Young v. Sullivan

• Decision Date: 07 August 1990
• Docket Number: No. 88-15656,88-15656
• Citation: 911 F.2d 180
• Parties: , Unempl.Ins.Rep. CCH 15664A James T. YOUNG, Plaintiff-Appellee, v. Louis W. SULLIVAN, M.D., * Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 180

911 F.2d 180

30 Soc.Sec.Rep.Ser. 696, Unempl.Ins.Rep. CCH 15664A

James T. YOUNG, Plaintiff-Appellee, v. Louis W. SULLIVAN, M.D., ^* Defendant-Appellant No. 88-15656.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 8, 1990.

Memorandum May 3, 1990.

Order and Opinion Aug. 7, 1990.

Judith A. Waltz, argued; David R. Mazzi, Asst. Regional Counsels, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellant.

Frank J. Reilly, Neyhart, Anderson, Nussbaum, Reilly & Frietas, San Francisco, Cal., for plaintiff-appellee.

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

Before CHOY, THOMPSON and TROTT, Circuit Judges.

ORDER

The memorandum filed May 3, 1990, 902 F.2d 42, is amended and redesignated as an opinion, authored by Judge Choy.

OPINION

CHOY, Circuit Judge:

This case involves a dispute between Appellant Secretary of Health and Human Services ("Secretary"), and Appellee James T. Young about whether Young was permanently disabled within the period of his coverage. After a hearing, an administrative law judge (ALJ) denied Young permanent disability benefits. The Appeals Council affirmed the ALJ opinion, thereby making it the final decision of the Secretary. On judicial review, the district court reversed the ALJ and held that Young was per se disabled because his impairment was severe and was one of the listed impairments that compel a finding of permanent disability. The Secretary timely appealed.

We reverse the ruling of the district court. It is not enough for an applicant to show he has a severe impairment that is one of the listed impairments to find him per se disabled. An applicant must show that his impairment meets or equals the severity and durational requirements for the applicable impairment. Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir.1985).

Because the ALJ's finding that Young's impairment did not meet or equal the severity required for a finding of per se disability was supported by substantial evidence, we reinstate that finding. Further, the ALJ's analysis through the final two steps of the process used to determine eligibility was also free from legal error and supported by substantial evidence. We therefore reverse the district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

Young was born on January 13, 1939. He has the equivalent of a high school education (10th grade plus GED) and has completed training courses in basic electricity and real estate. He has worked as a linesman supervisor and troubleshooter for a utility company. Young was last insured for disability insurance benefits on September 30, 1982.

Young sustained a fracture of the left femur on May 12, 1976. ¹ He has not worked since this injury. His recovery was complicated by phlebitis in the left limb. In November, 1977, Young was diagnosed as having deep venous insufficiency with stasis dermatitis and edema. According to the notes of Young's treating physician, two small ulcerations developed around the end of February or beginning of March 1980. They had healed by March 1981. As of November 30, 1981, there had been no recurrence of ulceration. On April 6, 1982, an examination of the left knee showed mild crepitation and some grating on flexion and extension.

Several reports postdated Young's insured status. A rehabilitation assessment performed on November 22, 1982 recommended that Young not be found permanently disabled. In December, 1982, a medical examination revealed tenderness and reduced active range of motion in the left knee, some pitting edema (place where pressure was focused would remain indented for a short period) in the lower left leg, and phlebitis. In a 1983 deposition, Young's treating physician opined that Young should not sit for more than 30 minutes or stand in one spot for more than 15 minutes.

In May, 1983 a Dr. Marvin H. Lipton performed an orthopedic evaluation of Young at Young's lawyer's request. He reported some thickening of the soft tissue and chronic synovitis (inflammation of synoval tissue which resembles ligaments and is located in joints such as the knee). In April, 1984, Young's treating physician reported that Young had experienced acute exacerbations of stasis ulceration in September of 1983 and March of 1984. In June, 1984, the Workers' Compensation Appeals Board (WCAB) found Young 100% disabled.

Young testified before the ALJ that he experienced excessive swelling of his left leg, pain in his left leg, ankle, knee, and hip, and was unable to walk more than a couple of blocks. He claimed to experience discomfort upon sitting more than 15 minutes and that he needed to elevate his leg for a half hour at a time four times a day. Young testified that his condition had been the same over the last five or six years.

