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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

 
 
 
    

REDDICK v CHATER

Patient with CFS wins Social Security Disability benefits;

court rules that ALJ used wrong sources of information in

making original denial.

U.S. 9th Circuit Court of Appeals

REDDICK v CHATER
9715111

SUSAN REDDICK,
Plaintiff-Appellant,                                  No. 97-15111
 
v.                                                    D.C. No.
CV-96-20331-RMW
SHIRLEY S. CHATER, Commissioner
of Social Security Administration,                    OPINION
Defendant-Appellee.
 
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
 
Argued and Submitted
February 12, 1998--San Francisco, California
 
Filed October 6, 1998



Before: Procter Hug, Jr., Chief Judge,

Ferdinand F. Fernandez and Sidney R. Thomas,

Circuit Judges.



Opinion by Chief Judge Hug





COUNSEL



Mark H. Lipton, Lipton, Warnlof & Segal, Walnut Creek,

California, for the plaintiff-appellant.



John C. Cusker, Assistant Regional Counsel, Social Security

Administration, San Francisco, California, for the defendant-

appellee.



OPINION



HUG, Chief Judge:



This case involves a claim for Social Security disability

benefits by Susan Reddick ("Claimant") who was diagnosed

with Chronic Fatigue Syndrome ("CFS"). The Administrative

Law Judge ("ALJ") found that Claimant suffered from CFS

but that she was not disabled because the disease did not

undermine her ability to perform substantial gainful work.

The district court concluded that the ALJ's decision was sup-

ported by substantial evidence and granted summary judg-

ment for the Commissioner. A principal issue in this case is

whether the ALJ was justified in discounting the testimony of

Claimant, her treating doctor, and an examining doctor con-

cerning her disability from fatigue, and instead relying upon

the testimony of two consultative examiners who concluded

that she was not disabled. We have jurisdiction under 28

U.S.C. S 1291 and we reverse the judgment of the district

court and remand with instructions to remand to the ALJ for

an award of benefits.



I.



Procedural and Factual Background



Claimant filed an application for disability insurance bene-

fits under Title II of the Social Security Act, 42 U.S.C. SS 401

et seq., alleging that she had been unable to work since Octo-

ber 4, 1989 due to CFS. Claimant's application was denied

initially and upon reconsideration by the ALJ. The ALJ's

decision became the final decision of the Commissioner when

the Appeals Council declined review. Claimant filed a timely

complaint for review by the federal district court. The parties

each filed motions for summary judgment. The district court

denied Claimant's motion and granted the Commissioner's.

Claimant filed a timely appeal.



Claimant was born in 1956 and was thirty eight years old

at the time of her hearing before the ALJ. Her education

includes high school and some secretarial schooling. She last

worked in 1989 as a payroll clerk at Adept Technology, pro-

cessing time cards and preparing computerized reports. Dur-

ing her tenure at Adept, she complained of severe fatigue and

an inability to stay awake to perform her work. She was put

on disability in October 1989. At this time, Claimant was see-

ing her treating physician, Dr. Jacobson, who diagnosed a

viral syndrome. In April 1990, he diagnosed a fatigue syn-

drome, with a possible viral illness and possible narcolepsy,

also noting depression. Dr. Jacobson referred Claimant to a

neurologist, Dr. Likowsky, who examined her in May 1990

and concluded that she probably had a fatigue syndrome, pos-

sibly with a psychological basis. Dr. Likowsky indicated that

other possible diagnoses should be eliminated, and he

ordered, among other examinations, a psychiatric evaluation.

Claimant was examined by a psychologist, Dr. Cheng, in

August 1990. She informed Dr. Cheng that she first experi-

enced persistent fatigue in 1988. He noted that CFS required

diagnosis by exclusion and recommended lab testing.



Dr. Jacobson diagnosed CFS in October 1990. In Novem-

ber, at the request of Claimant's long-term disability carrier,

GroupAmerica Insurance, Claimant was examined by Dr.

Charney, an internal medicine and infectious disease special-

ist. Dr. Charney found that Claimant met the major criteria for

CFS established by the Centers for Disease Control ("CDC").

He also noted the presence of the Epstein-Barr antibody, fre-

quently associated with CFS. Dr. Charney described "severe

fatigue" and stated in his report to GroupAmerica that Claim-

ant was disabled.



In January, 1991, Dr. Jacobson again diagnosed CFS. He

noted that Claimant was tired and was undertaking aerobic

exercises once weekly. He recommended exercise three to

five times per week for thirty to forty-five minutes and pre-

scribed Motrin and Tagamet. Claimant was examined by Dr.

Campen, a rheumatologist, in February 1991. Dr. Campen

agreed with Dr. Jacobson's diagnosis of CFS, although noting

that CFS is a somewhat nebulous term with multiple contrib-

uting factors. Dr. Campen agreed with Dr. Likowsky that psy-

chological issues played a role in Claimant's condition. He

encouraged Claimant to attempt to pursue employment alter-

natives.



GroupAmerica Insurance, which had referred Claimant to

Dr. Charney in 1990, referred her to Dr. Ng in February 1992.

After reviewing previous medical records and performing a

history and physical, Dr. Ng agreed with Dr. Charney that

Claimant met the CDC's criteria for CFS.



Claimant saw her treating physician, Dr. Jacobson, on sev-

eral occasions during 1992 and 1993. Dr. Jacobson continued

to diagnose CFS during this period, also noting swollen

ankles and weight gain. Claimant had ceased aerobics and

was attempting to exercise with a stationary bicycle and stair

machine. A low-grade fever, one of the criteria for CFS,

appears throughout the record. On June 4, 1993, Dr. Jacobson

wrote a letter in response to a request from GroupAmerica,

reporting that Claimant's specific limitations included myal-

gias and chronic debilitating fatigue, with a diagnosis of CFS.

