Takeaway
In short, this case holds that a claimant’s sporadic, low-paid part-time work cannot be treated as past relevant work without substantial evidence that it was sustained substantial gainful activity, and that an ALJ cannot omit a treating psychologist’s uncontradicted workplace limitations from a vocational hypothetical without clear and convincing reasons.
Bradley Lewis applied for disability insurance and supplemental-security-income benefits, alleging disability from a seizure disorder, medication-related drowsiness, mild mental retardation, and an organic personality disorder. He experienced both petit mal and grand mal seizures, and family members described frequent seizures, severe fatigue, and difficulty functioning independently. Lewis had held only part-time, entry-level jobs and, by the 1994 hearing, worked at McDonald’s no more than about ten hours per week.
The ALJ found that Lewis’s seizure disorder and mild mental retardation were severe impairments, but concluded at step three that they neither met nor equaled a listed impairment. At step four, the ALJ found that Lewis could return to his McDonald’s lot-and-lobby-attendant work for up to twenty hours per week. Alternatively, at step five, the ALJ relied on a vocational expert to find that Lewis could perform other jobs. The ALJ discounted the family’s testimony about chronic grogginess and rejected limitations reported by treating psychologist Dr. Duggan.
After the Appeals Council declined review, Lewis sought judicial review. The magistrate judge granted summary judgment for the Commissioner. The magistrate judge also concluded, on the court’s own initiative, that denial of Lewis’s earlier 1991 application was res judicata through June 1991 and created a presumption of continuing nondisability. The Ninth Circuit reversed and directed an award of benefits beginning September 15, 1990.
Issue #1
Whether the prior denial of Lewis’s 1991 application barred consideration of disability before June 1991, and whether the ALJ properly refused to amend the alleged onset date before September 15, 1990.
Holding
The prior denial did not bar review of the period beginning September 15, 1990 because the ALJ had de facto reopened the earlier claim, but the ALJ did not err in refusing to move the onset date still earlier.
Reasoning
Although the magistrate judge treated the 1991 denial as res judicata through June 1991, res judicata does not apply when an ALJ later considers on the merits whether the claimant was disabled during the previously adjudicated period. The ALJ knew about Lewis’s earlier application, considered evidence reaching back to 1989, and accepted the September 15, 1990 alleged onset date. Those actions constituted a de facto reopening, making September 1990 the proper starting point for the disability analysis.
Lewis’s argument that his earlier notice of denial was constitutionally defective under Gonzalez v. Sullivan did not alter the result. The record did not contain the notice itself, and Lewis had not established that it was defective. In any event, the de facto reopening supplied an independent reason not to give the earlier denial preclusive effect for the period the ALJ actually considered.
The ALJ acted within his discretion when he denied Lewis’s hearing-stage requests to amend the onset date to August 1989 or March 1987. Counsel had not raised those dates before the hearing, the necessary factual development had not been completed, and the record did not establish a pattern of medical treatment supporting disability during 1987 through 1990.
Issue #2
Whether the ALJ gave legally adequate reasons for discounting the testimony of Lewis’s mother, sister, and brother about his fatigue, grogginess, and functional limitations.
Holding
Yes. The ALJ gave germane reasons, supported by substantial evidence, for discounting the family members’ testimony.
Reasoning
Lay witnesses may provide competent evidence about a claimant’s symptoms. An ALJ may reject that testimony only by expressly doing so and giving reasons germane to the individual witnesses; inconsistency with medical evidence can be such a reason.
The ALJ expressly rejected the family testimony that Lewis had been constantly groggy and fatigued since 1989. Treating-physician reports from 1990 through 1992 repeatedly stated that Lewis had no medication side effects and did not mention fatigue or grogginess. That medical silence, combined with the reports of no side effects, substantially supported the ALJ’s conclusion that the claimed chronic fatigue was inconsistent with the contemporaneous medical record.
The ALJ also identified evidence that arguably conflicted with the claimed severity of Lewis’s limitations, including his exercise, sports, church attendance, household activities, willingness to work additional hours, and inconsistent evidence about his sleep. The ALJ did not clearly connect every reason to each witness, but the court held that the stated reasons were sufficiently germane and supported by substantial evidence.
Issue #3
Whether the ALJ adequately explained the step-three conclusion that Lewis’s impairments did not meet or medically equal a listed impairment, and whether the ALJ was required to develop the record further.
Holding
Yes. The ALJ adequately supported the finding that Lewis did not meet or equal the epilepsy or mental-retardation listings, and the record did not require additional development.
