Unpublished Disposition, 852 F.2d 572 (9th Cir. 1983)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1983)

Haig SINCLAIR, Plaintiff/Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant/Appellee.

No. 86-1805.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 1988.Decided June 29, 1988.

On Appeal from the United States District Court for the Northern District of California, William A. Ingram, District Judge, Presiding.

Before SKOPIL, BEEZER,*  Circuit Judges and JAMES M. BURNS,**  District Judge.

MEMORANDUM*** 

Haig Sinclair appeals pro se the Secretary's denial of disability benefits and supplemental security income ("SSI"). We conclude that there is substantial evidence in the record to support the Secretary's determination that Sinclair was not disabled on or before June 30, 1972, the date his eligibility for disability benefits expired. We nevertheless remand to allow the Administrative Law Judge ("ALJ") to consider whether the results of a CT scan, unavailable at the time of the ALJ's hearing, support Sinclair's application for SSI benefits.1 

DISCUSSION

To qualify for disability benefits, a claimant must show (1) an inability to engage in any substantial gainful activity because of a medically determinable physical or mental impairment, and (2) that this impairment is expected either to result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d) (1) (A), 1382c(a) (3) (A) (1982); Gamer v. Secretary, 815 F.2d 1275, 1278 (9th Cir. 1987). In such cases " [t]he claimant has the burden of proving disability...." Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). "A claimant makes a prima facie case of disability by establishing that his impairments prevent him from doing his previous job." Gamer, 815 F.2d at 1278.

Sinclair disagrees with the ALJ's finding that Sinclair was capable of performing past relevant work. He argues that his brief jobs prior to 1972 were unsuccessful work attempts under 42 U.S.C. § 422(c) (1982). The medical record shows, however, that Sinclair was physically capable of working during the relevant period. In fact, Dr. Cox and Dr. Javer encouraged him to go into sales work. There is also evidence that Sinclair left his auto sales and polishing job because he was dissatisfied with the work rather than because of his injuries.

Sinclair also contends that his minimal earnings indicate that his jobs were unsuccessful work attempts. While negligible wages ordinarily show that a claimant has not engaged in substantial gainful activity, see 20 C.F.R. Secs. 404.1574(b) (3); 416.974(b) (3) (1987), wage guidelines are not conclusive evidence concerning a claimant's work activity. See id. Secs. 404.1574(a) (1); 416.974(a) (1). We conclude that substantial evidence supports the ALJ's determination that Sinclair was not disabled before his eligibility for disability benefits expired.

Although we agree with the ALJ that Sinclair was not disabled before June 30, 1972, we must also determine whether evidence of Sinclair's medical history since that date supports his application for SSI. At the administrative hearing Sinclair complained of back problems, difficulty with his right knee, arthritis, and diabetes. Before the district court and on appeal he presents additional evidence concerning the back ailment, as well as evidence that he suffers from alcoholism.

In denying Sinclair's application, the ALJ rejected the opinions of Sinclair's treating physicians, Drs. Ilano and Goodman, in favor of the opinion of Dr. De Orio. Although he did summarize Dr. Goodman's report, the ALJ discounted Dr. Goodman's prognosis because "the doctor had not completed all the lab diagnostic testing that he desired at the time the report was prepared; for example, he later performed a spinal CT scan." The CT scan was performed on July 19, 1983, more than a month before the ALJ rendered his decision. The CT scan appears to confirm Dr. Goodman's opinion, lending support to his prognosis of disability. If the ALJ received the CT scan report before making his decision, he did not give legitimate reasons for disregarding the treating physician's opinion, necessitating a remand. See Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986) (per curiam).

Assuming the ALJ did not have the CT scan report to consider, the report is new evidence. We will remand when new evidence is material and there is good cause for the failure to incorporate the evidence into the record in the prior proceeding. 42 U.S.C. § 405(g) (1982). The CT scan report is material because it bears directly and substantially on Sinclair's disability and would possibly change the outcome of the case. See Booz v. Secretary, 734 F.2d 1378, 1380 (9th Cir. 1984). There is also good cause for not including the report if it was unavailable before the hearing. See id.

On remand, the ALJ should consider whether the CT scan provides sufficient clinical support for Dr. Goodman's medical opinion. In addition, the ALJ may need to inquire whether there is evidence of Sinclair's alcohol abuse. See Cooper v. Bowen, 815 F.2d 557, 560 (9th Cir. 1987). Finally, on remand the ALJ should specifically consider Sinclair's illnesses in combination. See Beecher v. Heckler, 756 F.2d 693, 694 (9th Cir. 1985). While the ALJ speaks of a "combination of impairments" with regard to specific listed impairments in the social security regulations, it is unclear whether he considered the combined impact of Sinclair's impairments throughout the disability determination process. See 20 C.F.R. Sec. 404.1523 (1987).

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


 *

Judge Anderson, an original member of the panel, died shortly after argument in this matter. Judge Beezer was randomly selected to replace him

 **

The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The Secretary argues that Sinclair's motion to proceed in forma pauperis and for court appointed counsel does not constitute a valid notice of appeal. We have construed, however, a motion to proceed in forma pauperis as a notice of appeal when it (1) demonstrates an intent to appeal, (2) was served upon the defendants, and (3) was timely filed. Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986). Sinclair's motion meets all three requirements. Therefore his motion constitutes a valid notice of appeal, and we have jurisdiction over this matter. See id