Dr. Jacobson noted that Claimant had been unable to work

since October 1989. Three and a half years of extensive labo-

ratory testing had excluded thyroid problems, diabetes, ane-

mia, auto-immune diseases, lyme disease, hepatitis, renal

failure, calcium disturbance, gall bladder problems and other

diseases. The letter concluded: "The specific limitations that

Ms. Reddick has that keep her from performing any occupa-

tion on a full time basis are her myalgias, but even more

importantly her chronic debilitating fatigue."



Also in 1993, two Social Security consultative examiners

saw Claimant in connection with her disability claim. Dr.

Wood, of Health Analysis, Inc., examined Claimant and filled

out an occupational health medical report in June. Dr. Wood

diagnosed possible CFS, and noted exogenous obesity (174

pounds) and a depressive reaction. He found no functional

limitations on hand or fine finger movements, sitting, stand-

ing, or walking. Dr. Wood noted that Claimant had "extreme

lethargy," but made no comment on how lethargy would

affect her ability to function.



Dr. Moseley, a psychologist, the second Social Security

consultative examiner, saw Claimant in August 1993. Dr.

Moseley did not have Claimant's medical file available to

him, except for the recent occupational health report from Dr.

Wood. After conducting some psychological tests, Dr. Mose-

ley concluded that Claimant's scores "were well within the

range necessary to carry out routine or customary job

instructions." Based on the psychological results, he con-

cluded that "[s]he may be expected to resume . . . an eight-

hour workday routine and 40-hour work week."

In response to a request by Claimant's attorney in June

1994, Dr. Jacobson indicated that Claimant's condition had

not changed since his 1993 report.



II.



Standard of Review



We review a district court's order upholding the Commis-

sioner's denial of benefits de novo. Jamerson v. Chater, 112

F.3d 1064, 1066 (9th Cir. 1997). The Commissioner's find-

ings may be set aside if they are based on legal error or are

not supported by substantial evidence. Smolen v. Chater, 80

F.3d 1273, 1279 (9th Cir. 1996). Substantial evidence is more

than a scintilla, but less than a preponderance. Jamerson, 112

F.3d at 1066. Substantial evidence is relevant evidence which

a reasonable person might accept as adequate to support a

conclusion. Id.; Smolen, 80 F.3d at 1279. In determining

whether the Commissioner's findings are supported by sub-

stantial evidence, we must review the administrative record as

a whole, weighing both the evidence that supports and the

evidence that detracts from the Commissioner's conclusion.

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989);

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If the

evidence can reasonably support either affirming or reversing

the Secretary's conclusion, the court may not substitute its

judgment for that of the Secretary. Flaten v. Secretary of

Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).



III.



ALJ's Credibility and Disability Findings



To qualify for disability benefits, a claimant must show that

a medically determinable physical or mental impairment pre-

vents her from engaging in substantial gainful activity and

that the impairment is expected to result in death or to last for

a continuous period of at least twelve months. 42 U.S.C.



S 423 (d)(1)(a). The claimant carries the initial burden of

proving disability. Id. at S 423(d)(5); Swenson v. Sullivan, 876

F.2d 683, 687 (9th Cir. 1989). Where the claimant establishes

an inability to perform her prior work, the burden shifts to the

Secretary to show that the claimant can perform other sub-

stantial gainful work that exists in the national economy.

Swenson, 876 F.2d at 687.



Disability claims are evaluated according to a five-step pro-

cedure. Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir.

1991). In step one, the Secretary determines whether a claim-

ant is currently engaged in substantial gainful activity. If so,

the claimant is not disabled. 20 C.F.R. S 404.1520(b). In step

two, the Secretary determines whether the claimant has a

"medically severe impairment or combination of impair-

ments," as defined in 20 C.F.R. S 404.1520(c). If the answer

is no, the claimant is not disabled. If the answer is yes, the

Secretary proceeds to step three and determines whether the

impairment meets or equals a "listed" impairment that the

Secretary has acknowledged to be so severe as to preclude

substantial gainful activity. 20 C.F.R. S 404.1520(d). If this

requirement is met, the claimant is conclusively presumed

disabled; if not, the Secretary proceeds to step four. At step

four, the Secretary determines whether the claimant can still

perform "past relevant work." 20 C.F.R. S 404.1520(e). If the

claimant can perform such work, she is not disabled. If the

claimant meets the burden of establishing an inability to per-

form prior work, the Secretary must show, at step five, that

the claimant can perform other substantial gainful work that

exists in the national economy. 20 C.F.R. S 1520(f).



In this case, the ALJ determined that Claimant satisfied the

criteria for steps one, two and three. He accepted the CFS

diagnosis and acknowledged that Claimant had a "severe

impairment." Because CFS is not a listed impairment as

defined in 20 C.F.R. S 404.1520(d), he noted that the case was

to be resolved at step four or five:

The critical issue to be decided in this case is

whether the claimant retains the residual functional

capacity to return to her past relevant work or to do

other substantial gainful work that exists in signifi-

cant numbers in the national economy.



The ALJ did not proceed to step five, instead concluding at

step four that Claimant failed to meet her burden of proving

that she could not perform her past work as a payroll clerk.

Claimant's accounts of the debilitating effects of her disease

were determined not to be credible, in large part due to the

ALJ's conclusion that the record reflected an ability to do

housework, to undertake occasional weekend trips, and to

engage in certain forms of exercise. The ALJ discounted the

credibility of Claimant's treating physician and an examining

physician, stating that their assessments were based on the

subjective complaints of Claimant, who was found not credi-

ble. Both physicians had determined that Claimant was dis-

abled. The ALJ instead relied on the assessments of the two

Social Security consultative examiners, who he deemed to be

more objective.
  



