Key v. Heckler, 84-5543

• Decision Date: 08 March 1985
• Docket Number: No. 84-5543,84-5543
• Citation: 754 F.2d 1545
• Parties: , Unempl.Ins.Rep. CCH 15,896 Gerald KEY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services of the United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1545

754 F.2d 1545

8 Soc.Sec.Rep.Ser. 323, Unempl.Ins.Rep. CCH 15,896

Gerald KEY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services of the United States of America, Defendant-Appellee.

No. 84-5543.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1984.

Decided March 8, 1985.

Joshua W. Potter, Potter, Ridenour & Cohen, Pasadena, Cal., for plaintiff-appellant.

Dennis Mulshine, San Francisco, Cal., for defendant-appellee.

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

Before SNEED, ANDERSON and FERGUSON, Circuit Judges.

SNEED, Circuit Judge:

Key appeals from the district court's judgment affirming the Secretary's determination that he is not disabled. Our jurisdiction over the appeal rests on 28 U.S.C. Sec. 1291 (1982). We affirm.

I. SUMMARY OF APPLICABLE LAW

Sometimes it is useful in a disability case to restate the legal matrix within which such cases arise. This is such a case. To qualify for disability benefits, a claimant must prove that he is unable to "engage in any substantial gainful activity" attributable to a "medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. Sec. 423(d)(1)(A) (1982); Waters v. Gardner, 452 F.2d 855, 857 (9th Cir.1971). The claimant's disability must be "of such severity that ... considering his age, education, and work experience, [he cannot] engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. Sec. 423(d)(2)(A).

The Secretary has promulgated a regulation to guide the Administrative Law Judge (ALJ) in determining whether a claimant qualifies for disability benefits. See 20 C.F.R. Sec. 404.1520 (1984). The regulation sets out a list of factors for the ALJ to consider during a disability inquiry. First, the ALJ considers whether the claimant is currently working: "If you [the claimant] are doing ... substantial gainful activity, we will find that you are not disabled." Id. Sec. 404.1520(b). Second, the claimant's impairment must be severe: "If you do not have any impairment(s) which ... limits your ... ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled." Id. Sec. 404.1520(c). If the ALJ finds that an impairment is not severe, the claimant will be denied disabled status regardless of his age, education, and work experience. See id. Third, if a claimant suffers from an impairment listed in Appendix 1 of the regulation, the claimant is presumptively disabled. See id. Sec. 404.1520(d). When a claimant has a severe impairment that is not enumerated in Appendix 1, the ALJ determines whether the claimant can perform the kind of work he has done in the past: "If you can still do this kind of work, we will find you are not disabled." Id. Sec. 404.1520(e). Finally, if a severe impairment precludes a claimant from "doing past relevant work," the ALJ will "see if you can do other work. If not, you are disabled." Id. Sec. 404.1520(f)(1). With the requirements of 42 U.S.C. Sec. 423 and 20 C.F.R. Sec. 404.1520, arrayed like the pales of a stockade in mind, we turn to their application to the instant case.

II. FACTS AND PROCEEDINGS BELOW

Key, a fifty-five year old man, has received electrical engineering training and in previous years has worked as a draftsman, a gardener, and a warehouseman. In 1959, Key sustained a severe head injury but subsequently returned to work and engaged in substantial gainful activity until 1981. On October 14, 1981, he applied for disability benefits. Key claims that his head injury, a heart condition, a balance problem, and difficulty in walking has rendered him disabled.

At the disability hearing, Key testified that he can walk a mile, can sit for an hour, and can stand for two hours. Key also testified that he can lift 150 pounds, that he drives a car, that he performs household chores, and that he attends a prayer meeting and Bible study at his church that lasts for two hours. Key's wife corroborated the claimant's testimony.

Based on the medical evidence submitted at the hearing and Key's own testimony, the ALJ found that, although Key suffers from post-right hemisphere trauma with mild-left hemiparesis, he retains the ability to perform basic work-related activities. ¹ The ALJ therefore determined that Key is not disabled. The Appeals Council affirmed.

Key filed a complaint for review of the Secretary's decision in district court. The district court affirmed the Secretary's decision. Key filed a timely appeal with this court.

