Barker v. Secretary of Health and Human Services

• Decision Date: 17 October 1989
• Docket Number: No. 88-6039,88-6039
• Citation: 882 F.2d 1474
• Parties: , Unempl.Ins.Rep. CCH 14870A Harry L. BARKER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1474

882 F.2d 1474

26 Soc.Sec.Rep.Ser. 590, Unempl.Ins.Rep. CCH 14870A

Harry L. BARKER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 88-6039.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 30, 1989.

Decided Aug. 23, 1989.

As Amended Oct. 17, 1989.

Martin Taller, Law Offices of Martin Taller, Anaheim, Cal., for plaintiff-appellant.

John R. Bolton, Asst. Atty. Gen., Robert C. Bonner, U.S. Atty., Richard K. Waterman, Chief Counsel, Region IX, David R. Mazzi, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON and NELSON, Circuit Judges, and PATEL, District Judge. ^*

PATEL, District Judge:

Harry L. Barker appeals the District Court's decision affirming the Administrative Law Judge's determination that he is not disabled within the meaning of the Social Security Act, 42 U.S.C. Sec. 301 et seq. We affirm.

BACKGROUND

Harry Barker is a 52 year-old high school graduate and former electrician. He has worked as an electrician, foreman electrician and working supervisor. Mr. Barker suffered a cerebrovascular accident in February 1982, characterized as a "small" or "slight" stroke. He suffered another incident in November 1982 and was again hospitalized for a cerebrovascular accident involving disorientation, loss of memory and withdrawn behavior. He experienced at least two other seizures in March 1983. The seizure activity has since been checked by daily doses of the medication Dilantin. No seizure episodes have occurred since April 1984. The residual symptoms of the stroke included some difficulties with speech and language, a slowing of normal mentation, and a loss of minimal degree of fine coordinating ability in the right upper extremity.

Appellant continued to work as an electrician until May 11, 1984, when he fell off a ladder, sustaining a knee injury. Appellant's application for disability benefits is based upon a combination of physical and mental impairments stemming from his cerebral vascular accidents of February and November 1982 and his March 1983 seizures.

An evaluation prepared by R. Wayne Brown, Ph.D., on December 7, 1985, found that Mr. Barker tested in the "severe" range of impairment on the Reitan Battery test. The Reitan Battery measures organic impairment by means of a variety of exercises testing concentration, coordination, memory, motor control, abstract abilities and other cognitive and physical functions.

Dr. Brown's report also indicated that appellant suffered a mild impairment of his ability to relate to others, a moderate degree of restriction of daily activities, a moderately severe limitation of his ability to comprehend and follow directions, a mild restriction on his ability to perform simple tasks and a moderate restriction on his ability to perform repetitive tasks. On his "Supplemental Questionnaire as to Residual Functional Capacity," Dr. Brown did not place Mr. Barker in the "severe" category of impairment on any of the eleven questions. He rated Mr. Barker's impairment or limitation as "moderately severe" in three areas: ability to comprehend and follow instructions, ability to perform complex tasks and ability to perform varied tasks.

Appellant applied for Social Security Disability Insurance Benefits on September 12, 1984, alleging disability onset date of The ALJ's decision denying benefits was rendered on January 24, 1986. The ALJ found that appellant had the residual functional capacity to perform light, entry-level, unskilled jobs, taking into consideration the restrictions imposed by his impairments. Although the ALJ found that the evidence did not support plaintiff's counsel's hypothesis that the 1200 gatekeeper jobs would be precluded because of plaintiff's temperment, Tr. at 15, he found that even if these jobs were excluded, the remaining jobs constituted a significant number within the meaning of 42 U.S.C. Sec. 423(d)(2) (1982 & Supp.1987) and Martinez v. Heckler, 807 F.2d 771 (9th Cir.1986).

May 11, 1984. The application was denied initially and upon reconsideration. A hearing was held on December 18, 1985. At the hearing, a vocational expert testified that despite appellant's restrictions, there were specific jobs that he would be able to perform, and cited approximately 1,000 hospital laundry worker jobs and 900 garment sorter jobs in the local economy. The expert testified that none of the cited jobs would be excluded by appellant's low-normal I.Q.

The Appeals Council denied appellant's request for review on May 7, 1986, declaring that the ALJ's decision of January 24, 1986 stands as the final decision of the Secretary. Appellant filed a civil complaint in the Central District of California on June 3, 1986. The United States Magistrate issued his findings on March 6, 1988. In a judgment entered on April 5, 1988, the United States District Court adopted the recommendation of the Magistrate and upheld the Secretary's decision.

On July 9, 1986, while appellant's civil action was pending, he filed a new application for Social Security Disability Benefits. After an initial denial, the claim was granted upon reconsideration. An Award Certificate was issued on January 24, 1987 with an onset of disability date of January 25, 1986.

With this appeal, Mr. Barker seeks benefits for the period from the alleged date of the onset of his disability, May 1984, through January 24, 1986, the date his disability payments began. Mr. Barker contends that there is no substantial evidence that there is a significant number of jobs in the national economy that he can perform, arguing that jobs performed principally or often by retarded workers "under special conditions" should not be included in the calculation of total number of jobs, and that the number should be compared to the population of the relevant geographical area, Los Angeles and Orange Counties. He further argues that the ALJ erred by refusing to permit counsel to ask certain questions of the vocational expert. Finally, Mr. Barker argues that there is no substantial evidence in the record that his psychiatric impairment does not meet the criteria of Section 12.02 of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 (1988), and that he is therefore entitled to benefits.

LEGAL STANDARD

To qualify for disability benefits, the claimant must establish a medically determinable physical or mental impairment that is expected to result in death or last for a continuous period of at least twelve months which prevents him or her from engaging in substantial gainful activity. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir.1984).

This court may reverse the Secretary's decision that a claimant is not disabled "only if it is based on legal error or if the fact findings are not supported by substantial evidence." Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir.1987). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Sprague, 812 F.2d at 1230. Our review, however, "must consider the record as a whole," not just that part which supports the Secretary's decision. Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988).

DISCUSSION

I. Appellant's Disability Under Section 12.02

We turn first to appellant's challenge to the ALJ's determination that he is To be found disabled within the meaning of Section 12.02, which pertains to organic mental disorders, appellant must establish a "loss of specific cognitive abilities or affective changes" as described in Subdivision A and that condition must result in at least two of the following:

not disabled within the meaning of Section 12.02 of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 (1988). This challenge is a threshold issue because if this court reverses the ALJ's finding under Section 12.02, it would thereby establish that appellant is presumptively disabled without consideration of the vocational factors raised by appellant's other arguments. See 20 C.F.R. Part 404, Subpart P, Appendix 1 (1988).

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or

4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).

20 C.F.R. Part 404, Subpt. P., App. 1 (1988).

The ALJ found that appellant met the criteria for loss of cognitive abilities under Subdivision A, but did not meet at least two of the Subdivision B criteria as required for a finding of disability. Appellant argues that this finding of the ALJ is not supported by substantial evidence.

The ALJ found a moderate functional limitation in the first two Subdivision B criteria, activities of daily living and maintaining social functioning. Appellant argues that the report of Dr. Brown, the psychiatrist who examined Mr. Barker in December 1985, supports a greater degree of impairment. Appellant notes that Dr. Brown found that appellant's "social as well as family life has become quite limited ... Generally, he tries to avoid most people and any stressful situations." Tr. at 288. The Secretary points out, however that Dr. Brown's description apparently came primarily from appellant himself and that the information reflected in the report is refuted to some extent by appellant's testimony at the hearing. For example, appellant testified that he visited neighbors,...