1. Claimant's Credibility



Claimant contends that the ALJ's credibility findings were

unsupported by substantial evidence in the record. Claimant

argues that the ALJ erroneously discounted her physical com-

plaints, where the record indicates no inconsistencies or

embellishments. Claimant also argues that the ALJ mischarac-

terized the record in an effort to discount the severity of her

symptoms. In addition, the ALJ erred by failing to account for

the effects of persistent fatigue on Claimant's residual func-

tional capacity to perform substantial gainful work.



[1] We recognize that the ALJ is responsible for determin-

ing credibility, resolving conflicts in medical testimony, and

for resolving ambiguities. Andrews v. Shalala , 53 F.3d 1035,

1039 (9th Cir. 1995). The ALJ's findings, however, must be

supported by specific, cogent reasons. Rashad v. Sullivan, 903

F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces

medical evidence of an underlying impairment, the Commis-

sioner may not discredit the claimant's testimony as to the

severity of symptoms merely because they are unsupported by

objective medical evidence. Bunnell v. Sullivan 947 F.2d 341,

343 (9th Cir. 1991) (en banc). Unless there is affirmative evi-

dence showing that the claimant is malingering, the Commis-

sioner's reasons for rejecting the claimant's testimony must

be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1996) (internal quotation marks omitted); Swenson,

876 F.2d at 687. "General findings are insufficient; rather, the

ALJ must identify what testimony is not credible and what

evidence undermines the claimant's complaints." Lester, 81

F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.

1993).



[2] We conclude that the ALJ's finding that Claimant's

activities indicate an ability to work is unsupported by the

record. The activities Claimant described to her doctors, on

disability forms, and at her hearing, were fully consistent with

CFS. Her activities were sporadic and punctuated with rest.

Even more prolonged undertakings might be consistent with

the disease, as CFS is "characterized by periods of exacerba-

tion and remission." Cohen v. Secretary of Health & Human

Servs., 964 F.2d 524, 530 (6th Cir. 1992) (describing the epi-

sodic nature of CFS). Several courts, including this one, have

recognized that disability claimants should not be penalized

for attempting to lead normal lives in the face of their limita-

tions. See, e.g., Cohen, 964 F.2d at 530-31 (ruling that a

claimant should not be penalized for attempting to maintain

some sense of normalcy in her life); Cooper v. Bowen, 815

F.2d 557, 561 (9th Cir. 1987)(noting that a disability claimant

need not "vegetate in a dark room" in order to be deemed eli-

gible for benefits). See also Fair v. Bowen, 885 F.2d 597, 603

(9th Cir. 1989) ("Many home activities are not easily transfer-

able to . . . the more grueling environment of the workplace,

where it might be impossible to periodically rest or take

medication."). Only if the level of activity were inconsistent

with Claimant's claimed limitations would these activities

have any bearing on Claimant's credibility.



Our examination of the record shows that the ALJ has erred

in characterizing statements and documents contained therein

to reach the conclusion that Claimant exaggerated her symp-

toms. Examples include the ALJ's description of Claimant's

aerobic activity and Tupperware sales,1 and his characteriza-

tion of an activities report completed by Claimant's sister-in-

law.2 In essence, the ALJ developed his evidentiary basis by

not fully accounting for the context of materials or all parts

of the testimony and reports. His paraphrasing of record mate-

rial is not entirely accurate regarding the content or tone of

the record. We conclude that his approach and conclusions do

not fully account for the nature of CFS and its symptoms.3

See, e.g., Sarchet v. Chater, 78 F.3d 305, 307-09 (7th Cir.

1996) (reversal required where ALJ's characterization of the

record reflected misunderstanding of CFS); Sisco v. Health &

Human Servs., 10 F.3d 739, 743-46 (10th Cir. 1993) (reversal

required where ALJ's credibility findings and interpretation

of the record were not supported by substantial evidence).4

[3] There is considerable evidence in the record that

detracts from the ALJ's conclusions. Nowhere has the ALJ

pointed to affirmative evidence of malingering. Instead, he

quotes a general comment by a consulting examiner, Dr. Ng,

about the facility with which CFS symptoms can be exagger-

ated. This fact is true, and makes CFS cases difficult to adju-

dicate, but a general observation such as this in an insufficient

reason to discount Claimant's credibility. In fact, Dr. Ng con-

cluded that Claimant met the CDC's criteria for the diagnosis

of CFS and was disabled.5 Nor did the ALJ emphasize that

four other doctors agreed with the CFS diagnosis, a fifth doc-

tor diagnosed possible CFS, and a sixth diagnosed a fatigue

syndrome. None of the examining doctors provided medical

evidence countering the CFS diagnosis. Claimant tested posi-

tive for the Epstein-Barr antibody, which frequently correlates

with CFS. She exhibited the constellation of symptoms often

associated with CFS, including a persistent low-grade fever.6

She also underwent years of testing and examination to rule

out other possible illnesses. In addition, the record shows that

Claimant periodically advised her doctors when she was feel-

ing somewhat better. This is unlikely behavior for a person

intent on overstating the severity of her ailments. We con-

clude that the ALJ provided unsatisfactory reasons for dis-

counting Claimant's credibility, and that his findings were

unsupported by substantial evidence based on the record as a

whole.



