Unpublished Disposition, 855 F.2d 861 (9th Cir. 1987)

No. 87-2237.

United States Court of Appeals, Ninth Circuit.

Before: BOOCHEVER and REINHARDT,^**  Circuit Judges, and ALBERT LEE STEPHENS,^***  Jr., District Judge.

MEMORANDUM^**** 

Estella B. Hall appeals the district court's grant of summary judgment to the Secretary of Health and Human Services upholding the denial of disabled widow's insurance benefits under sections 202(e) and 223(d) of the Social Security Act, 42 U.S.C. §§ 402(e), 423(d) (Supp. III 1985). We conclude that the decision of the Administrative Law Judge (ALJ) that Hall has not sustained her burden of establishing disability is not erroneous based on the present record. In light of Hall's pro se status and the evidence that was presented, however, we believe that the ALJ had a duty to seek more specific medical findings regarding her impairments. The district court's judgment therefore is reversed and the case remanded with instructions to remand to the Secretary for additional proceedings.

* Hall applied for disabled widow's Social Security insurance benefits in June 1983. On June 27, 1984, ALJ John H. O'Donnell interviewed Hall, who proceeded pro se and claimed that she was unable to work because of back and hip pain, foot problems, hemorrhoids, and hypertension. The ALJ received more than 230 pages of medical records and other documents into evidence. Without attempting to restate the technical medical findings, the evidence presented to the ALJ may be summarized as follows:

(1) Hall testified that she cannot sit for more than ninety minutes, can walk approximately one block at a time, and can stand for less than one hour.

(2) In February 1981, Hall slipped on ice and was taken to a hospital emergency room. X-rays taken by Dr. Wayne E. Garrett disclosed moderate degenerative changes in the cervical spine and degenerative arthritis in the lumbar spine, slightly increased since 1975.

(3) In July 1981, Dr. Jay M. Beams reported that Hall was being treated for (a) heart disease; (b) arthritis of the spine; (c) hypertension; (d) diabetes; (e) hernia; (f) elevated triglycerides; (g) obesity; and (h) numbness of the right leg. He added that Hall was "permanently disabled for gainful employment," but did not include any clinical findings.

(4) In August 1981, Dr. Michael J. Newmark stated that Hall had coronary artery disease and was "at least partially disabled from a cardiac standpoint."

(5) In January 1982, Dr. T.C. Harper, a consultant appointed by the Secretary, examined Hall and took x-rays of her spine. He stated that her spine showed normal curvatures, was well preserved without evidence of injury or disease, had no congenital abnormalities, and overall was "normal." He also noted that all joints and foot motions were normal. Dr. Harper concluded: "In essence this is a white housewife who has a number of vague aches and pains without any objective findings."

(6) In January 1982, Dr. Frank M. Davis reported that foot and leg pain had "made it very difficult" for Hall to pursue any gainful employment and that he had "no reason to doubt her when she relates her difficulties in successfully completing an 8-hour shift."

(7) In August 1982, Dr. James E. Dixon, a chiropractor, reported that Hall suffered from numerous back ailments, including (a) relative 45 percent loss of cervical curve; (b) hypertrophic degenerative joint disease; (c) nodular fibromyositis of various muscles; and (d) lumbosacral sprain. No clinical findings were included.

(8) In May 1983, Dr. L.J. Sandars reported that chest x-rays likely indicated some "scarring and/or disc atelectasis" in Hall's left lung.

(9) In March 1984, Dr. C. Craig Karrasch summarized Hall's numerous foot problems. He performed surgery on her left foot in May 1983, and stated that Hall made an appropriate recovery. Six weeks after the surgery, however, Hall fell and fractured the heel bone of the same foot. Surgery was considered, but a conservative course was taken and Hall made a good recovery. Nevertheless, Dr. Karrasch concluded that Hall might be partially disabled and that she walked with a slight limp, was "unable to bear weight on her left heel for any extended period of time," and was precluded from "numerous types of occupations which would require weight-bearing and standing on her feet during the day."

(10) Shortly before her foot surgery in May 1983, Hall was given a physical examination by Dr. Philip Landis. In a patient history report, Landis stated that Hall denied having a history of heart disease or chest pain or suffering from "significant pain or limitation of motion about any joint." No clinical findings were made on these points.

(11) In August 1983, Dr. Michael E. Scott noted in a patient history report that Hall suffered from (a) headaches; (b) backaches; (c) numbness of the right leg and thigh; (d) neck pain; and (e) burning sensation in the left foot. No clinical findings were made.

In an opinion issued January 11, 1985, the ALJ denied Hall's application for benefits. Hall retained counsel and sought administrative review, which was denied in July 1985. She then filed an action for judicial review in the Eastern District of California pursuant to 42 U.S.C. § 405(g) (1982). The case was assigned to a magistrate, who issued proposed findings and a recommendation on the parties' cross-motions for summary judgment and Hall's motion for remand. After considering objections, District Judge Edward J. Garcia adopted the findings and recommendation and granted summary judgment to the Secretary on March 31, 1987.

