882 F.2d 1453 (9th Cir. 1989), 87-4284, Quang Van Han v. Bowen

Docket Nº:87-4284.
Citation:882 F.2d 1453
Party Name:QUANG VAN HAN, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services, Defendant-Appellee.
Case Date:August 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1453

882 F.2d 1453 (9th Cir. 1989)

QUANG VAN HAN, Plaintiff-Appellant,

v.

Otis R. BOWEN, Secretary, Department of Health and Human

Services, Defendant-Appellee.

No. 87-4284.

United States Court of Appeals, Ninth Circuit

August 21, 1989

Argued and Submitted May 1, 1989.

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[Copyrighted Material Omitted]

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Ira R. Zarov, Oregon Legal Services Corp., Portland, Or., for plaintiff-appellant.

Shelly R. Brown and Gary J. Thogersen, Asst. Regional Counsel, Dept. of Health and Human Services, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before TANG, BOOCHEVER and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

Quang Van Han came to the United States in 1984 as a refugee from Vietnam, where he worked in an herbal medicine store, filling prescriptions according to instructions given by a "Master." His appeal from the denial of his application for Supplemental Security Income benefits appears to be the first in the nation to challenge the validity of Social Security Ruling 82-40. 1

I

Han applied for SSI benefits pursuant to 42 U.S.C. Sec. 1381 et seq. (1982 & Supp. V 1987) on March 18, 1985. His application was denied initially and upon reconsideration, and again by an Administrative Law Judge. The ALJ's decision became the final decision of the Secretary of Health and Human Services when the Appeals Council denied Han's request for review. Han appealed to a district court, which affirmed the Secretary's decision. Han v. Bowen, 671 F.Supp. 702 (D.Or.1987). Reviewing the judgment of the district court de novo, 2 we examine the decision of the Secretary to ensure that it is supported by substantial evidence and free of legal error. Adams v. Bowen, 872 F.2d 926, 927 (9th Cir.1989).

Han alleges that the ALJ committed four errors: He asserts that the ALJ (A) erroneously relied on Social Security Ruling 82-40, which he contends is an unreasonable interpretation of the Social Security Act; (B) applied improper legal standards in evaluating Han's claim of back pain; (C) received insufficient evidence about the requirements

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of Han's former job as an herbal pharmacy clerk in Vietnam; and (D) mistakenly relied on the medical opinion of Dr. Ebert, who did not have the benefit of Han's test results. We consider each allegation in turn.

II

A. A claimant is disabled, and therefore eligible to receive SSI benefits, "only if his physical or mental impairment or impairments 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. 1382c(a)(3)(B) (1982). 3 The Secretary's regulations set out a five step procedure for determining whether an individual falls within this definition. First, the claimant must not be currently working. 20 C.F.R. Sec. 416.920(b) (1988). Second, the claimant must have a severe impairment. Id. Sec. 416.920(c). Third, the impairment must be of equal severity and duration to those listed in an appendix. 4 Id. Sec. 416.920(d). If these three requirements are satisfied, the claimant is found disabled. If the third is not, the Social Security Administration proceeds to step four, and determines whether the impairment prevents the claimant from performing his past work. Id. Sec. 416.920(e). If not, the claimant is not disabled. If the claimant cannot perform his past work, then SSA reaches the fifth and final step: The claimant will be found disabled if he cannot perform any other work which exists in significant numbers in the national economy. See id. Sec. 416.920(f). 5

Social Security Ruling 82-40, which became effective on May 14, 1982, was issued in order "[t]o clarify the adjudicative policy on considering work in a foreign country as 'past relevant work' for purposes of regulations section[ ] ... 416.920(e)." SSR 82-40 at 1. Insofar as here relevant, the ruling provides:

The proper test in the fourth step of the sequential evaluation process is whether the individual can do his or her previous work, whether in the U.S. or in a foreign economy...

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