Moore v. Apfel

• Decision Date: 06 March 2000
• Docket Number: No. 98-56318,98-56318
• Citation: 216 F.3d 864
• Parties: (9th Cir. 2000) WINSTON MOORE, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of the Social Security Administration, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 864

216 F.3d 864 (9th Cir. 2000)

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

No. 98-56318

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 6, 2000--Pasadena, California

Filed June 22, 2000

Lawrence D. Rohlfing, Santa Fe Springs, California, for the plaintiff-appellant.

Jeffrey H. Baird (argued), Assistant Regional Counsel, Esther H. La, Social Security Administration, San Francisco, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Elgin Edwards, Magistrate Judge, Presiding. D.C. No. CV 97-06491-EE

Before: Ferdinand F. Fernandez, A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.

SILVERMAN, Circuit Judge:

Appellant Winston Moore appeals the decision of the district court granting summary judgment to Kenneth Apfel, Commissioner of the Social Security Administration. Moore challenges the final decision of the Commissioner denying his applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.

Moore argues that the decision of the Administrative Law Judge, as upheld by the Appeals Council and the district court, was erroneous in three respects. First, Moore argues that the ALJ erred by not properly following the mandate of the district court during the first remand. Second, Moore argues that the ALJ who made the final decision on Moore's application violated the Commissioner's Hearings, Appeals, and Litigation Manual ("HALLEX") by hearing the claim a third time after the second remand. Finally, Moore argues that the decision of the ALJ finding that a sufficient vocational base exists was not supported by substantial evidence.

We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm.

I. Background

Winston Moore applied for disability insurance benefits and supplemental security income benefits in February 1991. Moore alleged that he had been disabled since February 19, 1988, due to an injury to his right knee and leg. He also complained of limitations in his arms and of psychiatric and emotional impairments.

After administrative denials of his applications for disability insurance and supplemental security income benefits, Moore came before ALJ David Ganly on December 29, 1993, for a hearing on his application. Based in part upon the testimony of a vocational expert (VE), ALJ Ganly found that Moore was "not disabled" for purposes of benefits, and denied the claim.

ALJ Ganly's decision was upheld by the Appeals Council. Moore then brought an action for judicial review in the district court. After reviewing the ALJ's decision, Magistrate Judge Edwards remanded the case for further development of the record, noting that ALJ Ganly had found that Moore could sit for "four to six" hours, but had only asked the VE to determine what jobs were available in the national economy to someone with Moore's impairments who was able to sit for six hours.

On remand, the ALJ held another hearing, and issued a second decision. He clarified that the reference in his earlier ruling to "four to six" hours sitting meant "up to six" hours during a workday. ALJ Ganly again found that Moore could perform a significant number of jobs in the national economy, and therefore again denied the claim.

The Appeals Council reviewed ALJ Ganly's decision, and found that there was substantial evidence to support the decision. It noted, however, that on April 18, 1995, Moore had turned 50, which placed him in a different age category. The Appeals Council therefore remanded the claim with directions to consider whether significant numbers of jobs existed after April 18, 1995 -i.e. after he turned 50 and moved into a higher age category. The ALJ's findings with respect to the period before Moore turned 50 were affirmed, and Moore has not challenged this finding.

On remand for the second time, ALJ Ganly again considered the claim. ALJ Ganly considered whether significant gainful employment was available to Moore now that he was 50. Once again, the ALJ took testimony from the VE, and once again found that, for the period beginning at Moore's fiftieth birthday, significant gainful employment was still available. Accordingly, ALJ Ganly found Moore not disabled for purposes of the new age category. Moore now contends in this appeal that under HALLEX his case should have been reassigned to a different ALJ following the second remand, and that ALJ Ganly should not have been allowed to hear his case a third time.

The Appeals Council upheld the ALJ's determination and rejected Moore's complaint that ALJ Ganly should not have been allowed to handle the case again. Moore once again moved for judicial review in the district court. Magistrate Judge Edwards awarded summary judgment to the Commissioner, finding that the clarification by the ALJ upon the first remand had been proper and that the ALJ's interpretation of the HALLEX regulations regarding assignment of the same ALJ to the second remand had been reasonable. This appeal ensued.

