Hеrbert RAMIREZ, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
No. 92-55163
United States Court of Appeals, Ninth Circuit
Decided Nov. 9, 1993.
8 F.3d 1449
Argued and Submitted July 15, 1993.
REVERSED and REMANDED.
RYMER, Circuit Judge, concurring:
I concur because the reasoning of Turner v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 294, 74 L.Ed.2d 278 (1982), which holds that a vessel has the duty to protect longshoremen against concealed conditions created by a foreign stevedore, which the vessel could have corrected or warned of, leads inexorably to the conclusion that the vessel has a duty of care with respect to cargo conditions whether the dangers are concealed or not. I write separately to note that until now, the turn over duty has focused on the character of the ship and its equipment, not on the condition of the cargo. See, e.g., Ludwig v. Pan Ocean Shipping Co., 941 F.2d 849 (9th Cir.1991) (duty to have ship and its equipment safe for stevedore operations); Taylor v. Moram Agencies, 739 F.2d 1384 (9th Cir.1984) (vessel not liable for hazards which develop as a result of cargo operations). By the same token, the duty to warn has existed only with regard to hidden or concealed dangers. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981); Turner, 651 F.2d at 1304. By imposing a turn over duty of care to protect stevedores from poor cargo conditions, we are exposing the shipowner to liability equally for lack of reasonable care as to the vessel or the vessel‘s equipment, and as to the condition of the cargo (at least when stowed by a foreign stevedore). It is unclear that this squares with the restrictive rules of liability of shipowners to stevedores envisioned by the 1972 Amendments to the Longshoremen‘s and Harbor Workers’ Compensation Act,
Robert Hoad, Henry N. Ernеcoff, Matty M. Sandoval, Robert Hoad, A Professional Law Corporation, San Diego, CA, for plaintiff-appellant Herbert Ramirez.
Dennis J. Mulshine, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee Donna Shalala.*
Before: WOOD, Jr.,** REINHARDT, and RYMER, Circuit Judges.
Herbert Ramirez appeals the denial of Disability Insurance and Supplemental Security Income benefits. An Administrative Law Judge (“ALJ“) found him not disabled. He requested that the Appeals Council review his case, and submitted to that body, inter alia, an additional report from his treating psychologist. The Appeals Council declined to review the ALJ‘s decision, making it final. Ramirez appealed to the district court, which granted summary judgment in favor of the Seсretary.1 We now reverse and remand for the payment of benefits.2
I.
We review the judgment of the district court de novo. Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). In so doing, we consider the rulings of both the ALJ and the Appeals Council. Although the ALJ‘s decision became the Secretary‘s final ruling when the Appeals Council declined to review it, the government does
Claims of disability are evaluated according to a five-step procedure.
II.
A.
The dispute in this case concerns listed diagnosis 12.04 (affective disorder) and 12.08 (personality disorder). The required level of severity for diagnosis 12.04 is met when the claimant‘s impairment meets at least one paragraph A criterion and at least two paragraph B criteria.
Ramirez‘s treating physician, Dr. Richard E. Townsend, diagnosed Ramirez as having dysthymia, an affective disorder. As stated above, affective disorders fаll within diagnosis 12.04.3 Ramirez contends that Dr. Townsend‘s findings, and his own description of his symptoms, meet all the requirements for diagnosis 12.04—that is, that they are medically equivalent to that diagnosis. The ALJ did not consider Dr. Townsend‘s diagnosis of affective disorder. He did not dispute Dr. Townsend‘s medical findings, nor Ramirez‘s own account of his symptoms, but he ruled that Ramirez suffered from a personality disorder, and classified Ramirez‘s impairment
B.
We consider, first, whether the failure to consider Ramirez for benefits under diagnosis 12.04 constituted error.
The classification of mental disorders is not an exact science. As the American Psychiatric Association points out, “There is no assumption that each mental disorder is a discrete entity with sharp boundaries (discontinuity) between it and other mental disorders, or between it and no mental disorder.” Am. Psychiatric Ass‘n, Diagnostic and Statistical Manual of Mental Disorders xxii (3d. ed. rev. 1987). A dysthymic disorder—Ramirez‘s condition—is often associated with a personality disorder (diagnosis 12.08), and personality disorders are often seen during episodes of dysthymia. Id. at 232, 335. The fact that Ramirez suffered from a dysthymic disorder does not mean that he did not also suffer from a personality disorder. The two arе not mutually exclusive.5 However, neither the ALJ nor the Appeals Council provided any explanation for failing to consider whether Ramirez was eligible for benefits under diagnosis 12.04.
