United States v. 2006-10-26 | 04-35890 | ROBBINS VSOCIAL SECURITY ADMINISTRATION | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LEROY J. ROBBINS, No. 04-35890
Plaintiff-Appellant, D.C. No.
v.  CV-03-00615-ALH
SOCIAL SECURITY ADMINISTRATION, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted December 9, 2005*
Portland, Oregon
Filed October 27, 2006
Before: James R. Browning, Dorothy W. Nelson, and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge Browning;
Dissent by Judge O’Scannlain
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
David B. Lowry, Portland, Oregon, for the appellant.
David M. Blume, Assistant Regional Counsel, Seattle, Wash-
ington, for the appellee.
OPINION
BROWNING, Circuit Judge:
Leroy J. Robbins appeals an affirmance of the Commis-
sioner of Social Security’s partial denial of benefits. We have
jurisdiction to review under 28 U.S.C. § 1291. We reverse and
remand because the Commissioner’s decision is not supported
by substantial evidence.
I. Background
In October 1996, Robbins filed applications for supplemen-
tal security income and disability insurance benefits. He
alleged he has been disabled since August 1993 by depression
and severe impairments to his neck, left shoulder, back and
knees. After his applications were denied initially and upon
reconsideration, Robbins requested and was granted a hearing
in March 1999 before Administrative Law Judge (“ALJ”)
Eileen Burlison during which the August 1998 testimony of
Robbins and his son Rodney were accepted into the record.
Judge Burlison denied Robbins’s claims and, in August, 2000,
the Social Security Appeals Council denied his request for
review. Robbins then filed a complaint for review with the
district court.
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In August 2001, based on a stipulation by the parties, the
district court reversed Judge Burlison’s determination. The
district court ordered the ALJ on remand to: order and evalu-
ate a consultative exam as to Robbins’s mental impairment
claim; hold a new hearing; reevaluate the credibility of Rob-
bins and of other lay testimony; and reevaluate Robbins’s
residual functional capacity (“RFC”) and ability to perform
past relevant or other work. In February 2003, a second hear-
ing was conducted by Administrative Law Judge Riley
Atkins, who found Robbins disabled as of September 7, 1998,
but not before. Because Robbins did not file a written chal-
lenge to this decision, Judge Atkins’s determination became
the Commissioner’s final decision.
In March 2003, Robbins filed a complaint for review with
the district court challenging this partial denial of benefits. In
September 2004, the district court affirmed the Commission-
er’s decision. Robbins timely appeals that judgment, challeng-
ing the ALJ’s determinations at steps four and five of the
Commissioner’s five-step sequential evaluation process for
determining if a claimant is disabled.1
II. Analysis
A. Standard of Review
We review de novo the findings of the district court. Flaten
v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th
Cir. 1995). We may set aside a denial of benefits only if it is
not supported by substantial evidence or is based on legal
error. Id. “Substantial evidence” means more than a mere
scintilla, but less than a preponderance, i.e., such relevant evi-
dence as a reasonable mind might accept as adequate to sup-
port a conclusion. Young v. Sullivan, 911 F.2d 180, 183 (9th
Cir. 1990). If the evidence can support either affirming or
1The five-step sequential evaluation is detailed at 20 C.F.R.
§§ 404.1520; 416.920.
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reversing the ALJ’s conclusion, we may not substitute our
judgment for that of the ALJ. Flaten, 44 F.3d at 1457. How-
ever, a reviewing court must consider the entire record as a
whole and may not affirm simply by isolating a “specific
quantum of supporting evidence.” Hammock v. Bowen, 879
F.2d 498, 501 (9th Cir. 1989).
B. RFC Determination
As part of his step four determination, the ALJ determined
Robbins’s RFC. See 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1545; Soc. Sec. Ruling 96-8p (July 2, 1996) (“SSR 96-
8p”), 1996 WL 374184. The ALJ found Robbins was capable
of: (1) “ ‘less than a wide or full range of Medium’ exertion
with Postural and Manipulative non-exertional limitations”
from his alleged August 1993 onset date through September
6, 1998; and (2) from September 7, 1998 on, “ ‘less than a
wide or full range of Light’ exertion, requiring a ‘sit-stand-
walk option’ ” in addition to the same, additional non-
exertional limitations.
At step five, the ALJ found that, for the period between
August 1993 and September 6, 1998, Robbins was not dis-
abled. This conclusion relied on testimony of a vocational
expert at the February 2003 hearing that because, based on his
determined “medium” RFC, Robbins had been capable of
working as a “general clerk” or “security or gate guard,” posi-
tions that had existed in significant numbers in the national
economy during that time. Based on similar testimony and the
determined “light” RFC, the ALJ found Robbins was disabled
as of September 7, 1998.