2. Residual Functional Capacity



[4] The ALJ also failed to take into account the debilitating

effects of CFS when making his determination, at step four,

that Claimant had the residual functional capacity to perform

her past work. Although the ALJ found that "the medical evi-

dence establishes that Claimant has chronic fatigue

syndrome," the ALJ's evaluation of functional capacity

ignored the key symptom of CFS, which is persistent fatigue.



[5] Social Security regulations define residual functional

capacity as the "maximum degree to which the individual

retains the capacity for sustained performance of the physical-

mental requirements of jobs." 20 C.F.R. 404, Subpt. P, App.

2 S 200.00(c) (emphasis added). In evaluating whether a

claimant satisfies the disability criteria, the Commissioner

must evaluate the claimant's "ability to work on a sustained

basis." 20 C.F.R. S 404.1512(a); Lester , 81 F.3d at 833 (inter-

nal quotation marks omitted). The regulations further specify:

"When we assess your physical abilities, we first assess the

nature and extent of your physical limitations and then deter-

mine your residual functional capacity for work activity on a

regular and continuing basis." Id. atS 404.1545(b). This court

has noted that "[o]ccasional symptom-free periods - and even

the sporadic ability to work-are not inconsistent with

disability." Lester, 81 F.3d at 833.



The ALJ's finding that Claimant could return to her past

work as a payroll clerk was premised, almost exclusively, on

reports by two consulting examiners hired in 1993 in connec-

tion with Claimant's disability claim. Dr. Wood examined

Claimant on a one-time basis and found "no muscle atrophy,

normal reflexes, normal grip strength, and a full range of

motion of all extremities." He found "no limitations in sitting,

standing, walking, hand movements, or fine finger

movements," and estimated that she would be able to "lift,

push, or pull up to 15 to 20 pounds without difficulty." Claim-

ant's ability to perform light work was evaluated on the basis

of these orthopedic factors only. Although Dr. Wood's report

also included a diagnosis of "possible CFS" and a notation

that Claimant manifested "extreme lethargy," the potential

effects of fatigue on her functional capacity were not consid-

ered.



Dr. Moseley, a psychologist, administered a series of stan-

dard psychological tests and, finding that Claimant had no

major social deficits, concluded that she could return to an

"eight-hour workday routine and forty-hour work week." Dr.

Moseley did not have Claimant's medical file, except for the

brief report written by Dr. Wood two months prior. Neither

doctor assessed Claimant's ability to perform sustained work.



[6] Because the ALJ's evaluation of residual functional

capacity failed to address claimant's ability to undertake sus-

tained work activity, his analysis did not comport with the

Social Security Administration's regulatory requirements. See

Cohen, 964 F.2d at 529 ("Although her mental capacity per-

haps would have been more than adequate, Cohen simply

would have lacked the stamina for such employment."); Rose,

34 F.3d at 19 ("The question here is the extent to which

claimant's fatigue in fact restricts his residual functional

capacity."); Williams v. Shalala, 1995 WL 328487, at *6

(holding that, where the ALJ failed to consider claimant's

non-exertional limitations, the "ALJ's decision, on the whole,

reflect[ed] an analysis inconsistent with the appropriate

framework for assessing disability claims premised on

CFS."). The ALJ's finding on residual functional capacity

was not supported by substantial evidence as it failed to

account for the effects of fatigue on Claimant's ability to

function in the workplace.



3. Physicians' Opinions



[7] In finding that Claimant's CFS had not rendered her

disabled, the ALJ rejected the opinions of Claimant's treating

physician, Dr. Jacobson, and an insurance carrier's consulting

examiner, Dr. Charney, and instead relied on the opinions of

the two Social Security consulting examiners, Dr. Wood and

Dr. Moseley. The ALJ failed to provide clear, convincing,

specific or legitimate reasons for rejecting the opinion of Dr.

Jacobson. The ALJ also provided no legitimate basis for

rejecting the opinion of Dr. Charney, who was hired by

Claimant's private insurance carrier to examine Claimant and

who would have no incentive to overstate her limitations.



[8] The opinions of treating doctors should be given more

weight than the opinions of doctors who do not treat the

claimant. Lester, 81 F.3d at 830. Where the treating doctor's

opinion is not contradicted by another doctor, it may be

rejected only for "clear and convincing" reasons supported by

substantial evidence in the record. Id. (internal quotation

marks omitted). Even if the treating doctor's opinion is con-

tradicted by another doctor, the ALJ may not reject this opin-

ion without providing "specific and legitimate reasons"

supported by substantial evidence in the record. Id. at 830,

quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).

This can be done by setting out a detailed and thorough sum-

mary of the facts and conflicting clinical evidence, stating his

interpretation thereof, and making findings. Magallanes, 881

F.2d at 751. The ALJ must do more than offer his conclu-

sions. He must set forth his own interpretations and explain

why they, rather than the doctors', are correct. Embrey v.

Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).



In disability benefits cases such as this, physicians may ren-

der medical, clinical opinions, or they may render opinions on

the ultimate issue of disability -- the claimant's ability to per-

form work. As we stated in Matthews v. Shalala , 10 F.3d 678

(9th Cir. 1993), " `[t]he administrative law judge is not bound

by the uncontroverted opinions of the claimant's physicians

on the ultimate issue of disability, but he cannot reject them

without presenting clear and convincing reasons for doing

so.' " Id. at 680 (quoting Montijo v. Secretary of Health &

Human Servs., 729 F.2d 599, 601 (9th Cir. 1984)). See also

Lester, 81 F.3d at 830; Embrey, 849 F.2d at 422.7 A treating

physician's opinion on disability, even if controverted, can be

rejected only with specific and legitimate reasons supported

by substantial evidence in the record. Lester , 81 F.3d at 830.

