Marcia v. Sullivan, 88-15504

• Decision Date: 14 December 1989
• Docket Number: No. 88-15504,88-15504
• Citation: 900 F.2d 172
• Parties: , Unempl.Ins.Rep. CCH 15323A Lee R. MARCIA, Plaintiff-Appellant, v. Louis W. SULLIVAN, * Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 172

900 F.2d 172

29 Soc.Sec.Rep.Ser. 248, Unempl.Ins.Rep. CCH 15323A

Lee R. MARCIA, Plaintiff-Appellant, v. Louis W. SULLIVAN, ^* Secretary of Health and Human Services, Defendant-Appellee.

No. 88-15504.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 14, 1989. ^**

Decided April 2, 1990.

Philip Simon and James Hunt Miller, Adult Independence Development Center, Santa Clara, Cal., for plaintiff-appellant.

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

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

Before WRIGHT, HUG and LEAVY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The issue is whether the Secretary of Health and Human Services erred in denying Lee Marcia's claim for disability insurance benefits. Specifically, we must determine if the Administrative Law Judge made sufficient findings in determining that Marcia failed to meet or equal a listed impairment under 20 C.F.R. Sec. 404.1520(d), the third step in the five-step disability evaluation in the Social Security regulations.

BACKGROUND

Marcia worked for several employers in the aerospace industry primarily as an engineering At a disability hearing before an ALJ, Marcia claimed that he suffered from chronic liver disease and other medical problems, including lung impairment, peptic ulcers, back pain, and hand tremors. The ALJ found that he had significant periodic medical problems, but that they were not disabling. He also found that Marcia's impairments did not prevent him from doing past work or other work.

draftsman between June 1960 and April 1982. He applied for disability benefits in May 1985, claiming he had been disabled since April 1983.

The ALJ denied disability benefits based on these findings. Marcia's timely administrative appeal with the Appeals Council was denied. The district court upheld the decision by summary judgment, and Marcia timely petitioned for review.

We have jurisdiction under 28 U.S.C. Sec. 1291.

DISCUSSION

I. STANDARD OF REVIEW

We review the judgment of the district court de novo. Adams v. Bowen, 872 F.2d 926, 927 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 151, 107 L.Ed.2d 109 (1989). The Secretary's denial of benefits will " 'be disturbed only if it is not supported by substantial evidence or it is based on legal error.' " Brawner v. Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir.1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986)).

II. STATUTORY AND REGULATORY FRAMEWORK

Title II of the Social Security Disability Act provides that persons "under a disability" shall receive disability benefits. 42 U.S.C. Sec. 423(a)(1)(D); Winans v. Bowen, 853 F.2d 643, 646 (9th Cir.1987). To qualify for disability benefits, a claimant must establish that he or she is unable to engage in "substantial gainful activity" because of a "medically determinable physical or mental impairment" which "has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. Sec. 423(d)(1)(A). A claimant will be found disabled only if the impairment is so severe that, considering age, education, and work experience, that person cannot "engage in any other kind of substantial gainful work which exists in the national economy." Id. Sec. 423(d)(2)(A).

The Secretary has promulgated regulations which implement the provisions of the Act. 20 C.F.R. Sec. 404.1520(a)-(f). They contain a five-step sequential disability evaluation process.

At step one, the Secretary determines whether the claimant is engaged in "substantially gainful activity." If so, benefits are denied. Id. Sec. 404.1520(a) & (b).

At step two, the Secretary determines whether the impairment is "severe." ¹ Id. Sec. 404.1520(c).

At step three, the medical evidence of the claimant's impairment is compared to a list of impairments presumed severe enough to preclude gainful work. Id. Sec. 404.1520(d); see 20 C.F.R. Part 404, Subpt. P, App. 1 ("Appendix I"). If the claimant meets or equals one of the listed impairments, a conclusive presumption of disability applies. Winans, 853 F.2d at 647; Key v. Heckler, 754 F.2d 1545, 1548 (9th Cir.1985).

If the presumption does not apply, the evaluation proceeds to steps four and five, and the Secretary determines whether the claimant can do relevant past work or other work. If the claimant cannot do either, benefits are awarded. 20 C.F.R. Sec. 404.1520(e) & (f).

III. EVALUATION OF MARCIA'S PRESUMPTIVE DISABILITY CLAIM

Step three of the regulations provides:

If you have an impairment(s) which meets the duration requirement and is listed in Appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.