Young drove about 100 miles per week to visit friends and his wife at work, to a coffee shop, the marina, and to visit his daughter. He also mowed the lawn, washed the dishes, vacuumed the house, and assisted with the grocery shopping.

The parties agreed at Young's hearing before the ALJ that Young was not working and suffered from a serious impairment, chronic venous insufficiency. They disagreed about whether Young was per se disabled under 20 C.F.R. Appendix 1, Subpart P, Sec. 4.12. This section reads in its entirety:

4.12 Chronic Venous Insufficiency of the lower extremity with incompetency or obstruction of the deep venous return, associated with superficial varicosities, extensive brawny edema, stasis dermatitis, and recurrent or persistent ulceration which has not healed following at least 3 months of prescribed medical or surgical therapy.

If Young's impairment either met or equaled the severity and durational requirements of Sec. 4.12, then he should have been held presumptively disabled without consideration of his age, education, and work experience. 20 C.F.R. Sec. 404.1520.

The ALJ held that Young's disability status could not be determined by his work status and medical evidence alone. Presumably what the ALJ meant was that Young cleared the first two hurdles required to obtain benefits (he was not working and he suffered from a severe impairment), but that he did not clear the third hurdle (presumptive disability under 20 C.F.R. Sec. 404.1520) because he failed to show that his disability met or equaled the severity required of any impairment on the List of Impairments. The ALJ thus held that Young was not per se disabled, and proceeded to the next step in the sequential process used to determine eligibility for permanent disability benefits.

The parties agreed concerning the fourth step of the eligibility process; Young could not perform his previous work. The ALJ thus proceeded to the fifth and final step in the eligibility determination process, which is whether a claimant is capable of performing a sufficient number of jobs available in substantial numbers in the national economy. The ALJ determined that the Medical-Vocational Guidelines, or "grids," did not apply because Young could not perform the full range of light and sedentary work. The ALJ used the grids as a "framework," however, for deciding Young's disability status.

A vocational expert testified at the hearing. He opined that assuming Young could sit no more than 30 minutes at a time, stand in one place for more than 10 minutes at a time, and would need to have the opportunity to walk, sit, and stand at his own discretion, Young could perform numerous jobs available in substantial numbers in the national economy. The ALJ denied Young's request for permanent disability benefits. The Appeals Council affirmed the ALJ decision, thereby making it the final decision of the Secretary.

On judicial review, the district court held that the ALJ had erred either by not finding Young presumptively disabled, or by ignoring the fact that once a claimant is presumptively disabled, an ALJ must award benefits. The district court, after reviewing the record, found that Young suffered from "chronic venous insufficiency which is a per se disability under Appendix 1, Subpart P, Sec. 4.12. Moreover, [both parties] agree that plaintiff has been diagnosed as such." The court concluded:

There is really no dispute about the plaintiff's condition or the medical diagnosis. All the treating physicians (and they are numerous) agree that plaintiff has chronic deep venous insufficiency of the lower extremity and its accompanying conditions. We are nonplussed as to what the ALJ could have been thinking in ignoring plaintiff's per se disability. Once a per se disability is established, the ALJ has no discretion; he must award benefits.

STANDARD OF REVIEW

We review the district court order of summary judgment de novo. Paulson v. Bowen, 836 F.2d 1249, 1250 (9th Cir.1988). In reviewing the ALJ's denial of disability benefits, we review the findings to make sure the ALJ applied the correct legal standards and review the entire record to insure that the findings are supported by substantial evidence. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986).

Substantial evidence means " 'more than a mere scintilla,' Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but 'less than a preponderance,' Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988)." McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir.1989). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427.

DISCUSSION

I.

The mere diagnosis of an impairment listed in 20 C.F.R. Appendix 1, Subpart P, Sec. 4.12 is not sufficient to sustain a finding of disability. While the Listing of Impairments does describe conditions that are generally considered severe enough to prevent a person from doing any gainful activity, an ALJ should not consider a claimant's "impairment to be one listed in Appendix 1...