Gonzalez v. Harris, 78-3369

• Decision Date: 27 October 1980
• Docket Number: No. 78-3369,78-3369
• Citation: 631 F.2d 143
• Parties: Margarita GONZALEZ, Plaintiff-Appellant, v. Patricia R. HARRIS, Secretary of the United States Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 143

631 F.2d 143

Margarita GONZALEZ, Plaintiff-Appellant, v. Patricia R. HARRIS, Secretary of the United States

Department of Health and Human Services, Defendant-Appellee.

No. 78-3369.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 10, 1980.

Decided Oct. 27, 1980.

Robert Taren, argued for plaintiff-appellant; Douglas C. Gillies, Santa Cruz, Cal., on brief.

Maria Rivera, Asst. U.S. Atty., San Francisco, Cal., argued for defendant-appellee; Linda C. Jamieson, Asst. U.S. Atty., San Francisco, Cal., on brief.

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

Before MERRILL, Circuit Judge, MARKEY, ^* Customs and Patent Appeals Judge, and BOOCHEVER, Circuit Judge.

MERRILL, Circuit Judge:

This action was brought by appellant pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to review a decision of the Social Security Administration terminating both her disability insurance benefits and her supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq.; 42 U.S.C. §§ 1382 et seq.

The disability program is administered jointly by state and federal agencies. In 1975, the Social Security Administration awarded appellant disability benefits, subject to monitoring by a state agency to assure that her eligibility for benefits continued. In 1976, the state agency conducted an investigation and determined that disability had ceased as of December, 1976. ¹ This determination was reported to and accepted by the Social Security Administration, which then notified appellant that her benefits would be terminated in two months.

At appellant's request, a hearing was conducted on June 23, 1977, before an Administrative Law Judge. He accepted the state agency's determination that the prior disability had ceased as of that date, and ruled that appellant's entitlement to social security disability benefits and supplemental security income benefits ended effective February, 1977. Appellant requested and secured review by the Appeals Council, which affirmed the decision of the Administrative Law Judge. This action was then commenced. The district court rendered summary judgment for the Secretary, and this appeal was taken.

42 U.S.C. § 423(d)(1) provides:

"The term 'disability' means-

(A) inability 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 12 months; * * * " (emphasis supplied).

Section 423(d)(3) provides:

"(3) For purposes of this subsection, a 'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." (emphasis supplied).

The Supreme Court has stated:

"In order to establish initial and continued entitlement to disability benefits a worker (must satisfy the requirements of 42 U.S.C. §§ 423(d)(1)(A) and 423(d)(3))

To satisfy this test the worker bears a continuing burden of showing, by means of 'medically acceptable clinical and laboratory diagnostic techniques,' § 423(d)(3), that he has a physical or mental impairment 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 * * * .' " (emphasis supplied).

Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, (1976).

This court has held that the burden lies on a claimant to establish that a physical or mental impairment prevents him or her from engaging in his or her previous occupation. The burden then shifts to the Secretary to prove that the claimant can engage in other types of gainful work. Johnson v. Harris, 625 F.2d 311 (9th Cir.); Cox v. Califano, 587 F.2d 988 (9th Cir. 1978).

On review of an agency determination that disability has ceased, the question is whether the finding of the agency is supported by substantial evidence. Hall v. Secretary of Health, Education and Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979). In our case the question is whether appellant has met her burden of establishing a prima facie case of disability as of December, 1976. As the Supreme Court has noted, that burden is a continuing one. It does not cease or shift after an initial ruling of disability has been had. Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972).

Before the Administrative Law Judge, appellant was the only witness. She testified to her aches and pains and limitations on her physical capacity to perform useful and routine tasks. Medical evidence, however, on which by statute any determination of disability must rest, was notably lacking. Appellant's regular doctor, Dr. Nestler, filed a series of reports noting the days on which appellant had called on him over a period of years, and the complaints she had recited on those occasions (e. g., aches, pains, fever, cough, sore throat, vomiting, chills, flu-like syndrome). Nothing in those reports related to the question of disability. The only medical evidence in the administrative record bearing on the question of disability as statutorily defined was (1) a letter from a Dr. Newhall, apparently responding to an inquiry from the state agency in 1975 prior to its initial grant of disability benefits to appellant and thus not directly relating to conditions existing at the time of the investigation here in question; (2) a report of a contact made by an agency representative with Dr. Nestler in January, 1977. The letter written in 1975 stated: "Significant deficits in stamina and ability to perform any type of physical activity involving even mild exertion are expected to continue throughout the foreseeable future." The 1977 report stated: "Dr. Nestler has been treating claimant for a number of years. She has always been obese but this has not prevented her from being quite active. She is able to stand, walk and sit without difficulty. She...