Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1983)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1289 (9th Cir. 1983)

Howard R. KING, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 87-1582.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 10, 1987.Decided July 13, 1988.

Before SCHROEDER, PREGERSON and BRUNETTI, Circuit Judges.


MEMORANDUM* 

Howard King appeals the district court's decision upholding the findings of the Administrative Law Judge, and refusing to remand for further administrative consideration, King's claim for disability insurance benefits.

King first challenges as unsupported the Administrative Law Judge's findings that he had no significant non-exertional impairments and therefore that he could perform sedentary work pursuant to application of the Medical-Vocational Guidelines. With the contention that the ALJ's findings lacked support in the record before him, we cannot agree. That record indisputably showed that King suffered from porphyria, a metabolic disorder with neurological effects that the applicant contends should have been regarded as a significant non-exertional impairment. However, the record before the ALJ showed only that there had been intermittent brief hospitalizations. The medical evidence upon which the ALJ relied were reports of two orthopedic specialists, Dr. Magan and Dr. Haldeman, and neither put any restrictions on the applicant's ability to sit for prolonged periods. Dr. Haldeman, in his report of November 24, 1981, stated that his disability precluded heavy work, but stated that he did not know "whether his longstanding disease of porphyria contributes to his present complaints, although this disease sometimes has neurologic manifestations."

Another orthopedic surgeon, Dr. Taylor, had concluded that due to low back pain and sciatic nerve irritation, the applicant would have extreme difficulty with prolonged sitting. This created a conflict that the ALJ had to resolve. When the evidence admits of more than one rational interpretation, this court must uphold the decision of the ALJ. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); see also Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971) (" [w]here there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made"). Based upon the record before the Administrative Law Judge, we cannot hold that his decision was arbitrary, capricious, or unsupported by the evidence.

However, King further contends that the district court should have remanded the matter to the Appeals Council for further consideration based upon new material evidence. The new evidence must be "material to and probative of [the applicant's] condition as it existed at the relevant time--at or before the disability hearing." Sanchez v. Secretary of HHS, 812 F.2d 509, 511 (9th Cir. 1987).

Section 405(g) provides for such a remand if the applicant shows "that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding...." 42 U.S.C. § 405(g). We have interpreted that provision liberally in view of the Social Security Act's remedial nature. Booz v. Secretary of HHS, 734 F.2d 1378, 1381 (9th Cir. 1984). We there held that to be material, an applicant needs to show that "there is a reasonable possibility that [the evidence] would have changed the outcome of the ... case." Id. The good cause requirement may be satisfied by the existence of practical obstacles to obtaining the evidence. Id.

Before the district court was additional evidence that the applicant's porphyria attacks were more disabling than the record before the ALJ reflected. There was also a report from a vocational expert expressing the opinion that there were no jobs that the applicant could perform due to his mental and physical limitations. Previously, the Appeals Council had denied review after considering evidence that was not in the record before the Administrative Law Judge. This evidence included reports of a neurologist, Dr. Mahmoudi, and Dr. Stoner, who was apparently a hematologist who had consulted with a neurologist. Dr. Stoner diagnosed peripheral neuropathy secondary to underlying porphyria and referred, in a letter of December 22, 1983, to several hospitalizations in the past year precipitated by certain episodes. He described the episodes as "sudden drops in blood pressure when he stands, causing him to collapse.... They have significantly impaired him in his ability to work and the uncertainties of suddenly collapsing. The cause of the peripheral neuropathy is his systemic disease, chronic intermittent porphyria." Although the Appeals Council may have been warranted in denying review at that point, the addition of the new evidence before the district court raises the reasonable possibility that had the ALJ had all of this evidence before him, he would have reached a different result.

Thus, from this evidence, which was not available at the time of the hearing, we conclude that there is a reasonable possibility that the ALJ would have concluded that the porphyria was a significant non-exertional limitation and would have used a different analysis. Accordingly, the materiality requirement for remand has been established. See Booz, 734 F.2d at 1380-81.

The final issue is whether there was good cause for the failure of the applicant to obtain the reports earlier and present them to the Administrative Law Judge. Here, as in Booz, the applicant is apparently a person of limited means. Although he was represented before the Administrative Law Judge by counsel, the difficulties of preparing for a full scale hearing with respect to the porphyria condition were great. The applicant was unable to appear at the time the case was originally scheduled because he was hospitalized. King understandably presented the documentation most readily at hand, which was orthopedic material prepared in connection with a worker's compensation claim, and which focused upon a back condition.

Under the principles announced in Booz, we conclude that the combined effect of the additional evidence presented to the Appeals Council and the district court might reasonably have affected the case's outcome, and that there was good cause for failing to introduce the evidence during the hearing before the ALJ.

REVERSED and REMANDED to the district court with instructions to remand to the Appeals Council, pursuant to 42 U.S.C. § 405(g), for consideration of additional evidence.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3