1. Adverse Credibility Finding
[1] In determining a claimant’s RFC, an ALJ must consider
all relevant evidence in the record, including, inter alia, medi-
cal records, lay evidence, and “the effects of symptoms,
including pain, that are reasonably attributed to a medically
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determinable impairment.” See SSR 96-8p, 1996 WL 374184,
at *5; accord 20 C.F.R. §§ 404.1545 (a)(3), 416.945(a)(3).
Moreover, SSR 96-8p directs that “[c]areful consideration” be
given to any evidence about symptoms “because subjective
descriptions may indicate more severe limitations or restric-
tions than can be shown by medical evidence alone.” See SSR
96-8p, 1996 WL 374184, at *5. When giving such consider-
ation, if the record establishes the existence of a medically
determinable impairment that could reasonably give rise to
the reported symptoms, an ALJ must make a finding as to the
credibility of the claimant’s statements about the symptoms
and their functional effect. See Soc. Sec. Ruling 96-7p (July
2, 1996) (“SSR 96-7p”), 1996 WL 374186, at *1; 20 C.F.R.
§§ 404.1529, 416.929; Smolen v. Chater, 80 F.3d 1273, 1281
(9th Cir. 1996).
While an ALJ may find testimony not credible in part or in
whole, he or she may not disregard it solely because it is not
substantiated affirmatively by objective medical evidence. See
SSR 96-7p, 1996 WL 374186, at *1; Light v. Soc. Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997). Moreover, unless
an ALJ makes a finding of malingering based on affirmative
evidence thereof, he or she may only find an applicant not
credible by making specific findings as to credibility and stat-
ing clear and convincing reasons for each. See Smolen, 80
F.3d at 1283-84 (“Once a claimant meets the Cotton test and
there is no affirmative evidence suggesting she is malinger-
ing, the ALJ may reject the claimant’s testimony regarding
the severity of her symptoms only if he makes specific find-
ings stating clear and convincing reasons for doing so.”).
[2] In this case, there is no dispute that the record estab-
lishes the existence of impairments to Robbins’s shoulder,
back and knees as of August 1993, which could have given
rise to the severe pain and functional limitations between that
date and September 1998, to which Robbins testified in his
record affidavit. As a result, the ALJ was required to make a
credibility finding as to Robbins’s own testimony. Because
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the ALJ made no finding that Robbins was malingering, he
was required to give clear and convincing reasons in support
of his adverse credibility finding. Id.
The record shows that the ALJ found Robbins’s testimony
to be “not entirely credible.” Reading the ALJ’s fleeting cred-
ibility finding in the best light, he offers the following as justi-
fication: First, Robbins’s testimony was “not consistent with
or supported by the overall medical evidence of record”; sec-
ond, “his testimony regarding his alcohol dependence and
abuse problem remains equivocal, based on his conflicting
testimony and reports to doctors of maintaining sobriety, ver-
sus continuing to drink in lesser amounts.”
[3] Taking the latter first, we do not consider a cursory
finding that a single line of testimony is “equivocal” sufficient
to constitute substantial evidence. While conflicting or incon-
sistent testimony concerning alcohol use can contribute to an
adverse credibility finding, see, e.g., Verduzco v. Apfel, 188
F.3d 1087, 1089 (9th Cir. 1999) (finding applicant’s testi-
mony not credible where there was evidence of malingering
and where the testimony and “various statements regarding
his drinking were not consistent”), in this case it cannot jus-
tify such a finding alone and without further corroboration or
explanation.2
2Indeed, with no reference to the record in this part of the decision, we
are left to guess what testimony the ALJ was considering and why he
thought it undermined Robbins’s credibility. Our thorough review of the
record shows one potential conflict in Robbins’s self-reporting of his alco-
hol use. On November 12, 1996, an examiner noted that Robbins “occa-
sionally drinks now, but stated that he did have a problem with alcohol.”
Four days later, another examiner recorded “The claimant has been drink-
ing up to a case a day. This drinking escalated beginning in 1988.” How-
ever, it is not immediately clear whether the “case a day” reference
concerns contemporary consumption or the earlier period of heavier drink-
ing Robbins was describing. Regardless, taken as a whole, the record sug-
gests that Robbins had a history of excessive alcohol use, punctuated by
periods of sobriety followed by relapse, and generally had “poor insight
into his alcoholic problems.”
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[4] As for the former justification, it is exactly the type we
have previously recognized the regulations prohibit. See SSR
96-7p, 1996 WL 374186, at *1; Light, 119 F.3d at 792 (“In
this case, the ALJ disbelieved Light because no objective
medical evidence supported Light’s testimony regarding the
severity of subjective symptoms from which he suffers, par-
ticularly pain. An ALJ may not discredit a claimant’s subjec-
tive testimony on that basis. To find the claimant not credible,
the ALJ must rely either on reasons unrelated to the subjective
testimony (e.g., reputation for dishonesty), on conflicts
between his testimony and his own conduct, or on internal
contradictions in that testimony.”).
