Howard v. Heckler
| Decision Date | 17 September 1984 |
| Docket Number | No. CV 79-3019 MRP (T).,CV 79-3019 MRP (T). |
| Citation | 594 F. Supp. 457 |
| Court | U.S. District Court — Central District of California |
| Parties | James HOWARD, Plaintiff, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant. |
Walter R. Larsen, Santa Barbara, Cal., for plaintiff.
Alexander H. Williams III, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civil Div., William B. Spivak, Jr., Asst. U.S. Atty., Los Angeles, Cal., for defendant.
AMENDED ORDER ADOPTING REPORTS AND RECOMMENDATIONS OF MAGISTRATE
Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has reviewed the complaint, all of the records and files herein, the attached Reports and Recommendations of the United States Magistrate, and the objections to the Magistrate's Report and Recommendation on file herein. The Court concurs with and adopts the findings and conclusions of the Magistrate.
IT IS ORDERED that plaintiff's Motion for Summary Judgment is denied, that the defendant's Motion for Summary Judgment is granted, and that judgment is entered in favor of the defendant, Secretary of Health and Human Services.
IT IS FURTHER ORDERED that each party shall bear its own costs.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Supplemental Report and Recommendation, and Judgment herein by United States mail on the parties.
LET JUDGMENT BE ENTERED ACCORDINGLY.
AMENDED REPORT AND RECOMMENDATION OF MAGISTRATE
September 13, 1984
VENETTA S. TASSOPULOS, United States Magistrate.
This Report and Recommendation is submitted pursuant to the provisions of 28 U.S.C. § 636(b) and General Order No. 194 of the United States District Court, Central District of California.
On April 10, 1979, plaintiff, James Howard, filed a complaint for review of an adverse decision of the Secretary of Health and Human Services pursuant to 42 U.S.C. § 405(g) denying plaintiff's claim for disability benefits. Defendant Secretary answered on October 16, 1979. Cross-motions for summary judgment and supporting memoranda were filed. No oral argument was requested. On November 7, 1980, the case was ordered remanded to the Secretary. On September 13, 1983, proceedings were reopened and cross-motions for summary judgment were again filed.
The burden of proof rests upon plaintiff to establish entitlement to disability benefits. Waters v. Gardner, 452 F.2d 855 (9th Cir.1971). Once plaintiff establishes a prima facie case of disability by showing that a physical or mental impairment prevents him from engaging in his previous occupation, however, the burden of going forward with evidence shifts to the Secretary. Cox v. Califano, 587 F.2d 988, 990 (9th Cir. 1978). Conversely, if a claimant is able to perform "past relevant work," then he is not disabled. 20 C.F.R. section 404.1520(e).
If the findings of the Secretary are supported by substantial evidence they must be affirmed. 42 U.S.C. § 405(g), Harris v. Richardson, 468 F.2d 1260 (9th Cir.1972), cert. denied, 410 U.S. 986, 93 S.Ct. 1514, 36 L.Ed.2d 183 (1973). The Court must review the record as a whole to determine whether the factual findings of the Secretary have a reasonable basis in law. Ainsworth v. Finch, 437 F.2d 446, 447 (9th Cir.1971).
The United States Supreme Court has defined "substantial evidence" as used in this context as "`more than a mere scintilla ... 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, 852 (1971), quoting, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938). For example, were the Secretary to rely upon one portion of the record to the disregard of overwhelming evidence to the contrary, the Court would decide against the Secretary. Ainsworth v. Finch, supra, at 447.
Plaintiff filed claims on April 28, 1975 and on August 21, 1978 for a period of disability and for disability insurance benefits under §§ 216(i) and 223 respectively of the Social Security Act, 42 U.S.C. §§ 416(i), 423. . The claim was denied by the Social Security Administration. Plaintiff requested a hearing at which he was represented by counsel. (A.R. 22). The Administrative Law Judge ("the ALJ") found plaintiff to be not disabled. (A.R. 10-18). The Appeals Council approved the decision. (A.R. 4-5).
