Scott A. Osenbrock v. Kenneth S. Apfel, Commissioner, Social Security Administration

FERGUSON, Circuit Judge,

dissenting:

I respectfully dissent.

Scott Osenbrock suffers from back problems, hearing problems, residual effects of a gunshot wound, an ulcer, depression and alcoholism in partial remission. Nonetheless, the majority relies upon a determination by a vocational expert with an incomplete set of medical facts, and finds Osenbrock capable of gainful employment. In doing so, the majority misreads the law and disregards substantial evidence in the record. While I agree that Osenbrock may have had the necessary job skills to be a timekeeper, he was not medically fit for the work.

As the majority recognizes, the Commissioner can prevail only if he can show that Osenbrock could engage in substantial gainful work existing in the national economy. 20 C.F.R. § 404.1520 (f)(2000); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir.1999). Where, as here, the claimant suffers from non-exertional limitations, the Commissioner can only satisfy this burden by relying on the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir.2000). The majority’s opinion undermines this rule.

When the ALJ relies on the testimony of a vocational expert, the judge must propound a hypothetical that incorporates all of the medical and vocational limitations of the claimant set forth in the record. Tack-ett, 180 F.3d at 1101 . If a hypothetical fails to reflect each of the claimant’s limitations supported by “substantial evidence,” the expert’s answer has no evidentiary value. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984); See also Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir.1988). The hypothetical propounded by the ALJ included Osenbrock’s back and hearing problems, but omitted mention of Osen-brock’s medication side effects, depression, poor physical condition, ulcer, alcoholism and residual effects of a gunshot wound, all of which are amply supported by the record. 1 Determining which limitations affect the claimant’s ability to work is the job of the vocational expert, not the ALJ. By permitting the ALJ to limit the hypothetical solely to those ailments he considers worthy, the majority vastly enlarges *1168 the power of the ALJ and violates clear law.

A.

The majority defies both case law and common sense when it claims that Osen-brock’s “physical deeonditioning that renders him obese can readily be remedied by daily physical exercise and a change in his consumption of food.... ” An ALJ must consider obesity in determinations of disability. Hammock v. Bowen, 879 F.2d 498, 503-504 (9th Cir.1989) (en banc). We do not require disability claimants to lose weight since it “is a task which is not equivalent to taking pills or following a prescription.” Id. Despite our clear law on the subject, the majority simply assumes that Mr. Osenbrock could overcome his weight problem, even while plagued by back pain, depression, and possible alcoholism. In fact, even if Osenbrock could ameliorate his physical condition, he would need to receive disability benefits until that time.

B.

The majority also justifies exclusion of Osenbrock’s limitations by characterizing them as insignificant, claiming that Osen-brock’s medication side effects were not severe, that his depression was mild, that his gunshot wound still allowed him to use his right hand, that his ulcer medication was working well, and that his alcoholism was in remission. The ALJ does not have free reign to disregard physical limitations simply because they are either well-managed or mild. 2 In fact, the hypothetical propounded by the ALJ should be “accurate” and “detailed.” Tackett, 180 F.3d at 1101 . It is the vocational expert who then determines whether the mild impairment would affect the claimant’s ability to work. See, e.g., Sample v. Schweiker, 694 F.2d 639 (1982) (vocational expert considered hypothetical in which claimant’s back pain, alcoholism and mental disorders were controlled by medication).

Moreover, a claimant’s conditions must be considered in combination when determining a disability. 42 U.S.C. § 423 (d)(2)(B). Even a limitation which on its own would not constitute a disability can rise to that level when considered in the context of a claimant’s other problems. Id. Osenbrock’s situation highlights the necessity of this rule. Perhaps, alone, moderate depression, a managed ulcer, the inability to use a left hand, or alcoholism in partial remission would not rise to the level of disability. Indeed, as the majority noted, Osenbrock’s gunshot injury did not hamper his work when his back was not injured. When considered in combination, however, and added to Osenbrock’s back injury and hearing loss, these problems would significantly impair Osenbrock’s ability to work.

The vocational expert’s testimony underscores the impropriety of the majority’s approach. In response to a hypothetical including side effects from medication, alcoholism and general poor conditioning, the vocational expert stated that Osen-broek probably would not have been able to perform the duties of a timekeeper. This decision should have been left to the vocational expert, not arrogated by the ALJ.

C.

In characterizing the excluded limitations as insignificant, the majority also ig- *1169 ñores key evidence in the record. First, the majority ignores the implications of Osenbrock’s medication side effects. Because the side effects of medication can significantly impact on an individual's ability to work, we consider them in disability determinations. Varney v. Secretary of Health & Human Services, 846 F.2d 681 , 585 (9th Cir.1988). “Side effects can be a ‘highly idiosyncratic phenomenon’ and a claimant’s testimony as to their limiting effects should not be trivialized.” Id. (citations omitted). The majority briefly acknowledges that as a result of his medication, Osenbrock became so tired that he could not drive for fear of falling asleep at the wheel. Such severe fatigue could certainly interfere with Osenbrock’s ability to work. Nonetheless, the majority finds it inconsequential that the ALJ excluded this information from the relevant hypothetical.

Similarly, the majority affirms the ALJ’s omission of depression from the hypothetical. An ALJ may not simply discount evidence of depression in a disability determination. Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir.2000). The majority justifies its conclusion that Osenbrock’s depression was not severe by noting that the treating physician, Dr. Ihle, categorized it as “mild.” Dr. Ihle’s records, however, are not so clear. Dr. Ihle rated Osen-brock’s medical problems on a scale of 1 to 5. On this scale, 2 was supposed to represent a mild impairment which would not interfere with Osenbrock’s work. Dr. Ihle marked “2” for both hearing loss and depression. Next to hearing loss, however, he also wrote “moderate to severe.” It seems likely, then, that Dr. Ihle had not attached the proper numeric value to the impairments.

In light of this confusion, the majority should have looked to the rest of the record, which reveals that Osenbrock suffered from severe depression. Osenbrock testified that he was quite depressed, that he worried that his wife was close to leaving him, that he had trouble controlling his anger, that he was anxious and had thoughts of suicide and that he did not like to be around people. Additionally, his medical records demonstrate a history of severe depression. Even if mild limitations were correctly excluded, the record demonstrates that Osenbrock’s medication side effects and his depression were severe. 3

Because the ALJ’s hypothetical failed to include all of the relevant medical evidence, I respectfully dissent.

. The hypothetical also omitted mention of severe emotional disturbance attributed to organic brain disorder, as well as sleep apnea, diabetes and hepatitis. Because Osenbrock did not present these claims to the court below, and because he did not show good cause for the omission, we agree with the majority’s determination that we should not consider them here.

. The majority has it all wrong on the issue of hypothetical questions. In this case, the ALJ asked a hypothetical question. The vocational expert stated that a person who suffered from the limitations set forth in the hypothetical could not work as a timekeeper. The majority holds that the ALJ had a right to reject the evidence because the hypothetical was not supported by substantial evidence. It cites Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir.1989), for the rule. The flaw is that in Magallanes , the hypothetical question was asked by claimant's counsel. Certainly, Magallanes is correct. But here, the hypothetical was asked by the judge. It was the judge who inserted the facts in the question and then disregarded it. The difference is monumental.

. Since Osenbrock conceded that his alcoholism was in remission, the majority did not err in assuming that to be true. It is worth noting, however, that the ALJ appears to have acknowledged Osenbrock’s persistent alcohol problem. The terms of Osenbrock’s remission are especially questionable since a letter from one of his physicians suggests that he had a history of hiding his drinking.