Harman v. Apfel

• Decision Date: 04 May 2000
• Docket Number: No. 98-35780,98-35780
• Citation: 211 F.3d 1172
• Parties: (9th Cir. 2000) HALRAY HARMAN, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of the Social Security Administration, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1172

211 F.3d 1172 (9th Cir. 2000)

HALRAY HARMAN, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 98-35780

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 6, 1999

Filed February 17, 2000

Amended May 4, 2000

Tim Wilborn, Tucson, Arizona, for the plaintiff-appellant.

Victoria Blais, Assistant Regional Counsel, Social Security Administration, Seattle, Washington, for the defendant-appellee.

Appeal from United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding D.C. No. 97-06251-REJ

Before: William C. Canby, Jr. and Thomas G. Nelson, Circuit Judges, and Jeremy Fogel,¹ District Judge.

ORDER

The Opinion filed February 17, 2000, slip op. 1915, and appearing at 203 F.3d 1151 (9th Cir. 2000), is amended as follows:

At slip op. 1922, delete the first paragraph under "II" up to footnote "4" and replace with the following:

It is settled law that a district court's decision to affirm, reverse or modify a determination of the Social Security Administration is reviewed de novo on appeal. Ramirez v. Shalala, 8 F.3d 1449, 1451 (9th Cir. 1993). We also review de novo a district court's determination to remand a case to the Commissioner. Once that determination is made, however, the Social Security Act does not address explicitly the degree to which a court of appeals should defer to a district court's separate and distinct determination whether the remand should be for further proceedings or for immediate payment of benefits, nor has the issue been addressed in a published opinion in this circuit.⁴

With these amendments, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

FOGEL, District Judge:

Today we hold that when a district court remands a disability benefits case to the Social Security Administration pursuant to sentence four of 42 U.S.C. S 405(g), its decision whether such a remand is for further proceedings or for an immediate payment of benefits is reviewable for abuse of discretion rather than de novo. Applying that standard to the facts presented by this appeal, we conclude the district court did not abuse its discretion by remanding Appellant's disability claim to the Social Security Administration for further proceedings rather than for immediate payment of benefits, and we affirm the judgment of the district court.

I

A. Procedural History

Appellant applied for Title II Social Security disability insurance benefits and Title XVI Supplemental Security Income on April 20, 1994. After the denial of his initial application and denial upon reconsideration, Appellant was granted a hearing before an administrative law judge (the "ALJ") on February 28, 1996. On June 25, 1996, the ALJ issued a Notice of Decision ("ALJ Decision") which found that Appellant was severely impaired but not disabled, and thereby not entitled to benefits, because he retained sufficient residual functional capacity to guard the gate "at a mill or plant " or assemble small products.² On August 28, 1997, the Appeals Council denied Appellant's request for review.

On May 7, 1998, the district court reversed the ALJ Decision, identifying several errors, including, inter alia, the ALJ's unjustified rejection of the testimony of Appellant's treating physician, Dr. Fox.³ The district court remanded the matter for further proceedings so that the identified shortcomings of the ALJ Decision could be addressed. Appellant moved for amendment of the district court's order, arguing that the court's findings mandated an immediate award of benefits. The district court denied Appellant's motion on July 7, 1998, and this appeal followed.

B. Appellant's Disability

Appellant was born November 20, 1948. At the hearing before the ALJ, vocational expert Jenipher Gaffney classified Appellant's past work experience as being that of a "carpenter, which is . . . medium skilled work." Appellant's most recent employment, according to his own testimony at the hearing, was a job building "clean rooms" in an "electronic plant" in the spring of 1991. The job lasted about one month and terminated because the project was completed. Appellant claims that he has been disabled since March 1, 1991, a date which roughly coincides with the termination of his most recent employment.