[5] In addition, we note that the ALJ did not provide a “nar-
rative discussion” that “contain[s] specific reasons for the
finding . . . , supported by the evidence in the case record”;
nor was his brief notation “sufficiently specific to make clear
. . . the weight the adjudicator gave to the individual’s state-
ments and the reasons for that weight,” as he is required to do.
See SSR 96-7p, 1996 WL 374186, *2; SSR 96-8p, 1996 WL
374184, at *7. So, even if the ALJ had given facially legiti-
mate reasons for his partial adverse credibility finding, the
complete lack of meaningful explanation gives this court
nothing with which to assess its legitimacy. While an ALJ
may certainly find testimony not credible and disregard it as
an “unsupported, self-serving statement,” we cannot affirm
Our review of the record on this issue, however, is beside the point. See
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (emphasizing the “fun-
damental rule of administrative law” that “a reviewing court, in dealing
with a determination or judgment which an administrative agency alone is
authorized to make, must judge the propriety of such action solely by the
grounds invoked by the agency”); Connett v. Barnhart, 340 F.3d 871, 874
(9th Cir. 2003) (“We are constrained to review the reasons the ALJ
asserts.”). The ALJ’s assessment of this or any other testimony about alco-
hol use is missing from the record, and no effort appears to have been
made to investigate the possible disparity during the hearing.
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such a determination unless it is supported by specific find-
ings and reasoning. See Flaten, 44 F.3d at 1464.
2. Lay Witness Testimony
It is uncontested that the ALJ erred by failing to account for
the August 1998 testimony of Robbins’s son Rodney, in
which Rodney offered eyewitness evidence supporting his
father’s claims as to functional limitations and severity of
pain. As the Commissioner concedes, the ALJ is required to
account for all lay witness testimony in the discussion of his
or her findings. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.
2001) (“Lay testimony as to a claimant’s symptoms is compe-
tent evidence that an ALJ must take into account, unless he
or she expressly determines to disregard such testimony and
gives reasons germane to each witness for doing so.”).
[6] We disagree with the Commissioner’s suggestion that
this error was harmless. While there may be cases in which
the failure to consider lay witness testimony can be harmless,
this is not one of them. We recently clarified the proper appli-
cation of the harmless error standard in Social Security cases.
See Stout v. Comm’r, 454 F.3d 1050, 1055-56 (9th Cir. 2006).
After reviewing our relevant prior decisions, we explained
that we have only found harmless error when it was clear
from the record that an ALJ’s error was “inconsequential to
the ultimate nondisability determination,” noting that we had
never found harmless an “ALJ’s silent disregard of lay testi-
mony about how an impairment limits a claimant’s ability to
work.” Id. Accordingly, we held in Stout that “where the
ALJ’s error lies in a failure to properly discuss competent lay
testimony favorable to the claimant, a reviewing court cannot
consider the error harmless unless it can confidently conclude
that no reasonable ALJ, when fully crediting the testimony,
could have reached a different disability determination.” Id. at
1056.
[7] Besides Robbins’s own testimony, the ALJ had only
that of his wife, daughter and son to consider. Given that the
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unaccounted-for testimony of Robbins’s son directly supports
his claim of disability since August 1993, the fact that the
ALJ considered the similar testimony of Robbins’s daughter
cannot alone support a finding of harmlessness. Indeed, if
credited, the testimony of Robbins’s son adds substantial
weight not only to Robbins’s claim, but also to the testimony
of Robbins’s wife and daughter, which support Robbins’s
claim. Because the ALJ did not make a legally sufficient
adverse credibility finding with regard to Robbins’s own testi-
mony, we cannot say with respect to Rodney’s testimony that
“no reasonable ALJ, when fully crediting the testimony, could
have reached a different disability determination.” Id.
[8] By failing to properly account for the testimony of Rob-
bins and his son, the ALJ erred in assessing the record testi-
mony offered in support of Robbins’s disability claim. While
the ALJ’s RFC determination appears proper as to the limita-
tions he considered, his failure to explain his dismissal of
other claimed limitations results in our finding that substantial
evidence does not support the ALJ’s pre-September 1998
RFC determination.
C. Vocational Expert Hypothetical
Robbins also challenges the ALJ’s step five determination
of his ability before September 8, 1998 to perform other work
available in the national economy. He argues that the hypo-
thetical posed to the vocational expert was inadequate because
it excluded some of his functional limitations. This challenge
engages the errors discussed above.3
[9] As the Commissioner correctly recognizes, in hypothet-
3As it was not raised and preserved for appeal at the hearing, we do not
address Robbins’s argument that the ALJ erred in relying on the voca-
tional expert’s testimony as to the number of jobs available without estab-
lishing a foundation for that testimony. See Meanel v. Apfel, 172 F.3d
1111, 1115 (9th Cir. 1999).