In sum, reasons for rejecting a treating doctor's credible opin-

ion on disability are comparable to those required for reject-

ing a treating doctor's medical opinion.



In the present case, the ALJ, writing in the third person,

provided the following rationale for rejecting the opinions of

Dr. Jacobson and Dr. Charney:

The consultative examinations of Drs. Wood and

Moseley, which the Administrative Law Judge found

to be objective, found the claimant capable of work.

The Administrative Law Judge does not credit the

assessments of Dr. Jacobson or Dr. Charney. These

conflict with the more objective assessments in the

consultative examinations of Drs. Moseley and

Wood and are based on the subjective complaints of

the claimant who was found not very credible.



[9] We conclude that the ALJ's rejection of the opinions of

Dr. Jacobson and Dr. Charney on the premise that they were

based on the subjective complaints of the claimant is ill-suited

to this CFS case. The ALJ's reasoning runs counter to the

CDC's published framework for evaluating and diagnosing

CFS. Chronic fatigue is defined as "self-reported persistent or

relapsing fatigue lasting six or more consecutive months."

Centers for Disease Control, The Chronic Fatigue Syn-

drome: A Comprehensive Approach to its Definition and

Study, 121 Annals of Internal Medicine 954 (1994) (emphasis

added). Although CFS is accompanied by symptoms such as

body aches, low-grade fevers, memory problems, headaches,

and extended flu-like symptoms, which Claimant manifested,

the presence of persistent fatigue is necessarily self-reported.

The final diagnosis is made "by exclusion," or ruling out

other possible illnesses. Dr. Jacobson followed Claimant's

progress for three and a half years, referred her to several spe-

cialists and conducted extensive lab testing to rule out other

possible illnesses.



The ALJ decision cited a general comment made by Dr. Ng

that because "it was the job of the treating physician to be

compassionate and supportive of the patient," the treating

physician would have no motivation to discount a patient's

complaints of CFS symptoms. This skepticism of a treating

physician's credibility flies in the face of clear circuit prece-

dent. See Lester, 81 F.3d at 833 ("The treating physician's

continuing relationship with the claimant makes him espe-

cially qualified to evaluate reports from examining doctors, to

integrate the medical information they provide, and to form an

overall conclusion as to functional capacities and limitations,

as well as to prescribe or approve the overall course of

treatment.").



[10] The ALJ decision noted that Dr. Jacobson had written

letters describing Claimant's condition in response to requests

from Claimant's long-term disability carrier and her attorney.

The Commissioner contends that Dr. Jacobson's credibility

can be questioned because he had responded to such requests.

Recent circuit opinions have discussed the relative evidentiary

value of solicited opinion letters. Our opinions reveal that the

mere fact that a medical report is provided at the request of

counsel or, more broadly, the purpose for which an opinion is

provided, is not a legitimate basis for evaluating the reliability

of the report. Evidence of the circumstances under which the

report was obtained and its consistency with other records,

reports, or findings could, however, form a legitimate basis

for evaluating the reliability of the report.



In Burkhart v. Bowen, 856 F.2d 1335 (9th Cir. 1988), we

rejected a doctor's opinion in a letter requested by counsel

where the opinion was unsupported by medical findings, per-

sonal observations, or test reports. Id. at 1339-40. We noted

in Burkhart that "given the evidence before the ALJ, [the fact

that the letter had been solicited by counsel] was not the only

reason the ALJ gave for rejecting (the doctor's) statements."

Id. at 1339. However, In Lester, where there was no sound

basis for rejecting a doctor's opinion that had been solicited

by counsel, we stated that "the purpose for which medical

reports are obtained does not provide a legitimate basis for

rejecting them." 81 F.3d at 832. In Saelee v. Chater, 94 F.3d

520 (9th Cir. 1996), citing Lester, we rejected a doctor's opin-

ion letter where "actual improprieties" had been found. Id. at

523. In Saelee, the doctor's opinion letter varied from his

treatment notes and "was worded ambiguously in an apparent

attempt to assist [the claimant] in obtaining social security

benefits." Id. at 522. In that case, the ALJ found that there

was "no objective medical basis for the opinion. " Id. at 523.



[11] We clarify here that, in the absence of other evidence

to undermine the credibility of a medical report, the purpose

for which the report was obtained does not provide a legiti-

mate basis for rejecting it. In the present case, the fact that Dr.

Jacobson drafted response letters should have no adverse

affect on his credibility or the weight of his determination. Dr.

Jacobson's letters were consistent with his findings spanning

several years. His opinion was drawn from three and a half

years of treatment and is supported by medical reports in the

record. His clinical findings were not contradicted by any of

the examining physicians.



[12] We also conclude that the record provides no basis for

the ALJ's finding that Social Security consulting examiners

Wood and Moseley were more objective than Drs. Charney or

Jacobson. Dr. Charney, who agreed with the CFS diagnosis

and found Claimant to be disabled, was hired by Claimant's

disability carrier to evaluate her eligibility for long-term bene-

fits. If any bias were to exist, it would have been expected to

be against Claimant. In addition, there is nothing in the record

to show a lack of objectivity in Dr. Jacobson, who treated

Claimant for over three years. In contrast, Drs. Wood and

Moseley examined Claimant on a one-time basis. In the

absence of Claimant's key medical records, Dr. Moseley per-

formed standard psychological tests, and from that limited

information pronounced that "she may be expected to resume

. . . an eight-hour workday routine and 40-hour work week."



IV.



Evaluation as an Excess Pain Case



Claimant contends that the ALJ also erred by characterizing

her case as an "excess pain" case, and applying Social Secur-

ity Ruling (SSR) 88-13, which provides guidance for evaluat-

ing complaints of disabling pain. SSR 88-13, Soc. Sec. Rep.

