Quang Van Han v. Bowen, 87-4284

• Decision Date: 21 August 1989
• Docket Number: No. 87-4284,87-4284
• Citation: 882 F.2d 1453
• Parties: , Unempl.Ins.Rep. CCH 14874A QUANG VAN HAN, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1453

882 F.2d 1453

26 Soc.Sec.Rep.Ser. 583, Unempl.Ins.Rep. CCH 14874A

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.

Argued and Submitted May 1, 1989.

Decided Aug. 21, 1989.

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 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. A job in a foreign economy need not have a counterpart in the U.S. economy, and the lack of authoritative occupational reference materials for foreign economies is not a barrier to the decision that a claimant can or cannot meet the physical and mental demands of a formerly held foreign job as he or she described it.

The relevance of past work in a foreign economy for purposes of regulations section[ ] ... 416.920(e) is no different from the relevance of past work in the U.S. economy with respect to the physical and mental demands of the particular past job. If a claimant can meet the sitting, standing, walking, lifting, manipulative, intellectual, emotional and other physical and mental requirements of a past job, he or she is still functionally capable of performing that job regardless of the fact that the individual no longer resides in the country where the past work was performed. It is only after a claimant proves that he or she is not able to do his or her previous work that the burden shifts to the Secretary to show that there is work available in the U.S. national economy which the claimant can do (the fifth and last step of the sequential evaluation process).

Id. at 2-3. The ALJ determined that Han was physically capable of performing his past work in an herbal medicine store, noted that Ruling 82-40 made irrelevant the fact that this work was in a foreign country and accordingly denied benefits. Han claims that the ruling is inconsistent with the Social Security Act.

Social Security Rulings do not have the force of law. Paxton v. Secretary of Health & Human Servs., 856 F.2d 1352, 1356 (9th Cir.1988). Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations. ⁶ Accordingly, we defer to Social Security Rulings unless they are plainly erroneous or inconsistent with the Act or regulations. ⁷ Id.; see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).

Ruling 82-40 is not inconsistent with the Social Security Act. The Act sets out two requirements for disability: A claimant must (1) be "unable to do his previous work," and (2) be unable to "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). Although the Act requires "other" work to exist in the United States, it places no such limitation on "previous" work; it is therefore reasonable to infer that the ability to perform previous work renders a claimant ineligible for benefits whether or not that work exists in the United States.

Another plausible reading of section 1382c(a)(3)(B) is urged by Han: He argues that the word "other" preceding "kind of substantial gainful work" indicates that "previous work" is a subset of "substantial gainful work which exists in the national economy," and that previous work must therefore also exist in the national economy. This is a reasonable interpretation of the statute, but not the only one. It is also reasonable to construe "previous work" and "other" work as separate categories, neither a subset of the other. Under such an interpretation, the limitations governing other work do not modify previous work; indeed, as discussed above, their absence gives rise to the inference that previous work is not subject to the same restrictions.

Ruling 82-40 thus embodies the Secretary's choice between two reasonable interpretations of section 1382c(a)(3)(B), neither of which would be inconsistent with the Act. Whether we might consider one reading superior to the other is irrelevant for purposes of judicial review: It is axiomatic that "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. As Ruling 82-40 is not inconsistent with the Social Security Act, we cannot invalidate it on that ground.

Neither is Ruling 82-40 inconsistent with the regulation it interprets. Section 416.920(e) says nothing about whether past work was performed in the United States or abroad. As with the statute, the regulation's silence can give rise to the reasonable inference that it places no restrictions on the location of the claimant's previous work. Nor is Ruling 82-40 inconsistent with the five step evaluation process as a whole. Each of the steps asks the ultimate question, whether the claimant is healthy enough to be employable, in terms that approximate the statute with increasing precision. If the claimant is in sufficient physical and mental condition to perform his previous work, his impairment is clearly not so severe as to preclude employment. This should hold true no matter where his previous work took place, unless it can be shown that employment in a foreign country is less taxing than work in the United States. If a claimant can show that his previous work in a foreign country is less physically or mentally grueling than sedentary work in the United States, he may be able to argue that Ruling 82-40, as applied to him, would conflict with the Social Security Act or the five step evaluation process. Han has not so shown here.

An agency's interpretation of its own regulation is controlling unless it is plainly erroneous or inconsistent with the regulation. Robertson v. Methow Valley Citizens Council, --- U.S. ----, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989). Ruling 82-40 is neither; the ALJ thus did not err in applying it to Han's case.

B. Han asserts that the ALJ discounted his complaints of excess pain solely because they are unsupported by objective medical evidence. Had the ALJ done so, he would have erred, Varney v. Secretary of Health &...