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icals posed to a vocational expert, the ALJ must only include
those limitations supported by substantial evidence. See Osen-
brock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). Con-
versely, an ALJ is not free to disregard properly supported
limitations. The ALJ’s failure to account for the testimony of
Robbins and his son calls into question the validity of his
determination of Robbins’s limitations and RFC before Sep-
tember 1998. Because those determinations were flawed, the
hypothetical posed to the vocational expert was legally inade-
quate. Id. Such a failure cannot be deemed harmless because,
if the ignored testimony is credited, a proper hypothetical
would have included limitations which, the record suggests,
would have been determinative as to the vocational expert’s
recommendation to the ALJ. Accordingly, the ALJ’s step five
determination is unsupported by substantial evidence. See id.
at 1163 (“An ALJ must propose a hypothetical that is based
on medical assumptions supported by substantial evidence in
the record that reflects each of the claimant’s limitations.”).
REVERSED and REMANDED.
O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s holding that reversal
and remand are required in this case. The administrative law
judge’s (“ALJ”) analysis is thorough and cogent, and it should
be affirmed.
I
First, the majority overturns the ALJ’s adverse credibility
determination. Maj. Op. at 17969-73. I disagree with its anal-
ysis, and I would instead hold that the ALJ satisfied the
requirement of providing “clear and convincing” reasons for
its finding, which is supported by substantial evidence in the
record as a whole. See Reddick v. Chater, 157 F.3d 715, 722
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(9th Cir. 1998); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th
Cir. 1995).
A
As the majority suggests, we have held previously that
“[t]he claimant need not produce objective medical evidence
of the pain or fatigue itself, or the severity thereof.” Smolen
v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). In other words,
an ALJ “may not discredit the claimant’s allegations of the
severity of pain solely on the ground that the allegations are
unsupported by objective medical evidence.” Bunnell v. Sulli-
van, 947 F.2d 341, 343 (9th Cir. 1991) (en banc) (emphasis
added); accord 20 C.F.R. § 416.929(c)(2). That point of law
is well-established.
The applicable regulations, however, make clear to claim-
ants that in “[e]valuating the intensity and persistence of your
symptoms, such as pain, and determining the extent to which
your symptoms limit your capacity for work,” the agency will
“consider all of the available evidence, including your history,
the signs and laboratory findings, and statements from you,
your treating or nontreating source, or other persons about
how your symptoms affect you.” 20 C.F.R. § 416.929(c)(1).
They specifically state that the agency will “also consider the
medical opinions of your treating source and other medical
opinions.” Id. The regulations continue:
Objective medical evidence of this type is a useful
indicator to assist us in making reasonable conclu-
sions about the intensity and persistence of your
symptoms and the effect those symptoms, such as
pain, may have on your ability to work . . . .
. . . .
. . . . We will consider your statements about the
intensity, persistence, and limiting effects of your
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symptoms, and we will evaluate your statements in
relation to the objective medical evidence and other
evidence, in reaching a conclusion as to whether you
are disabled. We will consider whether there are any
inconsistencies in the evidence and the extent to
which there are any conflicts between your state-
ments and the rest of the evidence, including your
history, the signs and laboratory findings, and state-
ments by your treating or nontreating source or other
persons about how your symptoms affect you.
Id. § 416.929(c)(2), (4) (emphases added); accord id.
§ 404.1529(c). We have also recognized that an ALJ may
consider, as a factor in discrediting a claimant’s subjective
complaints, “ ‘testimony from physicians and third parties
concerning the nature, severity, and effect of the symptoms of
which [claimant] complains.’ ” Thomas v. Barnhart, 278 F.3d
947, 959 (9th Cir. 2002) (quoting Light v. Soc. Sec. Admin.,
119 F.3d 789, 792 (9th Cir. 1997)); accord Smolen, 80 F.3d
at 1284 & n.8 (stating that the ALJ shall consider the “obser-
vations of treating and examining physicians” regarding, inter
alia, any “functional restrictions caused by the symptoms”).
The applicable Social Security Ruling states likewise. It
instructs that the adjudicator’s credibility finding must be
based on the available “medical signs and laboratory find-
ings,” as well as on “any statements and other information
provided by treating or examining physicians or psychologists
and other persons about the symptoms and how they affect the
individual.” See SSR 96-7p, 1996 WL 374186, at *2.
In short, while the claimant is not required to provide
objective medical evidence affirmatively proving the severity
of his pain, Bunnell, 947 F.2d at 343, the foregoing authority
makes clear that an ALJ may reject a claimant’s statements
about the severity of his symptoms and how they affect him
if those statements are inconsistent with or contradicted by
the objective medical evidence. See, e.g., Johnson, 60 F.3d at
1434 (noting that “[t]he ALJ also identified several contradic-
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tions between claimant’s testimony and the relevant medical
evidence”). The majority’s confusion on this fundamental
issue is patent.