Ser. 652, 1988 WL 236011. Claimant did not allege excess

pain as the basis for her claim,8 yet the ALJ decision stated:



The claimant has alleged pain which is neither

evinced nor supported by the objective medical evi-

dence in this record. Such excessive pain complaints

will be considered in light of other indicia of credi-

ble pain beyond the objective medical evidence of

record.



Citing to SSR 88-13, the ALJ noted:



In evaluating the claimant's allegation of `disabling

pain' in this instance, the ALJ has given consider-

ation not only to the medical evidence of record, but

also to the type, dosage, effectiveness, and side

effects of any prescribed pain medication and to

other treatment for pain symptoms. The claimant's

daily activities and functional restrictions during the

relevant period have been considered as well in eval-

uating the credibility of the claimant's alleged dis-

abling pain complaints.



[13] Although SSR 88-13 applies to the evaluation of pain

"and other symptoms,"9 the ALJ considered only pain and its

effect on Claimant's activities and the potential relief by med-

ication, rather than fatigue which is the basis of Claimant's

disability claim. The ALJ's focus on pain medication and

treatment is misplaced, as the CDC has made it clear that no

definitive treatment for CFS exists.10 But even more salient is

the fact that the ALJ failed to consider the Program Opera-

tions Manual System ("POMS") guidelines on CFS issued by

the Social Security Administration in 1993. The POMS policy

states in pertinent part:



Chronic Fatigue Syndrome (CFS), previously known

as Chronic Epstein-Barr Virus Syndrome, and also

currently called Chronic Fatigue and Immune Dys-

function Syndrome, is a systemic disorder consisting

of a complex of variable signs and symptoms which

may vary in duration and severity. The etiology and

pathology of the disorder have not been established.

Although there are no generally accepted criteria for

the diagnosis of cases of CFS, an operational con-

cept is used by the medical community. There is no

specific treatment, and manifestations of the syn-

drome are treated symptomatically.



CFS is characterized by the presence of persistent

unexplained fatigue and by the chronicity of other

symptoms. The most prevalent symptoms include

episodes of low-grade fever, myalgias, headache,

painful lymph nodes, and problems with memory

and concentration. These symptoms fluctuate in fre-

quency and severity and may be seen to continue

over a period of many months. Physical examination

may be within normal limits. Individual cases must

be adjudicated on the basis of the totality of the evi-

dence, including the clinical course from the onset of

the illness, symptoms, signs, and laboratory findings.

Consideration should be given to onset duration,

severity and residual functional capacity following

the sequential evaluation process.



POMS S DI 24575.005 (1993). The ALJ's failure to acknowl-

edge the POMS guidelines may be emblematic of the reluc-

tance to acknowledge CFS that appears to underlie his

decision.



V.



Conclusion



For the reasons described herein, we hold that the ALJ's

decision that Claimant is capable of performing full-time light

work and returning to her past work as a payroll clerk is not

supported by substantial evidence. After three and a half years

of treatment and referral to a series of specialists, Claimant's

treating physician found her to be disabled. An examining

physician hired by Claimant's insurance carrier also deter-

mined that she was disabled. The ALJ's finding that Claimant

was not disabled was premised almost exclusively on reports

by two Social Security consultative examiners hired in con-

nection with Claimant's Social Security disability claim. Dr.

Wood's conclusion that Claimant was not disabled was based

exclusively on an evaluation of orthopedic factors such as

reflexes, grip strength, and ability to sit, stand and walk.

Although Dr. Wood's report noted that Claimant manifested

"extreme lethargy," the potential effects of fatigue on her

functional capacity were not considered. Dr. Moseley's exam-

ination was limited to psychological testing and her mental

capacity to work, and did not consider Claimant's fatigue

resulting from CFS. Neither doctor assessed Claimant's abil-

ity to perform work on a sustained basis in light of the fatigue

caused by CFS. We conclude, therefore, that the evidence in

the record does not support the discounting of the treating

physician's conclusion that Claimant is disabled from future

employment.



The final question for us to resolve is whether to remand

for further proceedings or for an award of benefits. The deci-

sion whether to remand a case for additional evidence or sim-

ply to award benefits is within the discretion of the court.

Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989) (citing

Varney v. Secretary of HHS, 859 F.2d 1396, 1399 (9th Cir,

1988) (Varney II)). In Varney II, we held that in cases where

the record is fully developed, a remand for further proceed-

ings is unnecessary:
  



In cases where there are no outstanding issues that

must be resolved before a proper disability determi-

nation can be made, and where it is clear from the

administrative record that the ALJ would be required

to award benefits if the claimant's excess pain testi-

mony were credited, we will not remand solely to

allow the ALJ to make specific findings regarding

that testimony. Rather, we will . . . take that testi-

mony to be established as true.



Varney II, 849 F.2d at 1401. See also Swenson, 876 F.2d at

689 (directing an award of benefits where no useful purpose

would be served by further proceedings); Rodriguez v. Bowen,

876 F.2d 759, 763 (9th Cir. 1989) (same); Winans v. Bowen,

853 F.2d 643, 647 (9th Cir. 1988) (accepting uncontradicted

testimony as true and awarding benefits where the ALJ failed

to provide clear and convincing reasons for discounting the

opinion of claimant's treating physician).



Here, the ALJ determined, at step four, that Claimant had

the residual functional capacity to perform her past work as

a payroll clerk. Had he reached step five, he would have been

required to determine whether she was able to perform other

work that exists in significant numbers in the national econ-

omy. 20 C.F.R. S 404.1561.



