Opinion
D.C. No. CV-97-01757-EHC
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted June 17, 1999.
Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.
Before T.G. NELSON, HAWKINS, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand with instructions that the district court remand the case to the Social Security Administration for an immediate award of benefits.
The district court's decision to remand for further proceedings rather than for payment of benefits is reviewed for an abuse of discretion. Harman v. Apfel, 203 F.3d 1151, 1155 (9th Cir.2000). "A district court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100 (1996). We conclude that the district court committed an error of law by failing to remand for payment of benefits as required by our decision in Smolen v. Chater, 80 F.3d 1273 (9th Cir.1996).
The Administrative Law Judge ("ALJ") failed to credit Baca's pain testimony and Dr. Gluck's opinion and diagnosis. Because "(1) the ALJ ... failed to provide legally sufficient reasons for rejecting [this] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited," id. at 1292, remand for an immediate award of benefits is required here. Harman, 203 F.3d at 1158 (noting continued viability of Smolen ).
A. Baca's Subjective Pain Testimony
The ALJ concluded that Baca's subjective pain testimony was not credible because "the clinical records do not reflect any objective evidence of chronic pain." But, in an excess pain case, "[o]nce the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998). A claimant is not required to demonstrate that the "degree of pain alleged ... [is] supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir.1991) (en banc).
To the extent that there may be objective symptoms and common medical evidence of fibromyalgia, they were exhibited in Baca's case. From early in her treatment, Baca exhibited generalized pain, fatigue, and "multiple tender spots"--all symptoms consistent with diagnosis of fibromyalgia. Dr. Gluck's diagnosis of "Sjogren's syndrom with associated fibromyalgia" was reached only after several months of laboratory tests and treatment. Given the nature of fibromyalgia and fatigue, Baca's symptoms, and the medical evidence that supports those findings to the extent possible, the ALJ committed error when he discredited Baca's pain testimony for lack of objective medical evidence. On appeal, Baca's testimony must be credited as a matter of law. Varney v. Secretary of Health and Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988).
B. Dr. Gluck's Opinion
The ALJ's reasons for rejecting the testimony of Dr. Gluck, Baca's treating physician, were not supported by substantial evidence. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1996).
First, Dr. Gluck's medical records demonstrate that he examined Baca at least fifteen times between March 8, 1994, and November 3, 1995. Over the course of these visits, Dr. Gluck ordered numerous diagnostic laboratory tests, prescribed multiple pain medications in increasing dosages, administered trigger-point injections and general pain killers, and placed Baca on "water therapy." These facts do not demonstrate "absence of frequent treatment."
Second, as already discussed, the ALJ's adverse credibility determination of Baca is not supported by substantial evidence. It naturally follows, then, that it was also improper for the ALJ to cite Baca's purported lack of credibility as a reason for discrediting Dr. Gluck's opinion and diagnosis.
Third, the ALJ improperly gave more weight to the opinions of non-treating physicians than to the opinion of Dr. Gluck "without providing 'specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. (quoting Murray v. Heckler, 722 F.2d 499, 522 (9th Cir.1983)). Accordingly, we must credit Dr. Gluck's opinion as a matter of law. See Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989).
C. Hypothetical Posed to Vocational Expert
Because the ALJ had improperly discredited the opinion of Dr. Gluck and the subjective pain testimony of Baca, he did not incorporate Baca's pain when formulating the hypothetical question posed to the vocational expert. Therefore, the vocational expert's opinion that Baca is capable of working has no evidentiary value. Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir.1991).
D. Whether the ALJ Would be Required to Find Baca Disabled if Evidence Were Properly Credited
After completing his questioning of the vocational expert at Baca's hearing, the ALJ said to Baca's counsel:
Let me just make a statement though and you can decide how many questions you want to ask. If I determine that the claimant's testimony is completely credible, there would be no jobs that she could perform in the competitive labor market.
By the ALJ's own acknowledgment, if Baca's testimony was credible, then there were no jobs she could perform in the competitive labor market, and she was necessarily "disabled" as defined by the Social Security Act. See 42 U.S.C.§ 423(d)(2)(A).
E. Conclusion
Because there are no unresolved issues and it is clear from the record that the ALJ would be required to find Baca disabled if the testimony of Baca and Dr. Gluck were properly credited, Smollen, 80 F.3d at 1292, we conclude that the district court erred as a matter of law in remanding for further proceedings rather than for an award of benefits.
REVERSED and REMANDED with instructions.