The ALJ’s assessment of Appellant Leroy Robbins’s testi-
mony, which I would hold entirely proper, began with the fol-
lowing correct statement of law:
In establishing the residual functional capacity, I
must determine whether claimant’s complaints of
symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evi-
dence based on the requirements of 20 C.F.R.
§ 416.929 and Social Security Ruling 96-7. I must
also consider any medical opinions from acceptable
medical sources which reflect judgments about the
nature and severity of the impairments and resulting
limitations on claimant’s residual functional capac-
ity.
(Citations omitted.) The ALJ then noted Robbins’s testimony
regarding his past work, which was that he was no longer able
to even carry a can of paint upstairs. Robbins had further testi-
fied “that his typical day consist[ed] of sitting and watching
television, because of his pain.”
The ALJ found these allegations regarding Robbins’s func-
tional limitations “not entirely credible,” noting that they were
not “consistent with or supported by the overall medical evi-
dence of record which reflects no serious physical or mental
functional limitations.” In making that finding, the ALJ per-
missibly relied on the opinion of Dr. Victoria Carvalho, which
was that Robbins was “consistently assessed as capable of
‘Medium’ exertion, with the accommodation [due to Rob-
bins’s ‘perceived pain’] of being able to ‘change position
every 2 hours, for 10-to-15 minutes.’ ” Aside from a “slight
deviation in the claimant’s knees, ankles and toes,” Dr. Car-
valho had assessed Robbins as having “no functional impair-
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ment in the upper or lower extremities; good strength and no
difficulties ambulating.”1 It was also proper for the ALJ to
rely on the opinion of the impartial medical examiner, Dr.
Orin H. Bruton, who agreed that Robbins could perform
duties involving “Medium” exertion. Further, Dr. Julie Isaac-
son opined that Robbins’s knee pain had improved following
knee-replacement surgery and that he should “get back in the
work force.” As for Robbins’s psychological state, Dr. Paul
Stoltzfus’s view, even as late as 2002, was that he had only
“ ‘slight’-or-‘mild’ socialization limitations in a work envi-
ronment and ‘no’ cognitive functional limitations.” See SSR
96-7p, at *5 (stating that the ALJ’s credibility determination
should take into account any “[d]iagnosis, prognosis, and
other medical opinions provided by treating or examining
physicians or psychologists and other medical sources”).
These medical opinions simply were not consistent with
Robbins’s claim that his pain resigned him to a sedentary life
of watching television. Thus, the ALJ did not, as the majority
erroneously holds, disregard Robbins’s testimony solely
because he did not prove the severity of his pain by objective
medical evidence. Rather, in the phrasing of the Social Secur-
ity Administration, the ALJ properly found that Robbins’s
“alleged functional limitations and restrictions due to symp-
toms [could not] reasonably be accepted as consistent with the
objective medical evidence and other evidence in the case
record.” SSR 96-7p, at *2.
The majority’s approach is one I hope we will not repeat.
Its conflating of the two relevant categories—a lack of affir-
mative support versus the presence of contradictory medical
evidence—would absolutely bar adjudicators from making
adverse credibility determinations so long as the claimants are
able to keep their stories straight. The applicable regulations,
1As the relevant Social Security Ruling notes, the “effects [of symptoms
such as pain] can often be clinically observed.” SSR 96-7p, at *6.
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agency ruling, and case law all counsel strongly against such
an approach.
B
Additionally, a claimant’s inconsistent statements about the
use of alcohol can contribute to a determination regarding that
claimant’s credibility. See Thomas, 278 F.3d at 959; Verduzco
v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).
The ALJ made such a finding in this case, stating that Rob-
bins presented “conflicting testimony and reports to doctors of
maintaining sobriety, versus continuing to drink in lesser
amounts.” The ALJ noted that “[d]uring his initial screening
on April 4, 1989, [Robbins] specifically denied having a prob-
lem with alcohol.” Yet during that same period, Dr. Charles
Reagan observed, “The claimant has been drinking up to a
case a day. This drinking escalated beginning in 1988.” Then
on November 12, 1996, as the ALJ further noted, Robbins
reported to Dr. Carvalho “that he continues to ‘occasionally
drink’ but admitted ‘he did have a problem with alcohol.’ ”2
C
The majority’s fallback argument is that the ALJ’s decision
is characterized by a “complete lack of meaningful explana-
tion [which] gives this court nothing with which to assess its
legitimacy.” Maj. Op. at 17972. It asserts that the same error
infects the ALJ’s finding regarding Robbins’s conflicting tes-
timony as to his alcohol abuse. See Maj. Op. at 17971-72 n.2.