Appellant's impairment is described in the ALJ Decision as "a somatoform disorder, fibromyalgia and nocturnal myoclonus." The ALJ goes on to note that "Mr. Harman's impairments impose limitations on his ability to perform work related functions and are `severe.' " According to Appellant, his impairments manifest themselves through a wide range of inconveniences which are difficult to forecast from one day to the next but which include the following: inability to achieve deep sleep due to the myoclonus (leg twitching); inability to sit in one place more than twenty minutes without suffering back pain and a "splitting headache"; inability to stand still for twenty minutes without incurring a "fair chance [of] fall[ing] upon trying to move"; inability to locomote without a cane or other support; and difficulty lifting, grasping and stooping. Appellant claims that about fifty percent of his days are "bad," and that on bad days he "consider[s] it a significant accomplishment to make it from [his] bed to the toilet and back."

II

It is settled law that a district court's decision to affirm, reverse or modify a determination of the Social Security Administration is reviewed de novo on appeal. Ramirez v. Shalala, 8 F.3d 1449, 1451 (9th Cir. 1993). We also review de novo a district court's determination to remand a case to the Commissioner. Once that determination is made, however, the Social Security Act does not address explicitly the degree to which a court of appeals should defer to a district court's separate and distinct determination whether the remand should be for further proceedings or for immediate payment of benefits, nor has the issue been addressed in a published opinion in this circuit.⁴

"[W]hen . . . the trial court determination is one for which neither a clear statutory prescription nor a historical tradition exists, it is uncommonly difficult to derive from the pattern of appellate review of other questions an analytical framework that will yield the correct [standard of review]." Pierce v. Underwood, 487 U.S. 552, 558 (1988). Here, the task of divining a fruitful analytical framework is particularly difficult because "other questions" (id.) which intuitively seem likely subjects for analogous appellate review have been addressed by the courts only rarely and, moreover, have yielded conflicting results.

We preface our analysis with the simple observation that "decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for `abuse of discretion')." Pierce, 487 U.S. at 558. Here, Appellant contends that we should review the district court's decision de novo because "[a]pplicants for social security benefits are peculiarly in need of a full appellate review of the facts of their cases." Farley v. Celebrezze, 315 F.2d 704, 705 - 06 (3d Cir. 1963) (cited with approval in Stone v. Heckler, 761 F.2d 530, 531-32 (9th Cir. 1985). In support of his argument that the abuse of discretion standard should apply, the Commissioner notes that this Court previously has categorized as "discretionary" its own decisions concerning whether to remand cases for payment of benefits when denial of benefits is unsupported by substantial evidence. See, e.g., Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989).

A. The Distinction Between De Novo Review and Review for Abuse of Discretion

In their treatise on federal standards of review, Childress and Davis suggest that the "abuse of discretion " label appears to "describe[ ] a range of appellate responses with varying degrees of deference handed down." 1 Childress and Davis, Federal Standards of Review (hereinafter "Childress") S 4.01, 4-13 (2d ed. 1992). Normally, the decision of a trial court is reversed under the abuse of discretion standard only when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances. Valley Engineers v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998), cert. denied, 119 S.Ct. 1455 (1999). In contrast, in undertaking de novo review, the appellate court accords no deference to the trial court, but rather determines for itself whether the administrative decision should be reversed on the ground that it is arbitrary, capricious, an abuse of discretion, or contrary to law. Lake Mohave Boat Owners Ass'n. v. National Park Serv., 138 F.3d 759, 762 (9th Cir. 1998).

While the distinction between these standards seems clear enough in the abstract, in practice the distinction often begins to blur as a body of appellate case law begins to develop with respect to issues which frequently are the subject of appeals. Under either standard of review, the case law eventually creates a template which may be placed over trial court decisions to determine whether those decisions as a matter of law fall inside or outside the guidelines of permissibility.

In such situations, perhaps the most important difference between the two standards has to do with which court's judgment is paramount. In the context of de novo review, a trial court's error, or lack thereof, is defined by the appellate court's exercise of judgment. With abuse...