Key v. HecklerKey v. Heckler
- Reporters:
- ,
- Before:
- Sneed, Anderson, Ferguson
SNEED, Circuit Judge:
Key appeals from the district court‘s judgment affirming the Secretary‘s determination that he is not disabled. Our jurisdiction over the appeal rests on
I.
SUMMARY OF APPLICABLE LAW
Sometimes it is useful in a disability case to restate the legal matrix within which such cases arise. This is such a case. To qualify for disability benefits, a claimant must prove that he is unable to “engage in
II.
FACTS AND PROCEEDINGS BELOW
Key, a fifty-five year old man, has received electrical engineering training and in previous years has worked as a draftsman, a gardener, and a warehouseman. In 1959, Key sustained a severe head injury but subsequently returned to work and engaged in substantial gainful activity until 1981. On October 14, 1981, he applied for disability benefits. Key claims that his head injury, a heart condition, a balance problem, and difficulty in walking has rendered him disabled.
At the disability hearing, Key testified that he can walk a mile, can sit for an hour, and can stand for two hours. Key also testified that he can lift 150 pounds, that he drives a car, that he performs household chores, and that he attends a prayer meeting and Bible study at his church that lasts for two hours. Key‘s wife corroborated the claimant‘s testimony.
Based on the medical evidence submitted at the hearing and Key‘s own testimony, the ALJ found that, although Key suffers from post-right hemisphere trauma with mild-left hemiparesis, he retains the ability to perform basic work-related activities.1 The ALJ therefore determined that Key is not disabled. The Appeals Council affirmed.
Key filed a complaint for review of the Secretary‘s decision in district court. The district court affirmed the Secretary‘s decision. Key filed a timely appeal with this court.
III.
DISCUSSION
Key advances four arguments on appeal. First, he alleges that the ALJ‘s categorization of his impairments as “non-severe” and therefore not disabling lacks substantial evidence. Second, Key argues that the
A. Substantial Evidence of a Non-Severe Disability
Our scope of review of disability determinations is limited: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....”
Here, the ALJ heard conflicting reports from medical experts. Dr. Sung, Dr. Jesson, and Dr. Peterson concluded that Key‘s physical ailments prevented him from engaging in substantial gainful activity. The clinical findings of Dr. Mehta and Dr. Hunter, however, contradict their reports. Dr. Mehta confirmed Dr. Sung‘s and Dr. Peterson‘s diagnoses of Meniere‘s disease, but noted that the condition had been treated with Antivert. Dr. Mehta, although offering no opinion on the appellant‘s employability, indicated that Key seemed well-oriented and under no apparent distress. Dr. Hunter, moreover, concluded that the physical symptoms stemming from the 1959 accident did not render Key totally disabled.
The ALJ, after considering all the evidence regarding his physical condition, concluded that Key did not have a severe disability and could perform basic work-related activities. The medical evidence presented perhaps would permit a reasonable mind to make a finding of disability. It also would permit a finding of no disability. When there is evidence sufficient to support either outcome, we must affirm the decision actually made. See Rhinehart, 438 F.2d at 921.
Key argues, however, that none of the reports of the medical experts conflict with regard to the diagnosis of Meniere‘s disease. Therefore, Key contends, he suffers from an impairment listed in Appendix 1, see
The mere diagnosis of an impairment listed in Appendix 1 is not sufficient to sustain a finding of disability. The Listing of Impairments does describe conditions that are generally considered severe enough to prevent a person from doing any gainful activity. But the ALJ “will not consider your impairment to be one listed in Appendix 1 solely because it has the
Dr. Sung, Dr. Peterson, and Dr. Mehta all diagnosed Meniere‘s disease. For the diagnosis of Meniere‘s disease to qualify as a listed impairment, though a number of other findings are necessary. The findings must include disturbances of balance characterized by “an hallucination of motion or loss of position sense and a sensation of dizziness.... Nausea, vomiting, ataxia and incapacitation are frequently observed.”
Likewise, the diagnosis of mild left hemiparesis does not establish the existence of persistent disorganization of motor function, see
Key also relies on the report submitted by Dr. Dorr to the Appeals Council after the ALJ‘s decision. Dr. Dorr, a psychiatrist, diagnosed dementia, a condition which satisfies the criteria of a listed mental impairment in the Secretary‘s regulations. See
Key argues that the ALJ should have excluded Dr. Hunter‘s medical report on the ground that it was biased. We disagree. Nothing in the record indicates that Dr. Hunter demonstrated any bias toward Key during the medical examinations or during the preparation of reports.
Therefore, we conclude that the ALJ‘s finding that Key did not suffer from a severe disability is supported by substantial evidence.
