Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1990)

MEMORANDUM^**

Deborah A. Byrne appeals the district court's judgment affirming the decision of the Secretary of Health and Human Services denying Byrne disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401, based on blindness. Byrne contends that the district court erred by upholding the Secretary's decision that Byrne is not blind within the meaning of 42 U.S.C. § 416(i) (1) (B).

BACKGROUND

The relevant facts are not in dispute. Byrne, a thirty-three year old massage therapist, has a history of progressively deteriorating vision. She has degenerative cone-rod retinal dystrophy, which had caused a complete loss of all but a one or two degree pinpoint of sight in the central 20 degrees of her visual field by 1987.

The administrative law judge found that Byrne had continued to engage in substantial gainful activity since her disability onset date, and that the only mechanism under the regulations through which she might receive benefits was in being found statutorily blind. The statute defines blindness as follows:

[T]he term "blindness" means central visual acuity of 20/200 or less in the better eye with the use of a correcting lens. An eye which is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees shall be considered for purposes of this paragraph as having a central visual acuity of 20/200 or less.

42 U.S.C. § 416(i) (1) (B) (Supp. IV 1986).

The ALJ concluded that the evidence proved that Byrne was not by definition legally blind. At the time of the administrative hearing, Byrne had difficulty reading most print and could not identify colors. While she had visual acuity of 20/70± in her right eye and 20/80± in her left eye, she achieved these scores by viewing portions of each letter and slowly deducing which letter it was.

Relying upon ophthalmologist Dr. Richard Weleber's conclusion that Byrne, while functionally blind, did not come within the statutory definition of "legal blindness," and various concurring medical opinions, the ALJ found Byrne ineligible for benefits. The Appeals Council upheld the ALJ's decision, and the district court affirmed, finding that the result was "compelled by the statute."

DISCUSSION

The Secretary's decision to deny benefits is overturned only upon a showing that "it is not supported by substantial evidence or it is based on legal error." Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)). We review the district court's conclusion de novo. Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 1278 (9th Cir. 1987).

The only issue in this case is whether the Secretary's application of the statutory definition of blindness under 42 U.S.C. § 416(i) (1) (B) was in error. While Byrne suggests that the Secretary's application of the statute does not conform to congressional intent, she also concedes that this issue has already been resolved by this court in Adams v. Bowen, 872 F.2d 926 (9th Cir. 1989).

The Adams holding is dispositive of this case. The court found that the legislative history of the Social Security Amendments of 1967, including section 416(i) (1) (B) suggest that Congress intended a narrow reading of the statute's unambiguous language. Id. at 928. In explanation, the court stated that "there is no indication that the equivalency requirement urged by Adams was intended or even contemplated by Congress." Id. at 929.

This court in Adams found that, while the Secretary had not issued an interpretative regulation on this statute, his interpretation was clearly demonstrated by his position in that litigation, and section 26005.001 of the Secretary's Program Operations Manual System dealing with statutory blindness. Therefore, the court held that a strict application of the statutory definition was required. Id. The Adams court held that the claimant, while functionally blind, did not come within the purview of the certain and exact rule. Id.

Accordingly, we find that the Secretary's decision is supported by substantial evidence and is based on the application of a correct legal standard.

AFFIRMED.