20 C.F.R. Sec. 404.1520(d). The ALJ found that Marcia was not entitled to a presumption of disability at step three. On appeal, Marcia contends that the ALJ erred in finding that (1) his impairment did not meet a listed impairment and (2) his impairment did not equal a listed impairment. We consider these contentions in turn.

A. Did Marcia Meet the Listing?

The listing of impairments in Appendix I "describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity." Id. Sec. 404.1525(a). The Secretary does not consider a claimant's impairment to be one listed in Appendix I solely because it has the diagnosis of a listed impairment. Id. Sec. 404.1525(d). "It must also have the findings shown in the Listing of that impairment." Id. (emphasis added); see also Social Security Ruling 83-19, at 90 (Jan.1983) (an impairment meets a listed condition "only when it manifests the specific findings described in the set of medical criteria for that listed impairment").

Chronic liver disease is a listed impairment in Appendix I under disorders of the digestive system. Appendix I, Sec. 5.05. Marcia presented medical evidence that he was diagnosed as having chronic liver disease.

We next determine whether Marcia has the specific findings associated with this impairment. Marcia claims that his chronic liver disease was accompanied by ascites, a symptom found in Sec. 5.05(D) of Appendix I. ² That finding must manifest itself as follows:

Ascites, not attributable to other causes, recurrent or persisting for at least 5 months, demonstrated by abdominal paracentesis or associated with persistent hypoalbuminemia of 3.0 gm. per deciliter (100 ml.) or less ...

Appendix I, Sec. 5.05(D).

Marcia does not meet either diagnostic prong to establish a finding of ascites. First, the medical evidence does not demonstrate a diagnosis of ascites by abdominal paracentesis. ³ Second, Marcia conceded in the district court that he failed to show that his ascites was associated with persistent low albumin of 3.0 grams per deciliter or less. ⁴ The record clearly shows that he did not meet the listing for chronic liver disease. We therefore affirm the ALJ's decision on this issue.

B. Did Marcia Equal the Listing?

Did Marcia's medical evidence equal a listed impairment? If so, he is presumptively disabled.

The regulations in Appendix I specify the requirements to establish medical equivalence of a listed impairment in Appendix I. Medical equivalence will be found "if the medical findings are at least equal in severity and duration to the listed findings." 20 C.F.R. Sec. 404.1526. Equivalence is determined on the basis of a comparison between the "symptoms, signs and laboratory findings" about the claimant's impairment as evidenced by the medical records "with the medical criteria shown with the listed impairment." Id.

Marcia presented evidence in an effort to establish equivalence. First, he offered evidence that an alternative diagnostic test performed in February 1984, a radioisotope fluid scan, established the presence of ascites. ⁵ See Social Security Ruling 83-19, at 91 (equivalency can be established when a listed impairment for which the medical findings are missing from the evidence but for which "other medical findings of equal or greater significance and relating the same impairment are present in the evidence").

Second, he presented evidence that the combination of his impairments established medical equivalence. See 42 U.S.C. Sec. 423(d)(2)(C) (requiring that "the combined effect of all of the individual's impairments" be considered, "without regard to whether any such impairment, if considered separately," would be sufficiently severe); Social Security Ruling 83-19, at 91.

The ALJ made this finding as to equivalence:

The claimant has failed to provide evidence of medically determinable impairments that meet or equal the Listings to Subpart P of Regulation 4 or the duration requirements of the Act ... (emphasis added)

Marcia argues that this finding is insufficient to show that the ALJ actually considered equivalence. He is correct.

In the context of determining whether a combination of impairments establishes equivalence, other circuits have found that the ALJ must make sufficient findings. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir.1989) (remanding to the Secretary because "the ALJ must adequately explain his or her evaluation of the combined effects of the impairments"); Jamison v. Bowen, 814 F.2d 585, 589 (11th Cir.1987) ("in order to make our review meaningful, we must be able to determine what statutory and regulatory requirements the ALJ did in fact apply--where we cannot do that we must vacate and require a remand to the Secretary for clarification").

We hold that, in determining whether a claimant equals a listing under step three of the Secretary's disability evaluation process, the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments. Applying this standard to the findings in this case, we find that the statement that Marcia did not equal the listing was insufficient.

We have discretion to...