2That the ALJ uttered the word “equivocal” is of no importance. See
Maj. Op. at 17971-72. The opinion states that Robbins’s “testimony
regarding his alcohol dependence and abuse problem remains equivocal”
because of “his conflicting testimony.” Robbins’s testimony was clearly
“conflicting”; it was the relevance of such testimony that the ALJ consid-
ered to be equivocal. This view is perfectly consistent with the finding that
Robbins was “not entirely credible.”
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It is unclear to me why the majority chooses simply to dis-
regard the many pages preceding (as well as the few pages
following) the paragraph in which the ALJ made the credibil-
ity determination explicit. As the Commissioner suggests,
after discussing in great detail the reasons supporting its ulti-
mate findings, the ALJ was not required explicitly to link his
determination to those reasons. See, e.g., Lewis v. Apfel, 236
F.3d 503, 512 (9th Cir. 2001) (“In all, the ALJ at least noted
arguably germane reasons for dismissing the family members’
testimony, even if he did not clearly link his determination to
those reasons.”).
Indeed, all of the reasons discussed above constitute
“grounds invoked by the agency,” SEC v. Chenery Corp., 332
U.S. 194, 196 (1947), or “reasons the ALJ assert[ed],” Con-
nett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The
majority is utterly wrong to suggest otherwise.
D
In sum, the ALJ properly supported and adequately
explained his adverse credibility determination. The finding is
supported by specific, clear, and convincing reasons, and it
should be affirmed.
II
I also disagree with the majority’s view that a remand is
required because the ALJ failed explicitly to comment on the
lay opinion testimony of Rodney Robbins, the claimant’s son.
See Maj. Op. at 17973-74.
A
The application of harmless error doctrine in our review of
the denial of Social Security disability benefits is well-
established. See, e.g., Booz v. Sec’y of Health & Human
Servs., 734 F.2d 1378, 1380 (9th Cir. 1983). In Batson v.
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Comm’r of Soc. Sec. Admin., 359 F.3d 1190 (9th Cir. 2004),
for example, we simply asked whether there remained “sub-
stantial evidence supporting the ALJ’s decision,” or whether
the error in any way “negate[d] the validity of the ALJ’s ulti-
mate conclusion.” Id. at 1197. A similar analysis would have
been proper in this case.
But, as the majority says, “[w]e recently clarified the
proper application of the harmless error standard in Social
Security cases.” Maj. Op. at 17973. I did not agree with this
same majority’s formulation in Stout v. Commissioner, 454
F.3d 1050 (9th Cir. 2006), and I do not endorse it here. Stout’s
“no reasonable ALJ” standard unduly curtails the latitude we
have always accorded to the administrative bodies we review.
B
Regardless, I would hold that the ALJ’s error in this case
was harmless—even under Stout’s exacting test. In Stout, as
in each of the cases upon which the majority there relied, the
ALJ failed to consider all available lay witness testimony. See
454 F.3d at 1056 (citing various in- and out-of-circuit cases).
This case is quite different. Although the ALJ failed to com-
ment on the testimony of the claimant’s son, he considered at
length the strikingly similar testimony of the claimant’s wife
and daughter. Given that aspect of the case, as well as the
nature of the ALJ’s ultimate determination, we “can confi-
dently conclude that no reasonable ALJ, [even] fully crediting
the [omitted] testimony, could have reached a different dis-
ability determination.” Id.
1
As noted, the majority reverses because the ALJ erred in
failing to mention the substance of roughly four pages of Rod-
ney Robbins’s unsworn testimony, dated August 28, 1998.
Rodney testified that in August 1993 his father had trouble
walking, i.e., a “slight limp that become more pronounced . . .
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on some days than others.” He explained that given his
father’s high level of pain tolerance, his verbalizing his pain
was “noteworthy.” Rodney recalled his father having “some
difficulty” using his arms and hands. He further testified that
his father was in pain on approximately half of the occasions
on which Rodney saw him, and that his father would become
“worn out” easily. Rodney also noticed “marked depression”
and some irritability. According to Rodney’s testimony, his
father’s condition had only worsened since August 1993.
Though the ALJ did not mention this testimony in his deci-
sion, he did explicitly consider the testimony of Rhonda
Heaps, Robbins’s daughter. Heaps testified that she had seen
her father two to three times per week since August 1993. She
testified that he had difficulty walking because of swollen
knees, a condition she noticed perhaps once every month.
Heaps also discussed her father’s pain, explaining that he
engaged in uncharacteristic behaviors such as “sitting in [a]
chair with his leg up.” She testified that her father was
depressed and irritable, and that his condition made it difficult
to engage in physical tasks associated with managing apart-
ments. The ALJ found her testimony “generally credible, at
least to the extent of her reported first-hand observations of
her father.”
