Brett Schmasow v. MICHAEL J. ASTRUE, Commissioner Social Security Administration

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. Rule 36-3.
The Honorable Claudia Wilken, United States District Court Judge for**
the Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRETT SCHMASOW,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,
Defendant - Appellee.
No. 10-35277
D.C. No. 4:09-cv-00065-SEH-
RKS
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 4, 2010
Seattle, Washington
Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District Court
Judge.**
Brett Schmasow appeals the district court’s decision affirming an
administrative law judge’s (ALJ) termination of disability benefits after finding a
FILED
NOV 17 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

Page 2 of 4
closed period of disability from September 1, 2006 to February 25, 2008.
Schmasow argues that the evidence did not establish medical improvement related
to his ability to engage in substantial gainful activity. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and reverse.
The ALJ’s decision must be upheld if supported by substantial evidence and
if the ALJ applied the correct legal standards. Howard ex rel. Wolff v. Barnhart,
341 F.3d 1006, 1011 (9th Cir. 2003). Substantial evidence is more than a mere
scintilla but less than a preponderance. Id. at 1011 (internal quotation marks
omitted). “[A] reviewing court must consider the record as a whole and may not
affirm simply by isolating a specific quantum of supporting evidence. Robbins v.
Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006) (internal quotation marks
omitted).
Everyone agrees that Schmasow’s medical condition improved over the two
year period. See POMS DI 28010.105. Dr. Hinde’s February 26, 2008 treatment
note states that Schmasow’s condition had stabilized. But nothing suggests that
Schmasow then had the ability to engage in substantial gainful activity. Dr.
Hinde’s February 2008 treatment note is, at best, equivocal about Schmasow’s
ability to work, noting his continuing impairments and advising him to revisit
disability if not approved for benefits. Neither Dr. Schofield nor Dr. Kuka

-- 2 of 4 --

Page 3 of 4
provided substantial evidence to support the ALJ’s assessment of Schmasow’s
physical abilities. Neither of them examined Schmasow and neither identified
specific evidence in Dr. Hinde’s notes to support their opinions. See Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008); 20 C.F.R. §
404.1527(d)(3).
The ALJ also improperly discredited Schmasow’s testimony about the
extent and intensity of his impairments, particularly his inability to walk and stand
for long periods of time. Schmasow’s activities of daily living did not provide
clear and convincing reasons to discount his testimony about his physical
limitations. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Orn
v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
On the current record, the ALJ should have found that Schmasow’s
disability continued past February 25, 2008. At the hearing, the vocational expert
testified that if the ALJ credited Schmasow’s testimony, Schmasow would be
precluded from performing light, unskilled work and sedentary, unskilled jobs.
Where the record establishes that claimant could not perform even sedentary work,

-- 3 of 4 --

Nothing in our order precludes the Commissioner, at some future time,1
from initiating proceedings to review Schmasow's continued eligibility for
disability benefits. See 20 C.F.R. §§ 220.176, 220.180.
Page 4 of 4
there is no need for further proceedings. See Reddick v. Chater, 157 F.3d 715,1
728-29 (9th Cir. 1998).
We REVERSE and REMAND with instructions to the district court to
remand to the ALJ for an award of benefits.

-- 4 of 4 --