B. Failure to Fully and Fairly Develop the Record
Appellant urges us to remand the case for a further hearing because the ALJ did not fully and fairly develop the record. Key proceeded at the administrative hearing without the assistance of counsel and now claims that the ALJ did not conduct the hearing in a manner designed to elicit
Administrative procedures “should be understandable to the layman claimant . . . and not strict in tone and operation.” Richardson v. Perales, 402 U.S. 389, 400, 401, 91 S.Ct. 1420, 1426, 1427, 28 L.Ed.2d 842 (1971). When a claimant appears at a hearing without counsel, the ALJ must “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts. He must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Cox v. Califano, 587 F.2d 988, 991 (9th Cir.1978). See also Vidal v. Harris, 637 F.2d 710, 713 (9th Cir.1981). Lack of counsel does not affect the validity of the hearing unless the plaintiff can demonstrate prejudice or unfairness in the administrative proceedings. Vidal, 637 F.2d at 713.
Key marshals a number of charges directed at the ALJ. He asserts that the ALJ interrupted his answers, did not explore his heart condition, failed to inquire about the effects of Meniere‘s disease, and neglected to develop important vocational information to determine whether he worked in a sheltered or competitive capacity in California. The record contradicts each of these contentions. The ALJ did not “thwart meaningful responses,” but merely sought to clarify unclear statements by Key. The ALJ questioned Key about his alleged heart condition and his answers are part of the record. The ALJ also inquired about the frequency of Key‘s dizzy spells resulting from Meniere‘s disease. Finally, whether Key worked in a sheltered or competitive environment and can perform his past work is irrelevant in determining whether he now can perform basic work-related activities. See
The ALJ, then, did not fail to fully and fairly develop the record.
C. Consideration of New Evidence
Key urges us to remand the case to the Secretary for consideration of new evidence. This court has jurisdiction to remand matters on appeal for consideration of newly discovered evidence. See Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981);
Key‘s new evidence is a medical report prepared by Dr. Jacobs, dated April 23, 1984, that tends to show that he suffered from severe ataxia, lack of balance, and mild double vision. Key, however, offers no reason why he had not solicited this information from Dr. Jacobs earlier. Nor does Key tell us why he did not ask the district court to consider the evidence. The obvious explanation is that when Key failed to succeed on his disability claim in the agency and district court hearings, he sought out a new expert witness who might better support his position. The “good cause” requirement would “be meaningless if such circumstances were sufficient to allow introduction of new evidence.” Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 1473 (9th Cir.1984).
Since Key failed to meet the “good cause” requirement, we decline to remand the case for consideration of new evidence.
D. The Validity of the Severity Regulation
Finally, Key argues that the Secretary‘s “severity” regulation,
A lack of symmetry certainly appears to exist. Key correctly points out that the regulation shifts the focus from his ability to do past work to his ability to perform “basic work activities.” The regulation also precludes the Secretary from considering a claimant‘s age, education, and work experience when the impairment is not severe. Instead, the regulation focuses entirely on the severity of the impairment.
Our criticism is checked, however, by the fact that Congress has entrusted the Secretary with the primary responsibility for interpreting the Social Security Act. We are not free to set aside a regulation promulgated by the Secretary simply because we might have interpreted the statute differently. See Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). We should declare a regulation invalid only if the Secretary exceeded his or her statutory authority or if the regulation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See id. at 426, 97 S.Ct. at 2406.
In this case, however, we need not reach the issue of the validity of the severity regulation. The ALJ determined that Key had failed to establish the presence of any significant restrictions on his ability to perform basic work activities and thus had no severe impairment. See
Accordingly, we affirm the district court‘s judgment affirming the Secretary‘s determination that Key is not disabled.
AFFIRMED.
FERGUSON, Circuit Judge, dissenting:
The majority finds that substantial evidence supports the decision of the administrative law judge (ALJ). I dissent.
Because I find the ALJ failed to consider plaintiff‘s impairments in accordance with the proper provisions of the Code of Federal Regulations, I would reverse the denial of disability insurance benefits and remand for correct determination of plaintiff‘s disability claim.
A person is “disabled” within the meaning of the Social Security Act and eligible for benefits, providing income criteria are met, if he “is unable to engage in any
The applicable regulation promulgated by the Secretary of Health & Human Services (Secretary),
[T]he Social Security Regulations provide a uniform sequence of considerations which control the adjudication of disability claims. These regulations require that the following be considered in sequence: (1) whether claimant is actually engaging in substantial activity; and, if not, (2) whether his impairments are of a level of severity which meets or is equal to an impairment listed in Appendix 1 of Subpart P of Regulations No. 4; or, if they do not but are severe, (3) whether they prevent him from doing his usual or customary work; and, if so, (4) whether claimant can perform any other substantial gainful activity which exists in the national economy, considering his age, education and work experience.
(Trial Record at 27).
Despite the ALJ‘s clear understanding of the proper procedure by which disability determinations are made, he failed to consider whether Key‘s impairments met or equaled any impairments listed in Appendix 1 of Subpart P of Regulations No. 4.