Reasoning
A conclusory, boilerplate statement ordinarily cannot support a finding that an impairment does not meet or equal a listing. But the ALJ’s discussion as a whole showed why Lewis did not satisfy the epilepsy listing: the listing requires seizures that persist despite prescribed anticonvulsant treatment, while the record contained repeated evidence that Lewis’s seizure episodes followed noncompliance with medication and that his condition was controlled when he complied.
The ALJ cited subtherapeutic drug levels, missed medications, alcohol use contrary to medical advice, and treating-physician observations documenting a recurring compliance problem. Although one later letter from Dr. Dauben referred to seizures not fully controlled despite therapeutic medication levels, the ALJ could resolve that conflicting evidence in favor of finding noncompliance because substantial evidence supported that conclusion.
Lewis also did not meet the mental-retardation listing. His verbal and full-scale IQ was 78, and his performance IQ was 81, all above the listing’s required maximum IQ of 70 when accompanied by an additional impairment. Those undisputed scores adequately explained the ALJ’s conclusion on that listing.
The ALJ did not separately discuss how Lewis’s impairments combined to equal a listing, but Lewis offered no plausible medical theory or evidence showing medical equivalence. He did not show that the seizures worsened his intellectual functioning, that his intellectual limitations intensified the seizures, or that medication-related grogginess should be treated as an additional equalizing limitation after the ALJ had rejected the grogginess claim.
Nor was the ALJ required to obtain further medical evidence. The record was not uniformly favorable to Lewis or insufficient to permit a decision: it contained substantial evidence of noncompliance and undisputed IQ scores above the listing threshold.
Issue #4
Whether substantial evidence supported the ALJ’s step-four finding that Lewis could perform past relevant work as a McDonald’s lot-and-lobby attendant for twenty hours per week.
Holding
No. Lewis’s low earnings created a presumption that his work was not substantial gainful activity, and the Commissioner did not rebut that presumption with substantial evidence.
Reasoning
Past relevant work must constitute substantial gainful activity. Because Lewis’s average monthly earnings during the alleged disability period were consistently below $300, the regulations created a presumption that he had not engaged in substantial gainful activity. The presumption shifted the practical burden to the Commissioner to identify substantial evidence, apart from earnings, showing that Lewis’s work was substantial and gainful.
The ALJ relied mainly on the fact that Lewis had sometimes worked as many as twenty hours per week and had said he wanted more work. But Lewis performed twenty hours weekly at McDonald’s for only about two months. Sporadic work and occasional symptom-free periods do not establish an ability to work on a regular and continuing basis, which is what the residual-functional-capacity inquiry requires.
Lewis’s willingness to work more did not show that he could sustain more work. The record showed that McDonald’s had sent him home because of grogginess and seizures, had criticized his performance, and had reduced his hours. His other jobs were simple, entry-level work, and the available evidence suggested that he needed supervision and had difficulty performing adequately. The regulatory factors therefore did not rebut the low-earnings presumption.
Issue #5
Whether substantial evidence supported the ALJ’s step-five finding that Lewis could perform other work existing in substantial numbers in the national economy.
Holding
No. The vocational-expert testimony lacked evidentiary value because the ALJ improperly omitted uncontradicted limitations from treating psychologist Dr. Duggan.
Reasoning
At step five, the Commissioner bears the burden of showing that the claimant can perform other work. A vocational expert’s testimony can meet that burden only if the hypothetical question includes all limitations supported by the record.
Dr. Duggan, Lewis’s treating psychologist, reported that Lewis had very poor social perception and judgment because of an organic personality disorder. According to Dr. Duggan, those deficits led to inappropriate behavior and problems in work and social settings, particularly when schedules changed or contained nuances. When counsel added those limitations to the vocational hypothetical, the expert testified that Lewis could not perform the jobs she had previously identified.
Because no other doctor contradicted Dr. Duggan’s assessment, the ALJ could reject it only for clear and convincing reasons supported by substantial evidence. The ALJ’s reliance on Lewis’s relationships with family and friends, participation in group sports, and lack of more recent formal treatment did not satisfy that demanding standard.
Maintaining familiar personal relationships and playing sports are not equivalent to functioning consistently in a workplace with people who may not understand a claimant’s limitations. Further, Dr. Duggan had treated Lewis extensively, continued to speak with him by phone, and had discharged him because his organic impairment limited the progress treatment could achieve. The ALJ therefore lacked a valid basis to exclude Dr. Duggan’s limitations, and the resulting vocational testimony could not support the step-five denial.