II

A denial of Social Security benefits will be set aside only if the Secretary's findings "are based upon legal error or are not supported by substantial evidence in the record as a whole." Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Substantial evidence means " 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

As a claimant, Hall has the burden of proving that she is disabled. Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir. 1986) (per curiam). A widow is not "under a disability" unless "her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity." 42 U.S.C. § 423(d) (2) (B). "Disability" may be established under 20 C.F.R. Secs. 404.1577-78 (1986) if the widow's impairment is either included in or is medically equivalent to those listed in Appendix 1 to the regulations, and the impairment can be expected to result in death or has lasted or can be expected to last for a continuous period of at least twelve months.

Hall does not seriously contend on appeal that she has proven an impairment included in or medically equivalent to those listed in Appendix sections 1.03 (arthritis of a major weight-bearing joint), 1.05 (spine disorder), 4.01 (cardiovascular impairment), or 9.08 (diabetes mellitus with other disorders). She instead argues that Dr. Harper's report did not constitute "substantial evidence" and that the ALJ failed to adequately develop the record.

As to the first point, it is clear that Dr. Harper's finding that Hall's back was "normal" directly conflicts with statements by Drs. Garrett, Beams, and Dixon. Our inquiry is not, however, whether Hall's back is "normal." Hall carries the greater burden of showing, in a sense, that her back condition is so "abnormal" as to render her disabled under the regulations. Based on the evidence in the present record, the ALJ did not err in concluding that Hall has not met that burden.

Dr. Harper's report, while not conclusive, supports a finding of no disability. Dr. Garrett's report does not specify whether any disability resulted from Hall's spinal disorder or make any findings relating to section 1.05. While Dr. Beams stated that Hall was "permanently disabled," his letter did not include clinical findings. We stated in Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985), that the "mere diagnosis of an impairment listed in Appendix 1 is not sufficient to sustain a finding of disability." See 20 C.F.R. Sec. 404.1525(d) (1986). Dr. Dixon's report similarly lacked clinical findings, and his testimony as a chiropractor is entitled to less weight under 20 C.F.R. Sec. 404.1513 (1986).

Hall's second claim, that the ALJ failed to develop the record properly, is substantial and requires remanding this case for additional fact-finding by the ALJ pursuant to 42 U.S.C. § 405(g). Hall contends that the evidence presented, coupled with her pro se status, imposed a duty on the ALJ to request specific medical information regarding her ability to pursue gainful employment. We agree.

In Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983), the court stated: "In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Moreover, when a claimant appears pro se, "the ALJ must 'scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.' " Key, 754 F.2d at 1551 (quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)).

The record was not properly developed in this case. While conceding that Hall has serious foot problems and that probative clinical evidence was presented to the ALJ, the Secretary stresses that neither Dr. Karrasch nor Dr. Davis stated that Hall was totally disabled in his report or made clinical findings specifically tailored to the regulations and listing of impairments. Considering the claimant, her evidence, and the showing required under Appendix 1.03, a scrupulous and conscientious probe into the relevant facts should have included a request for specific findings by Hall's doctors or the appointment of a consultant pursuant to 20 C.F.R. Sec. 404.1517 (1986).

Although not directly on point, Cruz v. Schweiker, 645 F.2d 812 (9th Cir. 1981), supports Hall's request for a remand. There, we concluded that the record was not fully developed because the ALJ failed to: (1) apprise the claimant of legal aid available, (2) probe for more facts regarding a treating doctor's diagnosis, and (3) explain "the type of showing which the applicant had to make in order to prove his case successfully." Id. at 814. Although ALJ O'Donnell specifically asked Hall whether she needed more time to seek legal aid before commencing the administrative hearing, the latter two problems are involved here.

A remand is especially appropriate in light of the evidence submitted regarding Hall's back injury. While she failed to prove disability as defined in the regulations, serious questions nevertheless were raised by the conflicting findings of Drs. Harper, Garrett, Beams, and Dixon. The extent of the disability caused by Hall's back condition is crucial in light of the testimony regarding her foot problems. The Secretary comes close to conceding that Hall is unable to work while standing up. Sedentary work likewise could be precluded if Hall's alleged back impairment is medically verified.

Our remand is limited to evidence regarding Hall's foot and back conditions. Her claims regarding cardiovascular impairment and diabetes mellitus were not raised in either the administrative proceedings or the district court.

III

Based on the present record, the ALJ's conclusion that Hall has not sustained her burden of proving entitlement to widow's Social Security insurance benefits was not erroneous. We conclude, however, that Hall's pro se status and the evidence that was presented imposed a duty on the ALJ to request more specific medical findings in order to develop the record fully and fairly.

REVERSED and REMANDED to the district court with instructions to remand to the Secretary for additional proceedings.