oregon
Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
Anthony R. Hughes ('Hughes') appeals from the district court's judgment
that affirmed the final decision by the Commissioner of Social Security
('Commissioner') denying Hughes's application for disability insurance benefits
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and supplemental security income under Title II of the Social Security Act. We
have jurisdiction pursuant to 28 U.S.C. y 1291, and we review de novo the district
court's judgment upholding the denial of benefits. Bray v. Comm'r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). We reverse and remand for a
payment of benefits.
The administrative law judge ('ALJ') erred by failing to provide specific
and legitimate reasons for rejecting the opinion of Hughes's treating physician, Dr.
Petterson. Generally, 'an ALJ may not reject the opinion of a treating physician,
even if it is contradicted by the opinions of other doctors, without providing
'specific and legitimate reasons' supported by substantial evidence in the record.'
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (quoting Reddicµ v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
Hughes's treating physician, Dr. Petterson, concluded that Hughes was
totally and permanently disabled due to his chronic pain syndrome. The ALJ
rejected the opinion of Dr. Petterson on the basis that it was too heavily based on
Hughes's subjective complaints and not supported by other medical evidence. Dr.
Petterson, however, properly distinguished Hughes's subjective complaints from
his own clinical findings. Ryan v. Commissioner, 528 F.3d 1194, 1199-1200 (9th
Cir. 2008). The record also revealed that Dr. Petterson's opinion was supported by
2
the medical findings of Drs. Sandefur and Zimmerman. Based on a careful
examination of the record in its entirety, we conclude that the ALJ did not provide
specific and legitimate reasons for rejecting the conclusion of Dr. Petterson, that
Hughes is disabled.
An ALJ may reject lay witness testimony 'only if [s]he gives reasons
germane to each witness whose testimony [s]he rejects.' Smolen v. Chater, 80
F.3d 1273, 1288 (9th Cir. 1996). In her findings, the ALJ dismissed the written
statements of Hughes's lay witnesses in a conclusory fashion and failed to provide
adequate reasons for discrediting each lay witness. In rejecting the lay witnesses'
written statements, the ALJ overlooµed concerns about Hughes's learning
disability, fatigue and physical limitations. Because the ALJ did not give specific
reasons supported by substantial evidence in the record, the ALJ erred in
disregarding the statements by Hughes's lay witnesses.
Next, Hughes contends that the ALJ's residual functional capacity ('RFC')
determination was inconsistent with the opinion of Hughes's treating physician and
observations of his lay witnesses. Dr. Petterson reported that Hughes suffered
from chronic pain, fatigue and was unable to perform low stress worµ. The ALJ,
however, neither included these limitations in his RFC nor properly provided
legitimate reasons why he rejected them, as he was required to do. See Widmarµ v.
3
Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Moreover, the ALJ only briefly
summarized the evidence presented by Hughes's lay witnesses and failed to
include their observations in the RFC. Accordingly, we conclude the ALJ erred in
failing to include in his RFC determination the limitations identified by Dr.
Petterson and Hughes's lay witnesses.
Hughes finally argues that the ALJ's hypothetical question to the vocational
expert was incomplete because it was based on an improper RFC. ' 'Hypothetical
questions posed to the vocational expert must set out all the limitations and
restrictions of the particular claimant . . .' ' Embrey v. Bowen, 849 F.2d 418, 422
(9th Cir. 1988). The ALJ posited that Hughes was able to perform simple, routine,
and repetitive worµ, which requires 'lifting twenty pounds on an occasional basis
and lifting ten pounds on a frequent basis.' This hypothetical did not adequately
account for all of the impairments that the ALJ found. In addition, because the
ALJ improperly rejected the opinions of Hughes's treating physician and lay
witnesses, 'the hypothetical posed to the vocational expert was legally
inadequate.' Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006).
We conclude that remand for calculation of benefits is appropriate because
the vocational expert's testimony established that had the limitations identified by
Dr. Petterson and Hughes's lay witnesses been adopted, a hypothetical individual
4
with Hughes's RFC would not have been capable of performing any of the jobs the
ALJ identified at Step 5. See Smolen, 80 F.3d at 1292 (holding that remand for an
award of benefits is appropriate 'where (1) the ALJ has failed to provide legally
sufficient reasons for rejecting [the] evidence, (2) there are no outstanding issues
that must be resolved before a determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required to find the claimant disabled
were [the] evidence credited'). As in Smolen, there are no remaining issues that
need to be resolved regarding Hughes's eligibility for benefits.
We therefore reverse the judgment of the district court and remand with
directions that the district court reverse the Commissioner's denial of benefits and
remand for the calculation and payment of benefits.
REVERSED AND REMANDED.
5
FILED
No. 09-36017, Hughes v. Astrue NOV 12 2010
MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent. The ALJ provided specific and legitimate reasons,
supported by substantial evidence, for rejecting the opinion of Hughes's treating
physician, Dr. Petterson. Dr. Petterson's opinion was not supported by medical
evidence and was contradicted by the opinions of other physicians. See Bayliss v.
Barnhart, 427 F. 3d 1211, 1216 (9th Cir. 2005). The ALJ noted that Dr.
Petterson's assessment that Hughes was completely disabled due to his chronic
pain syndrome contradicted his own treatment notes, which indicated that Hughes
did not experience a significant loss of strength or mobility and was able to
perform a range of daily activities including driving, walµing, and shopping. The
findings of the neurologists, Drs. Green and Haynes, which indicated that Hughes
suffered from only early stage spinal degenerative disease and mild carpal tunnel
syndrome, did not support Dr. Petterson's conclusions.
The ALJ provided specific and germane reasons for discrediting the
testimony of the lay witnesses Cindy Boyd, Hughes' computer instructor, and his
girlfriend, Lori Ann Jacµson. See Lewis v. Apfel, 236 F. 3d 503, 511 (9th Cir.
2001). The ALJ observed that their statements describing Hughes' pain, loss of
mobility, and poor concentration, contradicted evidence in the record that
suggested that he led a fairly active lifestyle. The ALJ did not fail to address the
testimony of Hughes' vocational counselor, Paige Grooms, as the claimant argues,
but rather acµnowledged Grooms' observations in her discussion of the records of
Mountain Valley Mental Health, where Grooms was employed
Because the ALJ provided adequate reasons for rejecting the statements of
Dr. Petterson and the lay witnesses, Hughes' residual functional capacity was
properly presented in the hypothetical question to the vocational expert.
I would affirm the decision to deny benefits.