James Herron v. Michael Astrue , 407 F. App'x 139 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES Y. HERRON, No. 09-16872
Plaintiff - Appellant, D.C. No. 1:07-cv-00623-HG-LEK
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, Senior District Judge, Presiding
Submitted December 10, 2010 **
San Francisco, California
Before: COWEN ***, TASHIMA and SILVERMAN, Circuit Judges.
*
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).
***
The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
-2-
James Herron appeals the district court’s judgment, which affirmed the
Commissioner of Social Security’s denial of Disability Insurance Benefits. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
The district court’s decision is reviewed de novo, and the Commissioner’s
decision to deny disability benefits may be set aside if not supported by substantial
evidence or based on legal error. Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th
Cir. 1995). Herron argues that substantial evidence does not support the ALJ’s
findings that: (1) his testimony was not entirely credible, and (2) he retained the
residual functional capacity to return to his past relevant work as a disaster site
consultant. We agree. Substantial evidence does not support the former finding
because “an ALJ may not reject a claimant’s subjective complaints based solely on
a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch
v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Substantial evidence also does not
support the latter finding because the ALJ erroneously failed to take into account
the actual physical demands of Herron’s past work and compare such demands
with Herron’s present physical capacity. See Villa v. Heckler, 797 F.2d 794, 797-
98 (9th Cir. 1986). He also relied solely on the testimony of a vocational expert
whose conclusions were based on an overly generalized occupational description
and an assumption that Herron’s past work was sedentary. See Soc. Sec. Rul. No.
-3-
82-61 (“[f]inding that a claimant has the capacity to do past relevant work on the
basis of a generic occupational classification of the work is likely to be fallacious
and unsupportable”); see also Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir.
2001).
Herron also claims the ALJ erroneously evaluated the medical evidence in
the record, including a residual functional capacity evaluation prepared by
Herron’s nurse practitioner, the opinion of a State agency medical consultant, and a
VA disability ratings determination. We agree. The ALJ improperly discounted
the nurse practitioner’s evaluation solely on the ground that it was rendered outside
Herron’s disability period. See Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir.
1988).1 The ALJ also gave “great weight” to the non-treating State agency
consultant’s opinion even though the consultant’s identity and specialty were
unknown and the consultant did not review a substantial portion of the relevant
medical evidence, including the records from Herron’s treating physicians and
nurse practitioner. See 20 C.F.R. §§ 404.1527(a)-(e), (f)(2)(ii). Finally, the ALJ
1
Although the evaluation may not have been entitled to controlling weight
because a nurse practitioner is not an “acceptable medical source,” 20 C.F.R. §
404.1527(d), the ALJ did not invoke that reason in rendering his decision. We
therefore cannot approve of the ALJ’s treatment of the nurse practitioner’s
evaluation on that ground. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir.
2001) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
-4-
failed to give any valid or persuasive reasons for discounting the VA disability
ratings determination, which concluded that Herron was 70% disabled due to
Buerger’s disease as of January 1998. See McCartey v. Massanari, 298 F.3d 1072,
1076 (9th Cir. 2002) (ALJ must give “persuasive, specific, valid reasons . . .
supported by the record” when giving less than “great weight” to a VA rating).2
We reverse and remand to the district court with instructions that it further
remand to the Commissioner for a determination of whether, in light of the above
conclusions, Herron has the residual functional capacity to perform his past
relevant work as actually performed and/or generally performed in the national
economy, and if not, whether he can perform other substantial gainful work in the
national economy.
REVERSED and REMANDED.
2
Because of our disposition, it is unnecessary to reach Herron’s additional
contentions that the ALJ erroneously failed to call a medical expert and failed to
further develop the record, and whether those contentions have been waived.