Yuckert v. Heckler

• Decision Date: 03 January 1986
• Docket Number: No. 84-4432,84-4432
• Citation: 774 F.2d 1365
• Parties: , 11 Soc.Sec.Rep.Ser. 163, Unempl.Ins.Rep. CCH 16,418 Janet J. YUCKERT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant- Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

774 F.2d 1365

54 USLW 2256, 11 Soc.Sec.Rep.Ser. 163,

Unempl.Ins.Rep. CCH 16,418

Janet J. YUCKERT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant- Appellee.

No. 84-4432.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 3, 1985.

Decided Oct. 24, 1985.

As Amended Jan. 3, 1986.

James A. Douglas, Gibbs, Douglas, Theiler & Drachler, Seattle, Wash., for plaintiff-appellant.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Gene S. Anderson, U.S. Atty., Richard E. Cohen, Asst. U.S. Atty., Patrick E. McBride, Regional Atty., Richard H. Wetmore, Asst. Regional Atty., Dept. of Health & Human Services, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, PREGERSON, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge.

The Secretary of Health and Human Services denied Janet Yuckert's application for social security disability benefits on the ground that she did not suffer from a "severe impairment" within the meaning of 20 C.F.R. Secs. 404.1520(c) and 404.1521 (1985). The district court affirmed. Yuckert now challenges the validity of the severity regulation, 20 C.F.R. Sec. 404.1520(c) (1985), as inconsistent with the Social Security Act. She argues that the regulation improperly permits the Secretary to find a claimant not disabled based solely on medical evidence, see id., whereas the statute requires the Secretary additionally to consider the claimant's age, education, work experience, and ability to do her past work, see 42 U.S.C. Sec. 423(d)(2)(A). Yuckert alternatively contends that substantial evidence does not support the Secretary's decision and that the Administrative Law Judge (ALJ) committed legal error by failing to give proper weight to the opinions of her treating physicians or to give proper reasons for rejecting their opinions and the testimony of her vocational rehabilitation counselor. We find the Secretary's "severity" regulation invalid and reverse.

I Background and Facts

In October 1980, Yuckert applied for disability benefits under Title II of the Social Security Act. She alleged that she had been disabled since October 1979 as a result of dizziness, headaches, vision and equilibrium problems, and flat feet. After the denial of her application both initially and upon reconsideration, Yuckert requested a hearing before an ALJ.

At the time of her hearing, Yuckert was forty-five years old. She had a high school education, had completed some college classes, and was enrolled part-time in a computer programming training program. She worked as a travel agent from 1963 to 1977, and sporadically as a licensed real estate broker during 1978 and 1979, when she allegedly began suffering attacks of a debilitating illness.

Yuckert testified that she has been unable to work as a result of her illness because she has problems focusing and refocusing her eyes, can see only one word at a time, is congested, lacks stamina, has headaches, and must rest her eyes every thirty minutes while reading. Her dizziness and equilibrium problems limit her ability to walk or drive: she walks cautiously, staying close to walls or counters, and although she drives 80 miles a week, she uses back and side roads and drives very slowly. She requires an excessive amount of sleep, usually taking two or more naps a day. She attends school, but only on a part-time basis.

Both of Yuckert's treating physicians concluded that she was disabled. Dr. Fretwell, an allergist, diagnosed Yuckert's problems as a syndrome of middle ear congestion. Dr. Wong, an otologist, diagnosed spontaneous nystagmus going to the left side and bilateral labyrinthine dysfunction. Both doctors noted that Yuckert's problems were not controlled by medication.

Finally, a vocational rehabilitation counselor, Ms. Mott, testified that Yuckert was incapable of returning to her past work and that she probably could not perform any other job until her condition improved. Mott had administered a battery of vocational tests to Yuckert; she found that the results confirmed some of Yuckert's symptoms, particularly her vision problems.

The ALJ evaluated the foregoing evidence and Yuckert's claim under the Secretary's disability evaluation regulation, 20 C.F.R. Sec. 404.1520 (1985). That regulation provides a five-step sequential procedure for determining disability, and allows the Secretary to find a claimant "not disabled" without reference to the vocational factors enumerated in the statute, 42 U.S.C. Sec. 423(d)(2)(A). Here, the ALJ found Yuckert not disabled at step two of the procedure when he found that she did not suffer from a severe impairment that significantly limited her ability to perform basic work-related activities. See 20 C.F.R. Sec. 404.1520(c) (1985). The ALJ thus did not consider whether Yuckert could do her past work or whether she could do any other work, considering her age, education, and work experience.