The ALJ also discussed the testimony of Gloria Jean Rob-
bins, the appellant’s wife. Ms. Robbins similarly testified to
the difficulty Robbins experienced with the physical duties—
such as painting, cleaning, and moving heavy items—of his
past work as an apartment manager. Even paperwork became
a problem, according to Ms. Robbins, because of lapses in
memory and an inability to concentrate.
The lay witness testimony from the foregoing individuals
stood in the record alongside various items of medical evi-
dence and the expert opinions of multiple medical profession-
als. The ALJ agreed with Robbins’s claim that his
impairments were “severe,” within the meaning of the regula-
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tions. The judge found that Robbins suffered from “severe
impairments of left rotator cuff tendinitis; pseudo-gout of the
knees, bilaterally; degenerative disc disease of the lumbar
spine and history of alcoholism, in partial remission.”
In assessing the impact of these impairments, the ALJ con-
sidered the opinion of Dr. Richard Guidry, who examined
Robbins in May and June of 1995. Dr. Guidry noted that Rob-
bins exhibited “no discomfort” during range-of-motion testing
and that Robbins gave “poor effort” during portions of the
test. The ALJ also assessed x-ray and MRI findings from May
1995, which showed “moderately severe degenerative
changes” in Robbins’s spine, but no “signs of disc hernia-
tion.” Dr. Guidry placed Robbins on “light” duty status.
The ALJ next considered a November 1996 consultative
orthopedic evaluation by Dr. Carvalho, which revealed “a
slightly decreased radial deviation (i.e., movement through
normal range incurring slight pain or numbness), bilaterally in
the ankles, with vibratory sensation absent in the knees,
ankles and toes, bilaterally.” The ALJ noted that Dr. Carvalho
otherwise “found no functional impairment in the upper or
lower extremities; good strength and no difficulties ambulat-
ing.” Dr. Carvalho’s assessment of Robbins’s residual func-
tional capacity (“RFC”) was that he could perform “medium”
exertion, and was able to carry up to 25 pounds “frequently”
and up to 50 pounds “occasionally.” The doctor noted that
because of his “perceived pain,” Robbins should be permitted
to “change position every two hours for 10 to 15 minutes.”
From February through November of 1997, Dr. Sean Stadt-
lander treated Robbins for pain in his back, left shoulder, right
knee, right wrist and elbow, and neck. Spinal x-rays revealed
“moderate” or “mild” degenerative disc disease, but “no evi-
dence of acute bony trauma.” The doctor prescribed pain
medication. With respect to Robbins’s knees, x-rays showed
“prominent cartilage calcification” of the left knee and soften-
ing of the cartilage in the right knee. Robbins was referred to
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Dr. Julie Isaacson, an orthopedic surgeon, who aspirated Rob-
bins’s right knee and thereafter noted “significant improve-
ment.”
In June 1998, upon finding evidence of a meniscal tear and
complaints of pain, swelling, and tenderness, Dr. Isaacson
performed a total right knee replacement surgery. Thereafter
Robbins underwent a course of physical therapy and received
pain medication. The ALJ noted that by August 11, 1998,
Robbins reported no longer using the pain medication. The
ALJ further noted Dr. Isaacson’s opinion “that she would like
to see [Robbins] in the work force.”
Turning to Robbins’s RFC, the ALJ considered Robbins’s
past work experience; the impact of alcoholism, which the
ALJ found minimal; Robbins’s own testimony of pain and
anxiety, which the ALJ found “not entirely credible”; and the
testimony of Robbins’s wife and daughter, which primarily
concerned Robbins’s inability to perform work as an apart-
ment manager. The ALJ reviewed the RFC assessment made
by “the State agency non-examining medical consultants,”
which stated that Robbins was capable of “medium” exertion
but should be allowed to “change position every 2-hours, for
10-to-15 minutes.” Dr. Bruton, as the “impartial medical
expert,” reviewed all of the medical evidence and testified
that he concurred with the opinion of the State agency consul-
tants. Ultimately, then, the ALJ concluded that Robbins’s pre-
1998 RFC was “at the level of ‘less than a wide or full range
of Medium’ exertion with Postural and Manipulative non-
exertional limitations.”3
3Specifically, the ALJ found that Robbins could lift and carry up to 50
pounds “occasionally” and up to 25 pounds “frequently”; could stand and
walk up to six hours in an eight-hour work day with normal breaks; could
sit about two hours in an eight-hour work day with normal breaks; and had
“push/pull abilities” limited to the amount of weight he could lift and
carry. The ALJ also agreed that Robbins had “postural and manipulative
non-exertional limitations;” he was “precluded from any kneeling, squat-
ting, crawling or crouching, because of his bilateral knee condition.” Rob-
bins was also limited to “only ‘occasional’ overhead reaching with his
non-dominant left arm and shoulder.”