In considering only diagnosis 12.08, the ALJ seemed implicitly to rely on the opinion of Dr. Sidney Bolter, a government physician. Dr. Bolter stated that Ramirez did not suffer from an affective disorder (the tyрe of disorder considered under diagnosis 12.04) but rather from a personality disorder, covered under diagnosis 12.08. However, neither the ALJ nor Dr. Bolter gave any reason for disagreeing with Dr. Townsend‘s opinion that Ramirez suffered from an affective disorder. Dr. Bolter did not dispute either Ramirez‘s own account of his symptoms or Dr. Townsend‘s findings. Moreover, he did not ever examine Ramirez; rather, he reviewed the record and saw Ramirez for the first time at the hearing.6
In disability cases, greater weight is afforded to the opinion of a treating physician than to that of non-treating physician, because the treating physician “‘is employed to cure and has a greater opportunity to know and observe the patient as an individual.‘” Bates v. Sullivan, 894 F.2d at 1063 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987)). When another doctor‘s opinion contradicts the opinion of a treating physician, the Secretary can disregard the latter only by setting forth “specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Baxter v. Sullivan, 923 F.2d at 1396 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). Neither the ALJ nor the Appeals Council gave any reason—let alone a “specific, lеgitimate” reason based on substantial evidence—for disregarding Dr. Townsend‘s
We conclude that both the ALJ and the Appeals Council improperly disregarded Dr. Townsend‘s opinion that Ramirez suffered from an affective disorder, classified under diagnosis 12.04.8 We now examine the full record, including the suрplemental material submitted to the Appeal Council, to determine what it reveals with respect to Ramirez‘s eligibility for benefits under diagnosis 12.04.
C.
Ramirez contends that his condition meets the requirements of diagnosis 12.04. Thus, he contends that the inquiry should have been concluded at the third step of the five-step process and that he should have been awarded thе benefits he seeks. As noted above, there is no dispute that Ramirez meets the paragraph B criteria required by diagnosis 12.04.9 That diagnosis also sets forth three paragraph A criteria, one of which the claimant must meet. The crux of the dispute in this case is whether Ramirez does so.
Ramirez contends that he meets the following paragraph A criteriоn:
Medically documented persistence, either continuous or intermittent, of [d]epressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities;
...
e. Decreased energy;
f. Feelings of guilt or worthlessness;
g. Difficulty concentrating or thinking[.]
Because Dr. Townsend found thаt Ramirez suffers from dysthymia, an affective disorder, and because the record establishes that Ramirez meets both the paragraph A and paragraph B criteria for diagnosis 12.04, which covers that disorder, we conclude that Ramirez‘s condition meets the requirements of diagnosis 12.04. Accordingly, we find that the Appeals Council erred in failing to find that Ramirez met thе requirements for diagnosis 12.04.
III.
It may be true that Ramirez suffers from both an affective disorder (diagnosis 12.04) and a personality disorder (diagnosis 12.08). It may also be true that his personality disor
The Appeals Council could have remanded for a further hearing so that the ALJ could consider Ramirez‘s eligibility for benefits under diagnosis 12.04, or so that he could take further evidence. It chose not to do so. Instead, it treated the record as complete. We agree. Ordinarily, we may either “‘remand [a] case for additional evidencе or simply ... award benefits.‘” Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir.1988) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985)). Where the record is complete, however, we award benefits to the claimant. Id. (citing Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir.1986)). Here, the record establishes that Ramirez exhibited the symptoms of a person suffering the required signs of diagnosis 12.04 in the required degree of duration and severity. There is no substantial evidence to the contrary. The Appeals Council thereforе erred in failing to overturn the ALJ‘s decision and award benefits to Ramirez. Accordingly, we reverse the Secretary‘s decision.
REVERSED AND REMANDED FOR THE PAYMENT OF BENEFITS.
RYMER, Circuit Judge, dissenting:
I would affirm because there is no evidence that Ramirez‘s “dysthymic disorder” precluded him from returning to suitable work or was so severe as to be disabling. See Perez Torres v. Secretary of HHS, 890 F.2d 1251, 1254-55 (1st Cir.1989) (“a dysthymic disorder is a chronic mood disturbance involving either a depressed stаte or a loss of interest or pleasure in almost all usual activities and pastimes.... It is a less severe condition than a major depressive episode and occupational impairment is usually mild to moderate because of the chronic, rather than severe nature of the syndrome.“); Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir.1982) (“[t]he existence of emotional disorder ... is not per se disabling.... In addition, there must be proof of the impairment‘s disabling severity.” (quotation omitted).) Even if Dr. Townsend‘s testimony had been fully credited, Ramirez has not shown that he would have established that he was “disabled” despite any functional limitations caused by his emotional disorder. Therefore I respectfully dissent.