In general, if a claimant suffers only from exertional limita-

tions, e.g., strength limitations, the ALJ at step five may apply

the Commissioner's Medical-Vocational Guidelines[the

"grids"] to match the claimant with appropriate work. 20

C.F.R. Pt. 404, Subpt. P, App. 2, S 200.00(b). The grids are

based on strength factors only. Id.11 The ALJ may apply the

grids in lieu of taking testimony of a vocational expert only

when the grids accurately and completely describe the claim-

ant's abilities and limitations. Jones v. Heckler, 760 F.2d 993,

998 (9th Cir. 1985) (citation omitted). If the grids fail accu-

rately to describe a claimant's limitations, the ALJ may not

rely on the grids alone to show the availability of jobs for the

claimant. Id. (citations omitted). See also Bapp v. Bowen, 802

F.2d 601, 605-06 (2d Cir. 1986) (stating that application of

the grids is inappropriate where a claimant's work capacity is

significantly diminished beyond that caused by an exertional

impairment). In these cases, the ALJ must also hear the testi-

mony of a vocational expert. Desrosiers v. Secretary of

Health & Human Servs. 846 F.2d 573, 578 (9th Cir. 1988

(Pregerson, J., concurring) (citing Perminter v. Heckler, 765

F.2d 870, 872 (9th Cir. 1985)).12



We do not remand this case for further proceedings because

it is clear from the administrative record that Claimant is enti-

tled to benefits. Because limitations caused by CFS include

non-exertional limitations, the Commissioner cannot, at step

five, rely exclusively on the grids. Testimony of a vocational

expert is required.



At Claimant's hearing before the ALJ, a vocational expert

did testify about the nature of Claimant's limitations. The

expert testified that if Claimant's testimony were credited

concerning her fatigue, she would be unable to perform her

past work, due to her need to take frequent naps and an inabil-

ity to carry out repetitive tasks. See Kornock v. Harris, 648

F.2d 525, 527 (9th Cir. 1980) (citations omitted) ("The ability

to work only a few hours at day or to work only on an inter-

mittent basis is not the ability to engage in `substantial gainful

activity.' "). The vocational expert also testified that if Claim-

ant were to require just one day per week of rest, she would

be unable to perform her past work or any other work.13

Clamant's past work as a payroll clerk is classified as sed-

entary work, which is the lowest classification under the regu-

lations. 20 C.F.R. S 404.1565. In Sisco , which involved

similar facts, the Tenth Circuit determined that"[b]ecause

sedentary work is the lowest classification under the statute,

there is no need for further proceedings in this matter other

than a remand for an award of benefits." 10 F.3d at 745-46.



We conclude that a remand for further proceedings would

serve no useful purpose. We reverse the judgment of the dis-

trict court and remand with instructions to remand to the ALJ

for an award of benefits.



REVERSED AND REMANDED. the end





FOOTNOTES



1 The ALJ noted the following:



"On the Disability Report which she completed for her initial

interview she stated that her chronic fatigue syndrome caused her

to be fatigued when she performed hard physical labor or aero-

bics. Hard physical labor or aerobics would fatigue an unim-

paired individual and is not indicative of disability." After noting

that Claimant could pay bills and keep the family books, the ALJ

stated that "[s]he appears to have been doing Tupperware sales."



Sections from Claimant's Disability Report, upon which the above com-

ments are based, actually read as follows:



"Very weak, tired extremely, very forgetful, body aches, extreme

headaches, sore throat, so tired many times can't get out of bed

for long hours/days. Become fatigued if I do hard physical work

or aerobics." The same report notes that Claimant's activities

include "rest, try to exercise at least 20 minutes a day." The

report also notes that her treating physician, who diagnosed CFS,

had recommended 20 minutes of exercise daily. Claimant's

household chores included: "cook, three times a week (try), clean

10 minutes daily if I feel up to it. Shop. Have most food deliv-

ered. Odd jobs 20 minutes one time a week." With regard to Tup-

perware sales, Claimant noted that she "Tr(ies) to sell

Tupperware." She indicated that she gives the Tupperware books

to her sisters who bring the books to work and take orders. Her

daughter writes up the orders, and her husband helps.

2 The ALJ provides the following description of the sister-in-law's activity report:



"Ms. Eyre stated that the claimant paid the bills and did the

household accounts. For recreation she enjoys going to Monterey, 

or out to the movies, or out to dinner with friends. She reads a

lot and goes to Bible study. She gets along with everybody."



The ALJ focused primarily on one question in the activities

questionnaire which asked: "What type of recreational activities

or hobbies does the applicant enjoy and spend time on?" Ms.

Eyre responded that Claimant goes "to movies and down to Mon-

terey for a break, or out with friends for dinner. " However, a

broader sample from Ms. Eyre's activities report provides the fol-

lowing description of Claimant's daily life:



"Some days she stays home in bed all day . . . . Some she can

go run errands but she tires out easily. . . some days she sleeps

a lot . . . . She has gained a lot of weight and isn't as critical about

the clothes she wears. Sometimes she doesn't care about how she

looks. She was never this way before her illness . .. . [Sometimes

she cooks meals], her daughter, stepson and husband all take

turns . . . . Sue shops occasionally. She never goes alone . . . . She

misses (Bible study) a lot because she has no energy even to just

sit and listen . . . . She gets tired a lot. Real lethargic. She always

comes to our house and ends up falling asleep . . . . [S]he finishes

things but sometimes it takes a few days because she gets tired

so easily."

3 Chronic fatigue syndrome is a disease that did not become widely

known in the medical community until 1988 when the first diagnostic arti-

cle was published. It was also in 1988 that the CDC accepted chronic

fatigue syndrome as a disease. Reed v. Secretary of Health & Human

Services, 804 F. Supp. 914, 916 (E.D. Mich. 1992).

