Delgado v. Heckler, 82-6000

• Decision Date: 28 December 1983
• Docket Number: No. 82-6000,82-6000
• Citation: 722 F.2d 570
• Parties: Tomas DELGADO, Plaintiff-Appellant, v. Margaret H. HECKLER, * Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 570

722 F.2d 570

3 Soc.Sec.Rep.Ser. 293

Tomas DELGADO, Plaintiff-Appellant, v. Margaret H. HECKLER, ^* Secretary of Health and Human Services, Defendant-Appellee.

No. 82-6000.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 6, 1983.

Decided Dec. 28, 1983.

Lew Hollman, Pacioma, Cal., for plaintiff-appellant.

Michael R. Power, Asst. Regional Atty., San Francisco, Cal., for defendant-appellee.

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

Before BROWNING, CHOY and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

The Department of Health and Human Services ("HHS") denied Tomas Delgado's application for Supplemental Security Income ("SSI") on the ground that he did not suffer from a "severe" impairment. Under recently adopted HHS regulations, such a determination automatically results in a denial of disability benefits. Delgado challenges the application of the regulations to the facts of his case. He also challenges the validity of the nonseverity regulation as inconsistent with the Social Security Act under which it was promulgated. We find that the Secretary's finding of nonseverity was not supported by substantial evidence. The district court is reversed.

FACTS

Delgado was born in 1922 and has a fifth grade education. He has done factory work and gardening, but has not worked since the early 1970's. He received SSI benefits based on disability from mid-1975 until mid-1979, when the benefits were terminated pursuant to a finding that he was no longer disabled. Delgado did not appeal that determination. In 1980 he filed a new application for benefits, claiming that his condition had worsened. His primary physical problem is back pain associated with discogenic disease. He also complains of abdominal pain remaining from a pre-1970 history of alcoholic liver disease including cirrhosis, and has had surgery to remove a cataract from one eye.

Delgado had a hearing before an administrative law judge ("ALJ") in June 1980. In addition to Delgado's testimony that he was in constant pain, which was occasionally immobilizing, the ALJ considered reports from several doctors. The record included an electromyogram, showing normal results, which tested for possible nerve damage from discogenic disease, and was conducted in September 1979. There is no indication in the record that the test was repeated in 1980 when Delgado began complaining of a worsening of his condition. An ophthalmologist's report showed 20/25 vision in Delgado's left eye, and 20/400 in the right. Cataract surgery was scheduled and normal vision predicted upon completion. That surgery took place shortly before the hearing, and there is no indication that it was not successful.

The ALJ referred Delgado to Dr. Fell, an orthopedic surgeon, who examined him on July 10, 1980 and diagnosed nodular fascitis of the lumbosacral spine and mild chondrolomacia of the knees. Fell noted normal range of motion and sensation except for limitation of straight-leg raising. X-rays showed some spurring, but no major spinal problems. Dr. Fell concluded that occasional squatting, bending or crawling would cause no difficulty, although repeated or sustained activities of that nature for more than four hours should be avoided. He later added that Delgado could alternately sit, stand or walk for an eight-hour day, although with some back pain. Episodes of back and knee pain could be expected due to Delgado's condition, but the condition was susceptible to improvement with medication and exercise. He believed Delgado could lift twenty-five pounds without difficulty, and greater weight on an infrequent basis.

Based on the foregoing, the ALJ concluded that Delgado's condition was not severe i.e., did not "significantly limit [his] physical or mental capacity to perform basic work-related functions." See 20 C.F.R. Sec. 416.921. The Appeals Council accepted the ALJ's decision, and Delgado then moved to reopen the case, submitting two new documents. One was a note dated May 26, 1981 from his internist, Dr. Mueller, stating that Delgado was suffering the effects of cirrhosis of the liver and disabling abdominal pain. The other was a letter dated March 12, 1981 from Dr. Fell, who had previously examined Delgado on behalf of HHS, but who later saw him as a private patient. This letter stated that, although Dr. Fell had originally thought Delgado capable of "four hours" aggregate sitting or standing per day if he did neither activity for more than one hour at a time, he now found that the back condition had worsened. Dr. Fell noted increased pain and limitations on mobility and stated that the injections and physical therapy he had prescribed had proved unsuccessful. He also noted that Delgado's stomach problems had worsened, that Delgado had seen his internist, and that he possibly had cholecystitis and pancreatitis.

The Appeals Council found the additional evidence "either consistent with evidence previously made part of the record and/or containing opinions not supported by clinical or medical evidence" and declined to vacate the prior decision. The ALJ's decision thus became the final decision of the Secretary, which Delgado then brought to the district court. His petition was reviewed by a magistrate, whose recommendation in favor of HHS was adopted by the district court judge. Delgado's action was dismissed on the merits, and he appeals. ¹

STANDARD OF REVIEW

The Secretary's determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence, 42 U.S.C. Sec. 405(g), and the Secretary applied the proper legal standards. Hall v. Sec'y of HEW, 602 F.2d 1372, 1375 (9th Cir.1979). The decision will be set aside, however, if the proper legal standards were not applied in weighing the evidence and making the decision even though the findings are supported by substantial evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir.1978).

DISCUSSION

The Social Security Act was amended in 1967 to require that any determination of a claimant's disability reflect not only his medical condition, but also those vocational factors that reflect his potential for employment. Santise v. Schweiker, 676 F.2d 925, 926 (3d Cir.1982). The amended Act provides, in relevant part:

An individual shall be considered to be disabled for purposes of this subchapter 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 (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity).

42 U.S.C. Sec. 1382c(a)(3)(A).

For purposes of subparagraph (A), an individual shall be determined to be under a disability 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. Sec. 1382c(a)(3)(B) (emphasis added).

Pursuant to statutory authorization, 42 U.S.C. Sec. 405(a), HHS promulgated regulations to be used to determine whether a claimant suffers an impairment severe enough to warrant a finding of disability. Delgado contends...