II. Analysis

The district court's grant of summary judgment is reviewed de novo. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995). This Court must affirm if it "determine[s] that substantial evidence supports the findings of the administrative law judge (ALJ) and that the ALJ applied the correct legal standards." Id. (citations omitted).

A. The ALJ's clarification on remand

Upon review of ALJ Ganly's first decision denying benefits, the district court noted that while the ALJ had found that Moore could sit for four to six hours, the hypotheses given to the VE for use in analyzing how many jobs existed in the economy assumed Moore could sit for six hours and no testimony was elicited as to how many jobs were available if Moore could only sit for four hours. There was some confusion as to what exactly "four to six" meant. Moore's counsel argued that it meant that Moore could sit for four hours on a bad day, and six on a good one. The district court noted that if the range was indeed four to six, it was inexact, and testimony would have to be elicited to determine what jobs would be available at the low end of the range -four hours -in order to make a correct finding. Accordingly, the district court remanded for further development of the record.

On remand, ALJ Ganly clarified that he had found that Moore could sit for up to six hours in a workday. The ALJ explained that he had found that Moore could only stand for two to three hours a day, and the four to six hours of sitting simply meant that he was able to sit the balance of the hours of a normal eight hour workday. Consequently, the ALJ did not ask the VE to examine the number of jobs available to Moore if he could only sit for four hours, as that would not be consistent with or relevant to the ALJ's findings.

Moore argues that the remand order required ALJ Ganly to take evidence regarding the jobs available at the low end of the range (four hours) and did not permit the ALJ to change his previous capacity assessment of four to six hours. By changing that capacity assessment to "up to six hours," Moore argues, the ALJ went beyond the narrow confines of the remand order.

Significantly, in the order granting summary judgment that is the subject of this appeal, Magistrate Judge Edwards, the same judge who entered the first remand order, rejected this crabbed interpretation of his first remand order. Magistrate Judge Edwards noted that he did not find that Moore could only sit for four hours. Instead, he simply found that the phrase used was ambiguous, and to the extent that it could not be made more precise, the lower number would have to be assumed. If the ALJ could clarify the ambiguity by making a more precise capacity assessment, he should do so. This is clearly the correct interpretation of the district court's first remand order. The order notes the ambiguity but at no time does it purport to make findings. Nor does it direct the ALJ to limit his findings on remand to a specific inquiry. Instead, the order found that the decision could not be upheld in its existing form due to ambiguity in the ALJ's findings, and remanded for further development of the record.

We adopt the district court's interpretation of its own order and find that the ALJ's clarification to remove the ambiguity was proper. As there was no medical evidence presented that Moore's incapacities limited his ability to sit, the court's finding that substantial evidence supported the ALJ's determination that Moore could sit for up to six hours is affirmed.

B. ALJ Ganly's review of the claim for a third time on remand

After ALJ Ganly issued his second decision on the claim, the Appeals Council remanded that claim again, noting that Moore had turned 50 during the administrative process, and that while the ALJ's analysis of the period prior to age 50 was proper, further evidence relating to the existence of substantial gainful work after the age of 50 was needed. On remand for the second time, ALJ Ganly again assumed the case over the objections of Moore, who argued then, as he does now, that it was a violation of HALLEX I-2-155 for ALJ Ganly to hear the claim for a third time.

In pertinent part, HALLEX I-2-155 states:

11. Appeals Council remand. Flag and assign the case immediately. Appeals Council remands, including those generated by the courts, are assigned to the same ALJ who issued the decision or dismissal unless:

a) the case was previously assigned to that ALJ on a prior remand from the Appeals Council and the ALJ's decision or dismissal after remand is the subject of the new Appeals Council remand . . .

HALLEX I-2-155(11). Moore argues that this provision mandated that his claim be remanded to a different ALJ, and that ALJ Ganly's hearing of the claim for a third time was reversible...