Appendix 1 sets forth impairments which the Secretary considers to be “severe” and if the claimant‘s impairment is either listed or equal to a listed impairment, “we will find you disabled without considering your age, education, and work experience.”
Section 404.1525(a) of Title 20 of the Code of Federal Regulations sets forth the purpose of the Listing of Impairments as follows:
The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity. Most of the listed impairments are permanent or expected to result in death, or a specific statement of duration is made. For all others, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months.
Each section of the Listing of Impairments contains a general introduction giving definitions of key concepts and certain required medical findings to support impairments used in that section. In addition, the required level of severity is shown by one or more sets of medical findings under “Category of Impairments.”
One of the listed impairments is Meniere‘s disease. Appendix 1 discusses special sense and speech impairments in sections 2.00 through 2.09. Section 2.00(B)(2) states:
Vertigo associated with disturbances of labyrinthine-vestibular function, including Meniere‘s disease. These disturbances of balance are characterized by an hallucination of motion or loss of position sense and a sensation of dizziness which may be constant or may occur in paroxysmal attacks. Nausea, vomiting, ataxia and incapacitation are frequently observed, particularly during the acute attack....
Meniere‘s disease is characterized by paroxysmal attacks of vertigo, tinnitus, and fluctuating hearing loss. Remissions are unpredictable and irregular, but may be long-lasting; hence, the severity of impairment is best determined after prolonged observation and serial reexaminations.
The ALJ does not dispute the diagnosis of Key as having Meniere‘s disease and in fact indicated it formed a part of the evidence
Likewise, the diagnosis of left hemiparesis noted by the ALJ and confirmed by Drs. Mehta, Peterson and Sung was not considered in conformity with Appendix 1. The left hemiparesis occurred as a result of an automobile accident in which Key suffered major brain damage, and such impairment is also listed in Appendix 1, section 11.00(C), as follows:
Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which may be due to cerebral, cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction) which occur singly or in various combinations, frequently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms.
Further, section 11.04 provides:
Central nervous system vascular accident. With one of the following more than 3 months post-vascular accident:
A. Sensory or motor aphasia resulting in ineffective speech or communication; or
B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station.
Dr. Mehta‘s report of December 3, 1981 indicates Key‘s speech is mildly dysarthric, he walks with a broad based gait, and has diminished arm swing on the left with a slightly left accent to the gait. These medical findings support the required level of severity as required under section 11.04 and should have been considered by the ALJ.
The ALJ should also consider the reports of Dr. Dorr (a psychiatrist who examined Key in 1982 but whose report was not submitted to the appeals council until after the ALJ‘s decision) and Dr. Jacobs (whose report dated April 23, 1984 was directed to Dr. Donald Klotz and was not received by Key‘s counsel until May 14, 1984). See Burton v. Heckler, 724 F.2d 1415, 1418 (9th Cir.1984) (fact that the evidence did not exist at the time of the ALJ‘s decision establishes good cause for a claimant‘s failure to introduce it before the ALJ). The materiality of these two reports is clear. Dr. Dorr found Key suffering from dementia, post traumatic. Appendix 1 discusses mental disorders in sections 12.00 through 12.05 and specifically provides in section 12.02 as follows:
Chronic brain syndromes (organic brain syndromes. With both A and B:
A. Demonstrated deterioration in intellectual functioning, manifested by persistance of one or more of the following clinical signs:
1. Marked memory defect for recent events; or
2. Impoverished, slowed, perserverative thinking, with confusion or disorientation; or
3. labile, shallow or coarse affect;
B. Resulting persistance of marked restriction of daily activities and construction of interests and deterioration in personal habits and seriously impaired ability to relate to other people.
Dr. Dorr specifically sets forth the clinical evidence upon which he relied in forming his opinion:
The report of Dr. Jacobs sets forth medical findings as a result of his neurologic examination of Key which the ALJ should consider in determining whether Key‘s impairments meet the required level of severity as provided in Appendix 1.
It is clear from the record in this case that Key‘s impairments (Meniere‘s disease, left hemiparesis and dementia) are all listed as “severe” impairments in Appendix 1 of Subpart P of Regulations No. 4, and the ALJ should have reviewed the evidence to determine if the medical findings met or equaled the required showing contained in Appendix 1 for these listed impairments.
Because the ALJ failed to consider whether the medical evidence supported the required level of severity in conformity with the guidelines of Appendix 1, this case should be remanded so the proper determination can be made in conjunction with Title 20 of the Code of Federal Regulations, Part 404, Subpart P, Appendix 1.
Notes
(a) Non-Severe Impairment. An impairment is not severe if it does not significantly limit your physical or mental abilities to do basic work activities.
(b) Basic Work Activities. When we talk about basic work activities we mean the abilities and aptitudes necessary to do most jobs. Examples of these include—
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling....