Christensen v. Bowen, C-85-3326 SC.

• Decision Date: 28 April 1986
• Docket Number: No. C-85-3326 SC.,C-85-3326 SC.
• Citation: 633 F. Supp. 1214
• Court: U.S. District Court — Northern District of California
• Parties: Keith CHRISTENSEN, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

633 F. Supp. 1214

Keith CHRISTENSEN, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

No. C-85-3326 SC.

United States District Court, N.D. California.

April 28, 1986.

COPYRIGHT MATERIAL OMITTED

Harvey P. Sackett, San Jose, Cal., for plaintiff.

John P. Russoniello, U.S. Atty., San Francisco, Cal., for defendant.

ORDER

CONTI, District Judge.

Plaintiff brings this action pursuant to section 205(g) of the Social Security Act ("Act"), 42 U.S.C. section 405(g), to obtain judicial review of a "final decision" of the Secretary of Health and Human Services ("Secretary"), denying his claim for disability insurance benefits ("DIB").

The matter is presently before the court on defendant's motion for remand and both parties' motions for summary judgment.

In order to be affirmed on appeal, the Secretary's findings must be supported by substantial evidence and the Secretary must have applied the proper legal standards in denying plaintiff's claims. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983). If the Secretary's findings are not supported by substantial evidence or are based upon a legal error, the Secretary's denial of benefits must be set aside. Kail v. Heckler, 722 F.2d 1496 (9th Cir.1984). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," and it must be based on the record as a whole. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

An individual is disabled under the Act if he is unable to,

"engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months."

42 U.S.C. section 423(d)(1)(A). The impairment must be "of such severity that the claimant 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. section 423(d)(2)(A). The claimant has the initial burden of establishing that he is unable to do his previous work, but once the claimant has made such a showing the burden shifts to the Secretary to come forward with specific findings showing that there is other substantial gainful activity that the claimant can perform. Bonilla v. Secretary of HEW, 671 F.2d 1245, 1246 (9th Cir.1982); Hall v. Secretary of HEW, 602 F.2d 1372, 1375 (9th Cir.1979). Under the "medical-vocational guidelines" ("grids") promulgated by the Secretary, see Appendix 2 of Subpart P, 20 C.F.R. section 404.1501 et seq., a claimant will be found capable of "other substantial gainful employment" if he meets certain age, educational, skill and exertional requirements.

While the medical-vocational guidelines provide some evidence of a claimant's ability to engage in substantial gainful work, however, it is well established that they are not of themselves sufficient to meet the Secretary's burden of proving nondisability. In Lightfoot v. Mathews, for example, this court held that a disability claimant's capacity to work "must be assessed in terms of age, education, work experience and impairments," and that "this requires a finding of capacity to work which is expressed in specific kinds of jobs ... not simply in terms of catch-all categories." 430 F.Supp. 620, 621 (N.D.Cal.1977). Similarly, in Hall v. Secretary of HEW, the Ninth Circuit Court of Appeals stated that the Secretary must "come forward with specific findings showing that the claimant has the physical and mental capacity to perform specified jobs," and that "the better method to demonstrate this is through the testimony of a vocational expert," although such testimony "would not be required when the availability of work is established by other reliable evidence." 602 F.2d 1372, 1377 (9th Cir.1979). Although one court in this circuit has held that the medical-vocational guidelines supply the "other reliable evidence" required by Hall (see Simonsen v. Secretary of Health and Human Services, 512 F.Supp. 1064 (S.D.Cal.1981)), the rule in this district is that they do not. See Allen v. Schweiker, 546 F.Supp. 623, 625 (N.D.Cal. 1981); Ibarra v. Schweiker, 543 F.Supp. 49, 52 (N.D.Cal.1981); Davis v. Schweiker, 536 F.Supp. 90, 95 (N.D.Cal.1982).

I. BACKGROUND.

Plaintiff in this case filed an application for DIB on November 17, 1983, alleging inability to work since May 6, 1983. The application was denied initially and on reconsideration by the Social Security Administration ("SSA"). Accordingly, plaintiff filed for a hearing before an administrative law judge ("ALJ") pursuant to 42 U.S.C. § 405(b). On March 7, 1985, the ALJ determined that plaintiff retained the residual functional capacity to perform work that did not involve high levels of stress, and therefore was not disabled. The Appeals Council affirmed the ALJ's findings on April 23, 1985, whereupon plaintiff filed the present action with this court.

Plaintiff is a 56-year old male who has a Bachelor's degree from Sacramento State College. His work history consists of 36 years of uninterrupted employment with Sears Roebuck Company as an operating superintendent and operating manager. When he last worked, he was responsible for the hiring, firing and discipline of 380 employees (Tr. at 18), in addition to the implementation of budgetary guidelines from Sears headquarters in Chicago (Tr. at 49-50). He worked a minimum of 10 hours per day and sometimes worked as many as 12 to 16 hours per day (Tr. at 221).

Plaintiff's alleged disability began in May 1983. At that time he consulted Dr. Thomas Ball for symptoms of significant work-induced stress, including severe depression, crying spells, suicidal tendencies, chronic fatigue, loss of appetite and a decreased sexual drive. Tr. at 206-07. Pursuant to the recommendations of Dr. Ball and plaintiff's work supervisor, plaintiff took a leave of absence from his job for a five-week period. Plaintiff returned to work on July 5, 1983. He continued to experience serious mental problems, including illegible handwriting, speaking with hesitation, difficulty in composing his thoughts, and a fear of leaving his office. Consequently, plaintiff again left work at Sears on August 7, 1983, and has not worked since.

Dr. Ball continued to treat plaintiff throughout 1983 and 1984. Dr. Ball prescribed Adapin, Xanax, and Halcion. In a report dated June 25, 1984, Dr. Ball indicated that plaintiff's "domestic activities" were unaffected by his mental condition, with the exception of sleeping difficulties, and that plaintiff's capacity to cope with the pressures of ordinary work seemed to be average. He noted, however, that plaintiff had no inclination to return to the stressful circumstances of his previous managerial position, but felt himself more capable of functioning in a work situation that was primarily physical (Tr. at 17). In a subsequent report dated September 11, 1984, Dr. Ball described plaintiff's psychiatric symptoms as few, mild, and "not incapacitating." (Exhibit 19 to ALJ's memorandum of decision.)

In a consultative psychiatric evaluation dated August 14, 1984, Kathryn H. Knutsson, M.D. gave the following impression:

This patient could benefit from appropriate anti-depressant medication and talking type of psychotherapy. He is bottled up within himself; is very self-critical. If he is able to learn new skills he would be able to work on for many years. When I saw him on 12/20/83 he was obviously not ready to return to work.

Tr. at 172. In a report dated September 17, 1984, Robert C. Burr, M.D., stated:

He seems to have many of the anal-compulsive character traits often seen in people who are predisposed to depression. At present he seems to be able to function adequately as long as he is placed in a sheltered environment in which very little is actually required of him.

The idea of returning to the competitive work world seems to produce instant anxiety.

Mr. Christensen is obviously doing better than he did when he was still working at Sears in the summer of 1983. He does not appear to have recovered to the point where he could return to work.

Tr. at 189 (emphasis added). Donald L. Tasto, Ph.D., also conducted a consultative psychological evaluation of Mr. Christensen. In his report dated January 10, 1985, Dr. Tasto stated:

I think that, because of his memory problems, concentration difficulties and fatigability, Mr. Christensen is presently unable to hold a job with much responsibility or one that requires much stamina, ability to recall, or intense concentration. I think it is an unanswered question at this point as to whether he will be able to handle something more demanding in the future. It is quite possible his symptoms will change as he changes his use of medication. This issue aside, I do not think that Mr. Christensen will ever be able to return to a job with a high degree of stress like he had when working for Sears. Whether or not his intellectual capabilities return as a result of changing medication usage, I think his capability to deal with stress has been permanently reduced and he, therefore, must be precluded from any job where stress is more than moderate and periodic.

Tr. at 199-200 (emphasis added). The most recent assessment of residual functional capacity was rendered by Bradley M. Greenblott, M.D. In his report dated February 8, 1985, Dr. Greenblott concluded:

At the present time, Mr. Christensen is clearly totally temporarily disabled from a psychiatric standpoint. He is unable to tolerate even minimal stress, and can in no way handle competitive employment. I do not believe that he is capable of re-training programs at the present time. The extent of his depression does not allow for this.

Tr. at 224 (emphasis added).

In rejecting the above findings and...