The Appeals Council denied Yuckert's request for review, and the ALJ's decision became the final decision of the Secretary. Yuckert sought review in the district court. The magistrate assigned to her case determined that substantial evidence supported the determination that she did not have a severe impairment. The district court adopted the magistrate's opinion and affirmed the Secretary's decision. Yuckert timely appeals.

II Discussion

Yuckert contends that the "severity" regulation, 20 C.F.R. Sec. 404.1520(c) (1985), is invalid because it conflicts with the language of the Social Security Act, 42 U.S.C. Sec. 423(d)(2)(A), by permitting the Secretary to find a claimant not disabled based solely on medical evidence, without regard to vocational factors, such as the claimant's age, education, work experience, and ability to perform past work. Yuckert raises this issue for the first time on appeal. As a preliminary matter, we consider the Secretary's contention that Yuckert's failure to challenge the regulation below precludes her from raising the issue here.

Generally, we will not consider an argument on appeal if the parties failed to raise it below. Abex Corp. v. Ski's Enterprises, Inc., 748 F.2d 513, 516 (9th Cir.1984); Rainbow Pioneer No. 44-18-04A v. Hawaii-Nevada Investment Corp., 711 F.2d 902, 905 (9th Cir.1983). Nevertheless, we recognize an exception to this rule where the issue on appeal is purely one of law that is both central to the case and important to the public. Abex Corp., 748 F.2d at 516; In re Sells, 719 F.2d 985, 990 (9th Cir.1983). Here, our consideration of the issue will not require the parties to develop new facts; moreover, the validity of the severity regulation presents a significant question of general impact. See In re Howell, 731 F.2d 624, 627 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 330, 83 L.Ed.2d 266 (1984). Thus, we exercise our discretion to consider the issue in spite of Yuckert's failure to raise it in the district court. See Chico v. Schweiker, 710 F.2d 947, 952 (2d Cir.1983).

A. The Validity of the Regulation

The Social Security Act provides that certain individuals who are "under a disability" shall receive disability benefits. 42 U.S.C. Sec. 423(a)(1)(D). ¹ The Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. Sec. 423(d)(1)(A). The Act further provides that a claimant will be found disabled only if his impairment(s) "are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. Sec. 423(d)(2)(A). Thus, on its face, the statute contemplates that the Secretary will consider both medical and vocational factors in awarding benefits. See Delgado v. Heckler, 722 F.2d 570, 572-73 (9th Cir.1983) (discussing 42 U.S.C. Secs. 1382c(a)(3)(A) and (B), which contain definitions of disability identical to 42 U.S.C. Secs. 423(d)(1)(A) and (d)(2)(A)).

Nevertheless, in 1978, the Secretary promulgated a regulation pursuant to her rulemaking authority under 42 U.S.C. Sec. 405(a) which permits her to determine disability without reference to the vocational factors set forth in 42 U.S.C. Sec. 423(d)(1)(A). See 20 C.F.R. Sec. 404.1520(c) (1985) (original version at 20 C.F.R. Sec. 404.1503 (1979)). ² Under this regulation, the ALJ follows a five-step sequential analysis for evaluating disability. Id.; Key v. Heckler, 754 F.2d 1545, 1548 (9th Cir.1985). If the ALJ finds the claimant not disabled at any step in the evaluation, he does not consider the remaining steps. 20 C.F.R. Sec. 404.1520(a) (1985); Stone v. Heckler, 752 F.2d 1099, 1100 (5th Cir.1985).

The first step requires the ALJ to determine whether the claimant is currently working. 20 C.F.R. Sec. 404.1520(b) (1985). If the claimant is working, the ALJ must find her not disabled. Id. If the claimant is not working, however, the second step requires the ALJ to determine whether the claimant suffers a severe impairment. 20 C.F.R. Sec. 404.1520(c) (1985). The regulations define a severe impairment as one that significantly limits the claimant's "ability to do basic work activities." 20 C.F.R. Sec. 404.1521(a) (1985). Basic work activities mean "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. Sec. 404.1521(b) (1985). ³ The ALJ must evaluate the severity of an impairment without reference to vocational factors. 20 C.F.R. Sec. 404.1520(c) (1985). ⁴ Only if the ALJ finds the claimant's impairment(s) severe does he proceed to the next three steps of the sequential analysis, under which he is required to consider the claimant's age, education, work experience, and ability to...