Rice v. Chater, 95-35604
| Decision Date | 09 October 1996 |
| Docket Number | No. 95-35604,95-35604 |
| Citation | 98 F.3d 1346 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Carol Z. RICE, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner, Social Security Administration, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: REAVLEY, * REINHARDT and WIGGINS, Circuit Judges.
Claimant-appellant Carol Z. Rice appeals the summary judgment granted in favor of the Commissioner on Rice's claim for supplemental security income disability benefits. Rice makes four claims on appeal: 1 (1) the ALJ improperly determined that Rice's arthritis failed to meet the criteria of a listed impairment; (2) the ALJ erred in finding that Rice was capable of performing a "wide range of light or sedentary work;" (3) the ALJ's hypothetical posed to the vocational expert was improper because it failed to take into account Rice's mental impairments or fatigue; and (4) the ALJ improperly admitted the post-hearing report of a consulting psychologist without granting Rice's request for a supplemental hearing. We affirm.
Rice applied for and was denied supplemental security income disability benefits both initially and upon reconsideration. Upon request by Rice, an administrative hearing was held on August 26, 1992. Rice, a medical advisor, and a vocational expert appeared at the administrative hearing. After the hearing the ALJ referred Rice to a psychologist, who diagnosed malingering. Rice requested a supplemental hearing to cross-examine the psychologist. Without granting the supplemental hearing, the ALJ denied Rice's claim. The Appeals Council declined to review the ALJ's decision, making that decision final. 2 Rice appealed to the district court, which referred the matter to a magistrate judge. Rice and the Commissioner filed cross motions for summary judgment. The magistrate judge granted the Commissioner's motion, and Rice now appeals.
At the time of the administrative hearing, Rice was 40 years old and living with her parents. She had completed high school and one year of a two year licensed practical nurse (LPN) training program. She never completed the second year of the LPN course. While the record contains evidence of various medical problems, including thyroid problems, Rice's psoriatic arthritis and mental impairments are the only medical conditions relevant to her disability claim.
Dr. Stephen King, M.D., saw Rice beginning in August, 1989, and continuing until September, 1991. His notes indicate a history of musculoskeletal complaints by Rice. King diagnosed fibromyalgia, along with secondary abdominal pain and irritable bowel syndrome.
In June of 1991 King referred Rice to Dr. Kenney, a rheumatologist. Kenney reported numbness and swelling in her hands, particularly the right one, pain, which became worse when she used the hand, and tenosynovitis in the right hand, which is "an inflammation of the tendon sheath." He also reported pain in her elbows and wrists. Kenney believed that Rice might have psoriatic arthritis.
In June of 1991 and November of 1991, two different doctors assessed Rice's residual functional capacity. Both opined that Rice was capable of performing light work.
In June of 1992 Rice saw Dr. King to have a physical capacities evaluation done for welfare purposes. King indicated that Rice was "capable of performing sedentary work, but would have difficulty in performing much beyond this."
In July of 1992, Kenney reported that Rice had psoriatic arthritis and chronic pain. He confirmed the diagnosis with a positive serologic test for rheumatoid factor, antinuclear antibodies, and an elevated sedimentation rate. Other objective medical evidence supporting the diagnosis were psoriatic plaques and "pain to palpation [at] multiple sites and loss of range of motion in hands and wrists." Kenney later clarified that Rice suffered "slight loss of range of motion."
Kenney made a residual physical capacity assessment, indicating that Rice could sit 2 hours at a time and four hours total in an 8 hour day, stand for 2 hours at a time and 2 hours total in an 8 hour day, and walk for 1 hour at a time and 2 hours total in an 8 hour day. He said she could continuously carry up to 5 pounds, frequently carry up to 10 pounds, and occasionally carry up to 25 pounds, but could never carry more than 25 pounds. He stated that Rice could never crawl or climb, but could occasionally (less than 1/3 of the time) bend, squat, kneel, crouch, balance, stoop, push, pull, manipulate things with her hands and fingers, feel, and use her feet for repetitive motions. He stated that Rice first experienced these physical limitations in early 1991. He stated that Rice was "presently under good disease control."