III. DISCUSSION

Key advances four arguments on appeal. First, he alleges that the ALJ's categorization of his impairments as "non-severe" and therefore not disabling lacks substantial evidence. Second, Key argues that the ALJ failed to fully and fairly develop the record at the disability hearing. Third, he asserts that this court should remand the case to the ALJ for consideration of new evidence. Finally, Key attacks the validity of the Secretary's "severity" regulation and maintains that 20 C.F.R. Sec. 404.1520(c) (1984) conflicts with 42 U.S.C. Sec. 423(d)(2)(A) (1982). We hold that none of these contentions justifies a reversal of the judgment of the district court.

A. Substantial Evidence of a Non-Severe Disability

Our scope of review of disability determinations is limited: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ...." 42 U.S.C. Sec. 405(g) (1982); Chavies v. Finch, 443 F.2d 356, 357 (9th Cir.1971); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.1971). Substantial evidence means such relevant evidence as a reasonable mind would 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 (1971); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir.1981). Where the evidence as a whole can support either outcome, we may not substitute our judgment for the ALJ's. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). This latter principle is particularly applicable in this case.

Here, the ALJ heard conflicting reports from medical experts. Dr. Sung, Dr. Jesson, and Dr. Peterson concluded that Key's physical ailments prevented him from engaging in substantial gainful activity. The clinical findings of Dr. Mehta and Dr. Hunter, however, contradict their reports. Dr. Mehta confirmed Dr. Sung's and Dr. Peterson's diagnoses of Meniere's disease, but noted that the condition had been treated with Antivert. Dr. Mehta, although offering no opinion on the appellant's employability, indicated that Key seemed well-oriented and under no apparent distress. Dr. Hunter, moreover, concluded that the physical symptoms stemming from the 1959 accident did not render Key totally disabled.

The ALJ, after considering all the evidence regarding his physical condition, concluded that Key did not have a severe disability and could perform basic work-related activities. The medical evidence presented perhaps would permit a reasonable mind to make a finding of disability. It also would permit a finding of no disability. When there is evidence sufficient to support either outcome, we must affirm the decision actually made. See Rhinehart, 438 F.2d at 921.

Key argues, however, that none of the reports of the medical experts conflict with regard to the diagnosis of Meniere's disease. Therefore, Key contends, he suffers from an impairment listed in Appendix 1, see 20 C.F.R. pt. 404, subpt. P, App. 1, Sec. 2.00 B.2, and is presumptively disabled. See 20 C.F.R. Sec. 404.1520(d). This does not carry the day for Key, however. ²

The mere diagnosis of an impairment listed in Appendix 1 is not sufficient to sustain a finding of disability. The Listing of Impairments does describe conditions that are generally considered severe enough to prevent a person from doing any gainful activity. But the ALJ "will not consider your impairment to be one listed in Appendix 1 solely because it has the diagnosis of a listed impairment. It must also have the findings shown in the Listing of that impairment." Id. Sec. 404.1525(d) (emphasis added).

Dr. Sung, Dr. Peterson, and Dr. Mehta all diagnosed Meniere's disease. For the diagnosis of Meniere's disease to qualify as a listed impairment, though a number of other findings are necessary. The findings must include disturbances of balance characterized by "an hallucination of motion or loss of position sense and a sensation of dizziness.... Nausea, vomiting, ataxia and incapacitation are frequently observed." 20 C.F.R. pt. 404, subpt. P, App. 1 Sec. 2.00 B.2 (emphasis added). Yet Dr. Hunter, who performed a full neurological examination, found no evidence of ataxia. Meniere's disease, when severe, is characterized by "paroxysmal attacks of vertigo, tinnitus, and fluctuating hearing loss." 20 C.F.R. pt. 404, subpt. P, App. 1, Sec. 2.00 B.2. Here, however, Dr. Hunter found that "auditory acuity was normal." Because of the lack of the required findings, the ALJ's conclusion withstands Key's attack.

Likewise, the diagnosis of mild left hemiparesis does not establish the existence of persistent disorganization of motor function, see 20 C.F.R. pt. 404, subpt. P, App. 1, Sec. 11.00(C), or a central nervous vascular accident, see 20 C.F.R. pt. 404, subpt. P, App. 1, Sec. 11.04. The assessment of an impairment under section 11.00(C) "depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms." 20 C.F.R. pt. 404, subpt. P, App. 1, Sec. 11.00(C). Yet Dr. Hunter found that Key's muscle size, strength, and tone were normal and that Key showed surprisingly good bilateral grip strength. Under section 11.04, a claimant must exhibit "ineffective speech or communication" or "significant and persistent disorganization of motor function." 20...