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Mulanax v. Comm. of Social Security

United States Court of Appeals, Ninth Circuit
Sep 18, 2008
293 F. App'x 522 (9th Cir. 2008)

Summary

holding receipt of unemployment benefits that were payable to applicants available for temporary or part-time jobs was not necessarily inconsistent with a claim of disability under the Social Security Act

Summary of this case from Edmond v. Berryhill

Opinion

No. 06-35731.

Submitted August 27, 2008.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed September 18, 2008.

PMB # 294, West Linn, OR, for Plaintiff-Appellant.

Karen Immergut, Esq., Office of the U.S. Attorney Mark 0. Hatfield U.S. Courthouse, Portland, OR, David R. Johnson, Esq., Social Security Administration Office of the General Counsel, Seattle, WA, for Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. CV-05-00421-AJB.

Before: T.G. NELSON, HAWKINS, and BYBEE, Circuit Judges.



MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Julia Mulanax appeals the district court's order affirming the Commissioner of Social Security's denial of her application for disability insurance benefits under the Social Security Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's judgment affirming the Commissioner's denial of benefits de novo. Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). We reverse and remand.

The Administrative Law Judge (ALJ) erred by failing to request medical source statements from Dr. Tibbitts because the evidence as to what Mulanax could still do despite her impairments was ambiguous and incomplete. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).

Additionally, the ALJ erred by failing to give any consideration to lay witness Diana Long's statements addressing Mulanax's ability to work. See 20 C.F.R. § 416.913(d)(4). Because Long's statements bolstered Mulanax's claims of fatigue, that error is not harmless. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006).

The ALJ's rejection of Dr. Calvert's conclusions was not supported by substantial evidence in the record. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). The ALJ rejected Dr. Calvert's conclusions because the ALJ objected to the form Dr. Calvert used. The ALJ has a duty to fully develop the record. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If the ALJ questioned Dr. Calvert's conclusions, the ALJ should have conducted an inquiry by subpoenaing Dr. Calvert or submitting further questions to him. See id. Also, Dr. Calvert's statements that Mulanax seems to feel better since she ceased working and that working is "really difficult" for Mulanax with her fibromyalgia support Dr. Calvert's opinion that Mulanax was unable to work

We need not reach the issue of the ALJ's credibility determination because the ALJ will need to reassess Mulanax's credibility based on the record developed upon remand. Nonetheless, we note that Mulanax's receipt of unemployment benefits does not by itself support a conclusion that she is not credible. Generally, in order to be eligible for disability benefits under the Social Security Act, the person must be unable to sustain full-time work-eight hours per day, five days per week. See SSR 96-8p. However, under Oregon law, a person is eligible for unemployment benefits if she is available for some work, including temporary or part time opportunities. See Or. Admin. R. 471-030-0036(2)(b), (3)(b). Therefore, Mulanax's claim of unemployment in Oregon is not necessarily inconsistent with her claim of disability benefits under the Social Security Act.

Furthermore, we note that there is no support in the record for the proposition that only a neurologic abnormality can cause a "burning" sensation. Additionally, Mulanax's testimony that she was fatigued and would fall asleep while working is corroborated by Long's statements, Dr. Wood's report that Mulanax was so tired she almost fell off of her chair at work, and references to fatigue throughout Mulanax's medical records.

Finally, the ALJ should revisit his conclusions regarding Dr. Tibbitts' GAF assessment as well as his determination that Mulanax's migraines are controlled by medication in light of the record as it is developed upon remand. We have considered and reject and all other claims raised on appeal.

We remand to the district court with instructions to remand to the Commissioner for further proceedings consistent with this decision.

REVERSED AND REMANDED.


Summaries of

Mulanax v. Comm. of Social Security

United States Court of Appeals, Ninth Circuit
Sep 18, 2008
293 F. App'x 522 (9th Cir. 2008)

holding receipt of unemployment benefits that were payable to applicants available for temporary or part-time jobs was not necessarily inconsistent with a claim of disability under the Social Security Act

Summary of this case from Edmond v. Berryhill

explaining that eligibility for Social Security disability benefits is predicated on an inability to sustain full-time work, not part-time work, which is why the receipt of unemployment benefits is not necessarily inconsistent with the filing of a disability application

Summary of this case from Hunter v. Berryhill

explaining that eligibility for disability benefits under the Social Security Act is predicated on an inability to sustain full-time work, not part-time work, which is why the receipt of unemployment benefits is not necessarily inconsistent with the filing of a disability application, absent evidence that the claimant represented to the unemployment office that he or she was ready, able, and applying for full-time positions

Summary of this case from Knight v. Colvin
Case details for

Mulanax v. Comm. of Social Security

Case Details

Full title:Julia MULANAX, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY…

Court:United States Court of Appeals, Ninth Circuit

Date published: Sep 18, 2008

Citations

293 F. App'x 522 (9th Cir. 2008)

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