Dr. King referred Rice to Sandra Neils, MSW, for counseling in March of 1992. Neils met with Rice for nine counseling sessions over a five-month period. Neils determined that Rice had a depressive disorder, which she described as "a recurring, mild depressive disturbance," marked by decreased energy, sleep disturbance, and feelings of worthlessness. She also diagnosed a dependent personality disorder. She found slight restrictions in activities of daily living and no difficulties in maintaining social functioning. She found that Rice seldom had deficiencies of concentration, persistence or pace. Neils made a mental residual functional capacity assessment. Neils indicated that Rice had a moderate limitation in the following areas: understanding, remembering, and carrying out detailed instructions; maintaining attention and concentration for long periods of time; completing a normal workday or workweek without psychologically based symptoms; adapting to workplace changes; and setting realistic goals and making plans independently of others. Neils then explained some of her assessments, stating that
After the hearing the ALJ referred Rice to Dr. Dennis Pollack, Ph.D., a clinical psychologist, for an assessment of Rice's intellectual, emotional, and organicity status. Pollack conducted mental testing, such as counting backwards, and found Rice to be very slow. He measured her IQ at 79, which is in the "borderline range," but in his opinion "there was a significant lack of effort on her part." He also felt that this score was inconsistent with "the abilities that she would have to have to skip a grade." 3 Pollack administered an MMPI test, which he believed showed an exaggeration of her symptoms. Pollack cut off testing because he perceived a lack of effort. His diagnosis was malingering. This diagnosis was based in part on his interpretation of the medical evidence contained in her file, although Pollack is not a medical doctor.
In response to the ALJ's stated intention to admit into evidence Dr. Pollack's post-hearing report, Rice timely objected and, in the alternative, asked that a supplemental hearing be held if Pollack's report was admitted. Although Rice never withdrew her request for a supplemental hearing, the ALJ preliminarily directed Rice's counsel to submit certain documents in lieu of a supplemental hearing. Counsel submitted the requested documents along with letters from Kenney and Neils indicating that they disagreed with Pollack's assessment. Dr. Kenney noted that the medical evidence indicated psoriatic arthritis, and Neils stated that she had seen no evidence of malingering.
Dr. Lambert, a consulting physician, characterized Rice's arthritis as mild to moderate, concluding that Rice had difficulty in carrying out some activities, but that her symptoms did not meet any of the listings. He opined that Rice did not have a significant limitation in range of motion, but that repetitive motions would exacerbate her symptoms. He also opined that Rice's fatigue could be linked to arthritis or depression.
Rice testified that she worked for forty hours per week as a housekeeper for her uncle from June through August of 1991. Her duties included general housework, vacuuming, dusting, dishes, and making beds. She stated that she overmedicated herself to enable her to do the job, and quit because of the pain, especially noting that her right hand hurt so much she could not pick up a bucket with or without water in it. She also babysat infant twins of friends on a regular basis in 1990 for one dollar per day. She lives with her parents and has never been married. She has had no other job than the housekeeping job for her uncle, which she did at the order of her parents.
Rice testified that she could sit comfortably for only 15 minutes, and stand or walk for 10 minutes. She stated that she cannot lift anything over 5 pounds because of pain, cannot carry a 3 or 4 pound chair across a room, and cannot lift anything on her right side.
Rice complained of migraines which occur weekly and last from an hour to a day. She stated that she began to suffer them one month before the hearing, and believes they are caused by stress. She stated that episodes of passing out, which strike randomly, began at the same time. She stated that she has lost consciousness twice from dizziness during the past two weeks. She complained of severe allergies, which medication sometimes controls.
She testified that her right hand is almost completely useless, rendering her unable to cook, perform many household chores, or dress herself in clothes with buttons. She stated she has problems...
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