Jason Ernst v. Carolyn Colvin , 601 F. App'x 474 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JASON ERNST, No. 13-35462
Plaintiff - Appellant, D.C. No. 3:12-cv-05297-BHS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted November 3, 2014**
Before: LEAVY, GRABER, and W. FLETCHER, Circuit Judges.
Jason Ernst appeals the district court’s judgment affirming the denial of his
applications for disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review the administrative law judge (“ALJ”)’s decision for
substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We
vacate and remand for reconsideration.
Ernst is thirty years old. He has been developmentally delayed his entire
life, likely as a result of fetal alcohol syndrome. He graduated from an “extended”
high school program in 2004, at age twenty. While in high school, he enrolled in a
local employment support program, through which he bagged groceries and
mopped bathrooms at Safeway. He was fired in 2006 because he had trouble
following instructions and remembering to show up for work. Over the next two
years, Ernst was hired at, and subsequently fired from, at least five jobs, never
remaining employed for more than three months. In one of these jobs, he worked
briefly and unsuccessfully as a janitor. His employers found he could not perform
tasks quickly enough, and often forgot simple instructions. As he put it during his
disability hearing, “[N]o matter how hard I would try, I’d always be behind.”
Ernst applied for disability benefits in 2009. In connection with his
application, Ernst was evaluated by two psychologists, Michael Boltwood and
Norma Brown. Both doctors concluded that Ernst was very slow in processing
information and performing tasks. Both doctors tested his cognitive processing;
his performance was below the tenth percentile. Dr. Boltwood gave him a
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Wechsler Adult Intelligence Scale (WAIS) test, and found that his “full scale” IQ
was below the seventh percentile. His “working memory” and “processing speed”
scores fell below the third and fourth percentiles. Dr. Boltwood nonetheless
concluded that Ernst could find and keep employment, based on “his demonstrated
ability to find work in the past.” Dr. Brown concluded that Ernst could not: “He
will likely need to work, if he does, in a sheltered work environment which
provides for one-to-one supervision.”
In 2009, the state agency denied Ernst’s application for disability benefits,
and he requested a hearing before an ALJ. At the hearing, the ALJ took testimony
from Ernst and a vocational expert. In January 2011, the ALJ denied Ernst’s claim
for benefits. He gave “significant weight” to Dr. Boltwood’s opinion that Ernst
could “sustain gainful employment in spite of his cognitive limitations” and “little
weight” to Dr. Brown’s opinion that Ernst would need to work in a sheltered work
environment. He noted that Dr. Brown did not review Ernst’s IQ scores and “did
not adequately consider the fact that the claimant worked successfully at Safeway.”
He further concluded, on the basis of the vocational expert’s testimony, that Ernst
could likely find sustained work as a janitor, a production assembler, or as a hand
packager.
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Ernst argues that the ALJ failed to consider whether he is capable of
working on a sustained basis outside of “sheltered” environments. See Gregory v.
Bowen, 844 F.2d 664, 667 (9th Cir. 1988). We agree. The weight of the evidence
suggests that Ernst has never held a job for any sustained period outside of
sheltered environments. The only job that Ernst held for more than four months
was his job as a courtesy clerk at Safeway, which he obtained through a supported
employment program. The ALJ relied on Dr. Boltwood’s conclusion that Ernst
could “sustain gainful employment in spite of his cognitive limitations” based on
Ernst’s “demonstrated ability to find work in the past.” But “substantial gainful
activity means more than merely the ability to find a job and physically perform it;
it also requires the ability to hold the job for a significant period of time.” Gatliff
v. Comm’r of Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999). Here, while
Ernst has been able to find work, he has never been able to keep it: he has quickly
lost every non-sheltered job he has ever had because his employers find he is
incapable of following instructions and works too slowly. The ALJ made no
mention of this evidence.
The ALJ improperly discounted the opinion of Dr. Brown that Ernst was
incapable of performing competitive work on a sustained basis. When two doctors
disagree, an ALJ is entitled to reject one doctor’s opinion only on the basis of
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“specific and legitimate reasons.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005). Here, Dr. Brown concluded that Ernst could work on a sustained basis,
if at all, only in a sheltered environment. The ALJ gave “little weight” to her
opinion, concluding that it was “inconsistent with the medical record as a whole.”
The ALJ noted in particular that Dr. Brown had not had the “opportunity to review
[Ernst’s] 2009 WAIS-III test scores.” It is true that Dr. Brown did not perform a
WAIS test, and she appears not to have seen the results of the WAIS test
performed by Dr. Boltwood. But if Dr. Brown had seen the result of Dr.
Boltwood’s WAIS test, she would have discovered that Ernst’s “processing speed”
was in the fourth percentile, and that his “working memory” was in the third
percentile. Far from undermining Dr. Brown’s opinion, these scores would have
strongly supported it. The only remaining distinction between the psychologists’
assessments is that Dr. Boltwood did not consider — and may not have been aware
of — the evidence that Ernst had never been able to keep a job in a non-sheltered
environment. The ALJ therefore lacked “specific and legitimate reasons” to credit
Dr. Boltwood’s opinion over Dr. Brown’s.
Because the ALJ failed to consider whether Ernst is capable of performing
sustained competitive work outside of sheltered environments, we VACATE and
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REMAND for reconsideration of Ernst’s application for benefits. The parties shall
bear their own costs on appeal.
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FILED
Ernst v. Colvin, 13-35462 FEB 09 2015
LEAVY, Circuit Judge, dissenting. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The ALJ found that Ernst has severe impairments in the form of borderline
intellectual functioning, mood disorder, and generalized anxiety disorder. However,
the ALJ also found that Ernst’s statements concerning the intensity, persistence, and
limiting effects of these symptoms are not credible to the extent they are inconsistent
with the residual functional capacity assessment, and that Ernst reported inconsistently
regarding his activities of daily living. The ALJ considered the opinions of two
consulting psychologists, Dr. Boltwood and Dr. Brown.
The ALJ found Dr. Boltwood’s opinion well-supported with clinical findings
and consistent with the medical record as a whole. Dr. Boltwood opined, “I agree that
[Ernst] would be a good candidate for a program such as DVR [Department of
Vocational Rehabilitation] that would help him with the process of finding suitable
employment and hopefully also providing ongoing vocational support.” Dr.
Boltwood gave no opinion about working in a “sheltered workshop.”
The ALJ discussed Dr. Norma Brown’s opinion that the claimant “may have
mild mental retardation and would likely need to work in a sheltered work
environment that provides on-on-one supervision.” The ALJ gave Dr. Brown’s
opinion little weight because, although her opinion was consistent with her own
clinical findings, her opinion was inconsistent with the record as a whole. The ALJ
explained:
“As noted above, upon examination in 2009, the claimant performed
relatively well on mental status exam and described relatively intact daily
activities. It does not appear that [Dr. Brown] had the opportunity to
review the claimant’s 2009 WAIS-III test scores. In addition, she did not
adequately consider the fact that the claimant worked successfully at
Safeway and reported that he lost the job due to partying too much.”
The ALJ discussed the findings and opinions of both consulting psychologists,
and based his finding of “not disabled” on the testimony of a vocational expert to the
effect that claimant could do the jobs of janitor, production assembler, and hand
packager.
I dissent because I can find no fault with the ALJ’s findings and decision.
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