Unpublished Disposition, 865 F.2d 264 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 865 F.2d 264 (9th Cir. 1987)

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

No. 88-5660.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1988.Decided Dec. 27, 1988.

Before JAMES R. BROWNING, SCHROEDER and NOONAN, Circuit Judges.


MEMORANDUM* 

Josephine Guerrero appeals from the district court's order granting summary judgment for the Secretary of Health and Human Services on her claim for disability insurance benefits.

Guerrero filed applications for disability insurance benefits alleging that she was disabled by a combination of physical and mental impairments. An administrative law judge found that Guerrero suffered from severe physical impairments that rendered her unable to return to her past employment as a restaurant worker, but that she was still able to perform simple tasks not requiring heavy physical exertion and thus was not disabled. In completing the psychiatric review technique assessment required for his decision, the ALJ found that there was insufficient evidence to assess the frequency of deficiencies in appellant's concentration resulting in failure to complete tasks in a timely manner.

The Appeals Council modified the ALJ's decision, and found that on the basis of the testimony of the two psychiatrists who evaluated the appellant there was sufficient evidence to establish that the appellant "often" experienced deficiencies in concentration resulting in failure to complete tasks in a timely manner. The Appeals Council also found, however, that she was not disabled. The Appeals Council issued a decision denying claimant's applications on January 2, 1987, which became the final decision of the Secretary.

The appellant filed an action in federal district court for review of the Secretary's decision. The appellant presented new evidence to the district court in the form of a letter from Dr. David Morgan, a vocational expert, stating that an individual whose mental impairments "often" prevented her from completing tasks in a timely manner would not be able to perform any work that exists in the national economy. The appellant asked that the case be remanded to the Secretary for reconsideration in light of this new evidence, or in the alternative that the district court reverse the Secretary's decision. The district court affirmed the Secretary's final decision and granted his motion for summary judgment in an order entered December 1, 1987. This appeal followed.

42 U.S.C. § 405(g) provides that the district court may remand a case to the Secretary for consideration of additional evidence upon a showing 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. We must decide whether the new evidence presented to the district court was material and required remand to the Secretary. Because we find that the new evidence was not material, we affirm.

To be material the new evidence must bear directly and substantially on the matter at issue, and there must be a reasonble possibility that the new evidence would have changed the outcome if it had been before the Secretary. Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986). Here, the new evidence is not material because the issue of the effect of the appellant's difficulty in concentrating on her ability to work was addressed by the vocational expert who testified at the administrative hearing in 1986. Dr. Jones testified that a hypothetical claimant with appellant's physical impairments in addition to a psychiatric condition limiting her to low stress work with no deadlines and only simple one- or two-step tasks would be able to work in entry level jobs with simple and repetitive tasks. While Dr. Jones' testimony did not focus specifically on the question of appellant's ability to work in spite of deficiencies in concentration that "often" prevented her from completing her work, it did assume a psychiatric condition that approximates the appellant's limitations. In contrast the opinion of Dr. Morgan is based on an isolated finding of the Appeals Council, the finding that the appellant "often" experienced an inability to concentrate, and on a definition of the word "often" that differs from the Secretary's use of the word.

The district court did not err in refusing to remand the case to the Secretary. The new evidence of Dr. Morgan was not material in that it did not present a reasonable possibility that the outcome of the decision would have been changed because Dr. Jones had already testified that poor concentration was not likely to affect the claimant's ability to perform the occupations he had identified.

Appellant also contends that the Secretary's decision was not supported by substantial evidence. Substantial evidence is "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)). The appellant was examined by two psychiatrists to determine the extent of her mental impairments. The evidence of Dr. Bayardo tended to show that appellant's concentration was not impaired to the point of disability; the evidence of Dr. Barrera tended to support a view that the appellant's impairment in concentration was substantial. The Secretary could have reasonably found, based on the evidence, that the appellant was not disabled. The Secretary's decision was supported by substantial evidence.

AFFIRMED.

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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