Macri v. Chater

WILLIAM A. NORRIS, Circuit Judge,

dissenting.

I dissent because the Administrative Law Judge (“ALJ”) committed two legal errors that require remand.

I

Macri contends that the ALJ’s findings rejecting his subjective pain testimony failed to meet the standard set forth in Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). In Dod-rill, we stated that “[i]f there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting that the claimant was malingering, the Secretary’s reason for rejecting the claimant’s testimony must be ‘clear and convincing,’ and supported by specific findings.” Id. at 918 (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989)). Further, “[fit’s not sufficient for the ALJ to make only general findings; he must state which pain testimony is not credible and what evidence suggests the complaints are not credible.” Id.

Here the ALJ rejected Macri’s subjective pain complaints without considering significant probative evidence and by relying on other evidence that was not probative. First, the ALJ considered only Maori’s pain testimony given at the hearing and disregarded without comment significant probative evidence of pain contained in Maori’s medical record. For example, on August 8, 1985, Dr. Prolo reported that Maori “cannot stand more than an hour,” and that “[h]e has pain in his right arm and all fingers bilaterally, low back pain into the right thigh, especially in the right knee and right foot.” [AR at 164], On June 2, 1986, Macri’s wife reported to Dr. Prolo that Macri stayed “in bed all the time because he felt so weak and so much in pain.” [AR at 161]. On October 31, 1986, Dr. Prolo reported that Macri “had low back pain constantly, into both lower limbs” and that “[h]e was unable to sit.” [AR at 161]. The ALJ’s failure to comment on any of this evidence “leaves this court with a record insufficient for a meaningful appellate review.” Burnett v. Bowen, 830 F.2d 731, *546736 (7th Cir.1987). “[T]o ensure meaningful appellate review at least a minimal level of articulation of the ALJ’s assessment of the evidence is required in cases in which evidence is presented to counter the agency’s position.” Id.

Second, the ALJ relied on the fact that Macri completed an electronics training course to discredit his subjective pain complaints. However, there is no logical nexus between the completion of an electronics course and an ability to perform light work, which includes lifting up to 20 pounds, frequently lifting up to 10 pounds, and “standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” Social Security Ruling 83-10; see also 20 C.F.R. § 404.1567(b) (1995). Because the record contains no evidence about the physical demands of the electronics course, Maori’s completion of the course says nothing about his ability to perform electronics assembly work for a full eight-hour workday, let alone his ability to perform light work generally. In fact, Dr. Hanbery reported in 1987 that Maori told him that he had attempted a job in this field but “after working there the first day realized that the amount of sitting that was required caused him to experience a marked increase in his low back pain. He tried the second day to report for that job but simply soon found that he could not do it_” [AR at 220].

In sum, the ALJ’s findings do not support his rejection of Macri’s subjective pain complaints. This error requires a remand because the pain reported by Macri, if believed, may require a finding that he is disabled. “ A man who cannot walk, stand or sit for over one hour without pain does not have the capacity to do most jobs available in the national economy.’ ” Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.1984) (quoting Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir. 1983)) (reversing denial of benefits because ALJ’s determination that claimant was able to perform light work was unsupported in light of pain evidence). Pain is a nonexer-tional limitation which is not included in the medical vocational guidelines. See Penny v. Sullivan, 2 F.3d 953, 958-59 (9th Cir.1993); Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985); 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(d), (e) (1995). If Macri’s subjective complaints of pain are credited, the Commissioner would need to call a vocational expert in order to carry her burden of showing that there are jobs in the national economy that Macri is capable of performing. See Penny, 2 F.3d at 959; Perminter, 765 F.2d at 872. This error requires a remand for reconsideration of Macri’s subjective complaints of pain in light of the evidence in the medical record, and without reliance on Ma-cri’s completion of the electronics course.

II

Macri contends that the ALJ committed a second error by rejecting the opinion of a treating physician without “makfing] findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir.1994) (quoting Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.1985)). The ALJ rejected without explanation the 1987 opinion of Dr. Hanbery that Macri was restricted from “prolonged standing or sitting,” and specifically, that “[t]he prolonged sitting required in electronic assembly work I think will preclude his entering into this type of employment.” Appellant’s Opening Br. at 6. The majority holds that the ALJ committed no error because “Dr. Hanbery first examined Macri on December 12, 1987,” one year after Macri’s disability insured status expired, and therefore Dr. Hanbery’s “opinion regarding Ma-cri’s condition prior to December 31, 1986 need not be afforded any more deference than that given to a non-treating physician with respect to Macri’s condition at that time.” In support, the majority relies on Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir.1989).

However, Magallanes is not apposite because it concerned a retrospective opinion, in which the treating physician opined that the claimant had become disabled two years before the physician first saw her. See Magallanes, 881 F.2d at 754. Dr. Hanbery’s 1987 opinion, in contrast, is not retrospective. It discusses Macri’s condition only in 1987, when Dr. Hanbery began treating Macri, and *547does not purport to discuss any earlier period. Thus the question is not whether Dr. Hanbery’s 1987 opinion must be afforded the deference given the opinion of a treating physician — it clearly must — but rather whether it is probative of Maeri’s condition in 1986.

On this record, Dr. Hanbery’s 1987 opinion is highly probative of Maeri’s condition in 1986 because of the evidence that Maeri’s condition did not change between December 1986 and December 1987. Indeed, the Commissioner herself argues that Maori’s condition did not worsen until 1988. Br. of Appel-lee at 14. Maori’s doctors reported no changes from 1986 through the end of 1987: on October 31, 1986, Dr. Prolo observed no material change in Maori’s condition; in May 1987, Dr. Prolo still reported no significant changes; in November 1987, Dr. Prolo again reported “no objective changes,” and noted that Dr. Silcox apparently “cannot find any either.” Br. of Appellee at 5-6.

Therefore, if the ALJ credited Dr. Han-bery’s opinion that Maori’s back condition in 1987 precluded prolonged sitting or standing, the ALJ would necessarily have to find that Maori’s back condition was the same in 1986 because it did not change in the intervening time. The ALJ may, of course, reject Dr. Hanbery’s opinion, but he may not do so “without providing ‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). In sum, the ALJ erred by rejecting Dr. Hanbery’s opinion without providing reasons.

Accordingly, the case must be remanded for consideration of the subjective complaints of pain contained in Maori’s medical record and Dr. Hanbery’s 1987 opinion.