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Next, the ALJ agreed with Robbins’s claim (which was
supported by the testimony of an impartial vocational expert)
that he could no longer perform any of his past work, includ-
ing the management of apartment buildings. However, the
ALJ then held that the Social Security Administration had met
its burden of showing other jobs, “existing in significant num-
bers in the regional or national economy,” that Robbins could
have performed from 1993 to 1998. Although Robbins was
without transferable skills, the vocational expert testified that
he could perform other jobs which required “less than a wide
or full range of Medium” exertion. Namely, Robbins could
have worked as a “general clerk” or a “security or gate
guard.” Those jobs required only “Light exertion, at a semi-
skilled level,” and would be available even with Robbins’s
limitations. The ALJ concurred, and he thus found Robbins
“not disabled” from August 20, 1993, though September 7,
1998.
2
I think it clear that the ALJ made a careful assessment of
the available medical evidence and found that notwithstand-
ing various postural and manipulative limitations, Robbins
could perform work involving something less than a medium
range of exertion. The ALJ’s reasoned conclusion, in other
words, was that the “overall medical evidence of record [ ]
reflect[ed] no serious physical or mental functional limita-
tions.”
Taking Rodney Robbins’s testimony into account, the
record hardly looks different. Rodney’s testimony covered no
ground not also covered by the appellant’s daughter and wife.
Rodney discussed the pain in his father’s knees; testified to
uncharacteristic behavior that indicated the extent of his
father’s pain; said that his father had difficulty using his arms;
and noted depression and irritability. Rhonda Heaps also dis-
cussed each of these issues, in very similar terms, and the ALJ
found her credible. It defies reason to conclude that the ALJ’s
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determination of Robbins’s RFC may have been different had
he only considered a second recitation of the very same obser-
vations.
I am also confident in the harmlessness of the error at issue
because of the nature of the ALJ’s decision. The ALJ did not
doubt that Robbins experienced significant pain; he accepted
Rhonda Heaps’s testimony as credible, and thus accounted for
every limitation to which Rodney Robbins testified. The ALJ
further agreed that some impairments were “severe,” and his
findings accommodated Robbins’s need to change positions
regularly and take breaks. He also agreed that Robbins could
no longer perform work as an apartment manager, which was
the subject with which the lay opinion testimony was primar-
ily concerned.
As such, and in light of the proper credibility determination
as to Robbins, the ALJ could then reasonably rely on the med-
ical evidence in determining the impact the perceived pain
would have had on Robbins’s ability to work in other jobs.
That medical evidence showed, without equivocation, that
prior to September 7, 1998, Robbins had no functional limita-
tion that would have prevented his employment. As detailed
above, he had little discomfort during range of motion testing
in 1995; x-rays showed only “moderate” degeneration in his
spine; he responded well to pain medication, even after the
knee replacement; and he had “good strength and no difficul-
ties ambulating.” Every medical professional who offered an
opinion on the subject—including Drs. Guidry, Carvalho, and
Isaacson, as well as the State agency medical consultants and
Dr. Bruton, the independent medical expert—suggested in
clear terms that Robbins could re-enter the workforce. The
ALJ determined that Robbins could do so in a capacity requir-
ing “less than a wide or full range of Medium” exertion. The
testimony of Rodney Robbins, which concerned the pain his
father experienced while walking or working as an apartment
manager, in no way could have undermined this determina-
tion so as to deprive it of support by substantial evidence.
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C
Because the lay witness testimony did not actually touch on
Robbins’s ability to perform work as a “general clerk” or “se-
curity or gate guard,” the “weight” it may have added—while
hardly “substantial”—is entirely beside the point. In determin-
ing whether the ALJ’s failure to address Rodney Robbins’s
testimony was harmless error, after Stout we ask whether a
reasonable ALJ could have arrived at a different conclusion.
Rodney Robbins provided no information not already pro-
vided by Rhonda Heaps, and he spoke to no limitations not
already accounted for by the ALJ. For those reasons, I think
it utterly apparent that there is no such possibility here.4
III
Because the majority’s opinion suffers from fundamental
errors and fails fairly to apply its own harmless-error stan-
dard, I respectfully dissent.
4Moreover, the ALJ’s assessment of Robbins’s RFC was complete, spe-
cific, and supported by substantial evidence. See Bayliss v. Barnhart, 427
F.3d 1211, 1217 (9th Cir. 2005) (“In making his RFC determination, the
ALJ took into account those limitations for which there was record sup-
port that did not depend on [the claimant’s] subjective complaints.”). As
a result, the hypothetical posed to the vocational expert was without error.
Id. at 1217-18 (“The hypothetical that the ALJ posed to the VE contained
all of the limitations that the ALJ found credible and supported by sub-
stantial evidence in the record.” (citing Magallanes v. Bowen, 881 F.2d
747, 756-57 (9th Cir. 1989))).
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