Robbins v. Social Security Administration

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEROY J. ROBBINS,  No. 04-35890

Plaintiff-Appellant,

v.  D.C. No.

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).

17963

ROBBINS v. SSA 17967

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.

17968 ROBBINS v. SSA

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

1

The five-step sequential evaluation is detailed at 20 C.F.R.

§§ 404.1520; 416.920.

ROBBINS v. SSA 17969

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

17970 ROBBINS v. SSA

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

ROBBINS v. SSA 17971

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

2

Indeed, 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.”

17972 ROBBINS v. SSA

[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.

ROBBINS v. SSA 17973

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

17974 ROBBINS v. SSA

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-

3

As 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).

ROBBINS v. SSA 17975

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

17976 ROBBINS v. SSA

(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

ROBBINS v. SSA 17977

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-

17978 ROBBINS v. SSA

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-

ROBBINS v. SSA 17979

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,

1

As the relevant Social Security Ruling notes, the “effects [of symptoms

such as pain] can often be clinically observed.” SSR 96-7p, at *6.

17980 ROBBINS v. SSA

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.

2

That 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.”

ROBBINS v. SSA 17981

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.

17982 ROBBINS v. SSA

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 . . .

ROBBINS v. SSA 17983

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-

17984 ROBBINS v. SSA

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

ROBBINS v. SSA 17985

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

3

Specifically, 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.”

17986 ROBBINS v. SSA

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

ROBBINS v. SSA 17987

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.

17988 ROBBINS v. SSA

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.

4

Moreover, 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))).