4 See also Sabo v. Chater, 955 F. Supp. 1456, 1463 (M.D. Fla. 1996)

(ruling that a reversal was required where the ALJ failed to apply stan-dards

appropriate to CFS); Fragale v. Chater, 916 F. Supp. 249, 254

(W.D.N.Y. 1996)("CFS . . . may produce symptoms which `significantly

impair [a] claimant's ability to perform even sedentary work. . . .' ")

(quoting Rose v. Shalala, 34 F.3d 13, 17 (1st Cir. 1994)); Williams v.

Shalala, 1995 WL 328487, at *6 (W.D.N.Y. May 19, 1995) (holding that

a remand was required where the ALJ's decision "reflects an analysis

inconsistent with the appropriate framework for assessing disability claims

premised on CFS."); Irwin v. Shalala, 840 F. Supp. 751, 770 (D. Or. 1993)

(holding that a reversal was required where the ALJ discredited testimony

of CFS claimant and doctors); Powell v. Chater , 959 F. Supp. 1238, 1245

(C.D. Cal. 1997) (ruling that a remand was required where the ALJ's per-

ceived inconsistencies in the record were "minimal at best.").

5 Dr. Ng commented, "[a]fter reviewing the medical records of Mrs.

Reddick and performing the history and physical on February 4, 1992, I

have to agree with Dr. Charney that she does meet the CDC criteria for

the diagnosis of chronic fatigue syndrome." He also stated, "[i]ncidentally

I think she should also be seen by a psychiatrist to see whether there is any

underlying psychological disorder. However, this would not change the

fact that she still is disabled, even if her symptomology is secondary to a

psychiatric disorder."

6 Dorland's Medical Dictionary outlines some of the symptoms com-

monly associated with CFS. The dictionary defines chronic fatigue syndrome

as a "persistent debilitating fatigue of recent onset, with reduction

of physical activity to less than half of usual, accompanied by some com-

bination of muscle weakness, sore throat, mild fever, tender lymph nodes,

headaches, and depression, with the symptoms not attributable to any

other known causes." Dorland's Illustrated Medical Dictionary 1627

(28th ed. 1994).

7 In Embrey we rejected the ALJ's conclusory statements rejecting the

treating doctor's opinion on disability: "Here, the ALJ does not give suffi-

ciently specific reasons for rejecting the conclusion of [Embrey's treating

orthopedist] that Embrey is `permanently disabled . . . .' Nor does the ALJ

explain why he disagrees with Dr. Baker's conclusion that Embrey is per-

manently unemployable . . . . Instead, he merely states that the objective

factors point toward an adverse conclusion and makes no effort to relate

any of these objective factors to any of the specific medical opinions and

findings he rejects. This approach is inadequate. " Embrey, 849 F.2d at

422.

8 In her April 5, 1993 application for disability benefits, Claimant

referred to her "disabling condition." In the accompanying disability

report filed on April 5, 1993 she lists her disability as "Chronic Immune

Dysfunction" or "Chronic Fatigue Syndrome. " The SSA's denial notice of

her initial application dated September 27, 1993 notes that "you said that

you were unable to work because of chronic fatigue syndrome." In Claim-

ant's request for a hearing by an Administrative Law Judge dated March

3, 1994, she stated, "Due to chronic fatigue syndrome, I am totally

disabled." Commissioner writes in its opening brief that "Claimant filed

her application for disability insurance benefits under Title II of the Act

on April 5, 1993, alleging that she had been unable to work since October

4, 1989 due to chronic fatigue syndrome."

9 SSR 88-13, 1988 WL 236011; 20 C.F.R. SS 404.1598, 404.1528-29,

416.908, 416.928-29.

10 Centers for Disease Control, "The Chronic Fatigue Syndrome: A

Comprehensive Approach to its Definition and Study, " 121 Annals of

Internal Medicine 953 (1994). See also,"The Chronic Fatigue Syndrome,"

90 American Journal of Medicine 730, 736 (June 1991).

11 The Medical-Vocational Guidelines indicate that they are based on

strength factors and may not be appropriate in cases involving non-

exertional limitations:



Since the rules are predicated on an individual's having an

impairment which manifests itself by limitations in meeting the

strength requirements of jobs, they may not be fully applicable

where the nature of an individual's impairment does not result in

such limitations . . . .



20 C.F.R. Pt. 404, Subpt. P, App 2 S 200.00(e). See also 20 C.F.R. S 404.-

1569(a) (defining non-exertional limitations as limitations that do not

directly affect a claimant's [muscular] strength).

12 In Periminter, we held that pain is a non-exertional limitation. We

also determined that, absent other reliable evidence that the claimant could

perform specific jobs, a vocational expert was necessary. 765 F.2d at 872.

13 The relevant section of the transcript reads as follows:



ALJ:If I were to credit the claimant's testi-

mony concerning her fatigue and pain,

would the claimant be able to perform

her past relevant work?



Vocational Expert:No, she would not.

ALJ:Why is that?

Vocational Expert:Because of the need to take frequent naps

during the day. Some days unable to get

out of bed to get to work. Performing

repetitive tasks, such as using a com-

puter, would probably increase the

fatigue that is being described.



ALJ:Okay [Claimant's attorney], any ques-

tions of the Vocational Expert?



Claimant's Attorney:Just one. If she was limited to her bed

even one day a week, only one day a

week, would your answer still be the

same about her inability to perform her

past relevant work or any other work?

Vocational Expert:Yes.



Claimant's Attorney:Okay, I have nothing further.