After remand by the Court, expert vocational testimony was received at a supplemental hearing at which plaintiff's counsel was present. (A.R. 254). Plaintiff, represented by counsel, testified at a second supplemental hearing, as did a second vocational expert. (A.R. 265).
The magistrate has reviewed the pleadings, motions, memoranda, and the administrative record.
The Appeals Council based its decision that plaintiff was not disabled on three findings of fact:
1) Plaintiff's claim of disabling pain is not credible. (A.R. 222).
2) Plaintiff is exertionally able to perform light work, as defined at 20 C.F.R. § 404.1567(b), although he is non-exertionally limited to working in an environment free of solvents, dust and fumes. (A.R. 222).
3) Light, unskilled jobs in solvent-free environments exist in significant numbers nationally. (A.R. 222).
If substantial evidence supports each of these findings, the decision of the Secretary must be affirmed.
The Appeals Council found plaintiff's allegation of disabling pain not to be credible. (A.R. 223). Continuous, uncontrolled pain can be disabling. Embry v. Secretary of Health, Education, and Welfare, 626 F.2d 93, 94 (9th Cir.1980). Plaintiff asserts continuous headache, low back pain, and burning in his feet. (A.R. 271, 272, 275, 277).
Determining whether substantial evidence supports the Appeals Council's finding that plaintiff's allegation of disabling pain is not credible is complicated by the ALJ's finding to the contrary. (A.R. 230). The ALJ observed plaintiff testify; the Appeals Council did not.
3.1. Effect of ALJ's credibility finding.
The Ninth Circuit Court of Appeals has not spoken directly to the issue whether, in reviewing a decision of the Secretary of Health and Human Services, special deference should be given the credibility findings of the Social Security Administration's ALJ. In the absence of a binding rule on this issue, the Court will fashion a rule based on Ninth Circuit law in an analogous area, judicial review of decisions of the National Labor Relations Board.
All modern Ninth Circuit law on the subject of judicial review of administrative agencies begins with the United States Supreme Court's decision in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). That case reviewed a decision of the National Labor Relations Board (hereinafter, "NLRB"). The statute authorizing judicial review, 29 U.S.C. § 160(e), required that the NLRB's decision be affirmed if supported by "substantial evidence on the record considered as a whole ...." 340 U.S. at 493, 71 S.Ct. at 467.
Mr. Justice Frankfurter considered the precise question of whether conflict between the ALJ and the Board should heighten formal judicial scrutiny of the Board's decision.
The "substantial evidence" standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of the testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than the other factors which in sum determine whether evidence is "substantial."
340 U.S. at 496-497, 71 S.Ct. at 468-469.
Three points of Mr. Justice Frankfurter's statement bear highlighting. As will be discussed, they form the foundation of subsequent law on this subject.
1) The standard of judicial review is not changed because the final agency decision differs from that of its ALJ.
2) That amount of evidence which is "substantial" varies according to the case. Substantiality of evidence is determined not according to an absolute scale, but with some consideration given to what proposition the evidence supports and to what evidence supports contrary propositions.
3) The same factor that lends unique value to an ALJ's conclusion — the ALJ's personal participation in the case — likewise limits the scope of that unique value to credibility determinations, which turn uniquely on personal observation.
The leading Ninth Circuit case interpreting Universal Camera, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, is Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074 (9th Cir.1977). (See, Loomis Courier Service, 595 F.2d 491, 496 (9th Cir.1979) ().)
In Penasquitos, as in Universal Camera, the full National Labor Relations Board had reversed the decision of an ALJ. Central to the decision were the "respective and related roles of the administrative law judge, the Board and the Court of Appeals in resolving factual disputes, particularly those turning on credibility of witnesses." 565 F.2d at 1076. The Ninth Circuit reemphasized and explicated the three observations of Justice Frankfurter noted above.
First, the formal standard of review is not changed because the NLRB reversed an ALJ's decision.
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Howard v. Heckler
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