Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1985)

No. 87-4030.

United States Court of Appeals, Ninth Circuit.

Before TANG and CANBY, Circuit Judges, and ROBERT M. TAKASUGI^* , District Judge.

MEMORANDUM^** 

Plaintiff Lewis E. Spencer ("Spencer") appeals from the decision of the Honorable Justin L. Quackenbush, United States District Judge, Eastern District of Washington, which affirmed the final decision of defendant Otis R. Bowen, Secretary of Health and Human Services ("Secretary") that Spencer was not entitled to disability insurance benefits. This court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.

BACKGROUND

Spencer was born on April 5, 1926, is a college graduate and served twenty years in the Air Force and Marine Corps. After leaving the military, Spencer worked as a welfare examiner for the State of Washington from 1970 to 1973, managed a retail outlet for soft drinks from 1973 to 1975, and operated his own ceramics business from 1974 to 1980.

In April 1979, Spencer suffered a heart attack. In January 1980, Spencer underwent heart catheterization which resulted in a recommendation for surgery. In March 1980, Spencer underwent double coronary bypass surgery. He suffered a second heart attack in the recovery room following surgery. After his first heart attack, Spencer periodically went to the hospital with chest pains. In June 1980, Dr. Noland prescribed Nitro Paste for the angina. When the medication caused headaches, Darvocet-100 was prescribed to alleviate this side effect. In September 1980, Spencer had a treadmill test ordered by Dr. Noland. Thereafter, Spencer did not see Dr. Noland until 1985.

On April 13, 1982, it was Dr. Noland's opinion that Spencer was permanently disabled at a cardiac functional class II level. In January 1985, Dr. Noland's opinion was that Spencer's condition had worsened to a class IV level.

Spencer's insured status expired on June 30, 1984.

In July 1980, Spencer applied for disability benefits claiming an onset date of December 31, 1979. Six weeks after an initial award of benefits, his benefits were denied upon a routine review. Spencer requested a hearing, which was held in March 1982 before an Administrative Law Judge ("ALJ"). The ALJ issued a decision adverse to Spencer, and the Appeals Council denied his request for review. Spencer then, on January 3, 1983, commenced an action in the District Court which resulted in a remand to the Secretary and then to the ALJ for further proceedings.

A hearing was held before the ALJ on January 23, 1985 at the conclusion of which the ALJ expressed his inclination to grant a period of disability and his opinion that additional medical evidence was unnecessary. No further medical evidence was submitted, and the ALJ issued his Recommended Decision on February 25, 1985 finding Spencer disabled since December 1979. On August 16, 1985 the Appeals Council issued its final decision. It did not adopt the ALJ's Recommended Decision. Instead, the Appeals Council found that, although Spencer did have a severe impairment, it was not severe enough to meet the listings and did not prevent him from performing past relevant work--sedentary work, including work as a welfare examiner. District Judge Quackenbush affirmed the Secretary's decision and Spencer has now appealed.

DISCUSSION

The scope of review of disability determinations is limited and this court disturbs the Secretary's decision only if it is based on legal error or if the fact findings are not supported by substantial evidence. 42 U.S.C. § 405(g); Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987). Substantial evidence means "such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In assessing whether a finding is supported by substantial evidence, this court must consider the record as a whole. Howard, 782 F.2d at 1487 (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97 (1951)).

Spencer argues that (1) sufficient weight was not given to the testimony of his treating physician, Dr. Noland, (2) there is not substantial evidence to support the Appeals Council's rejection of the ALJ's credibility findings of pain, and (3) since there was an initial award of benefits, this case should be treated as a benefit termination case requiring evidence of medical improvement to justify the termination.

Aside from his own testimony of pain and symptoms, Spencer relies primarily on Dr. Noland's testimony to support his contention of disability. However, it was Dr. Noland's opinion that Spencer had a functional class II status in 1982. A class II status is consistent with a finding that a person can still perform sedentary work. A person in this class is partially, not totally, impaired. Although Dr. Noland believed Spencer's condition worsened by January 1985 to a class IV level, and although a class IV level would support a finding of total disability, Spencer did not produce medical evidence to cover the period between April 1982 and January 1985. As such, Spencer did not produce substantial medical evidence that he reached class IV before June 30, 1984, the expiration date of his insured status; and Dr. Noland's April 1982 opinion of class II level and January 1985 opinion of class IV level with no medical evidence covering the intervening period, is substantial evidence to support the Appeals Council's rejection of the ALJ's findings concerning medical evidence.

There is also substantial evidence to support the Appeals Council's finding of no disability with respect to Spencer's claim of headache pain.

At the March 1982 hearing before the ALJ, Spencer's testimony indicated pain of sufficient severity and duration to prompt the district court, in its remand order of March 9, 1984, to direct that greater consideration be given to Spencer's pain testimony. However, at the January 1985 hearing before the ALJ, Spencer's testimony contradicted his previous testimony and indicated that his headaches occurred mainly at night and could be so infrequent as to not occur for two months. Furthermore, although the medical evidence supports the fact that Spencer's medication causes headaches, Dr. Noland's report of June 1980 indicated that the headaches were "well controlled with Darvocet N-100."

The ALJ found disability and that Spencer was credible. The ALJ did not make a specific finding as to Spencer's claim of pain or Spencer's credibility with respect to his claim of pain. Even if he did, there is substantial evidence to support the Appeals Council's implicit rejection.

Spencer finally contends that, since there was an initial award of benefits, this case should be treated as a benefit termination case, and substantial evidence of medical improvement should be required pursuant to the 1984 Reform Act. However, under said Act, substantial evidence of medical improvement is not the only basis for termination of benefits. Another basis is "substantial evidence ... that a prior determination was in error." 42 U.S.C. § 423(f) (4).¹ 

The official letter advising Spencer of the revised determination stated that his claim had been re-evaluated, that the previous determination was not proper and had to be revised and that it was, therefore, determined that "you were not entitled to any disability benefits." As such, the termination, to be proper, must be supported by "substantial evidence ... that a prior determination was in error." Id.

The Secretary refers to 20 C.F.R. Sec. 404.988 (1987). However, said regulation only provides that a determination may be reopened by the Secretary within twelve months of the initial determination for any reason. Regardless of the authority for reopening, said regulation does not address the applicable standard for a termination decision after reopening. Furthermore, a regulation could not authorize action prohibited by statute.

Based on this court's above-discussed conclusions that there is substantial evidence to support the Appeals Council's rejection of the findings of the ALJ, and to support its determination that Spencer was not disabled through June 30, 1984, there is substantial evidence that the initial award of benefits to Spencer was in error.

Accordingly, the District Court's grant of summary judgment in favor of the Secretary is AFFIRMED.