Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1985)

MEMORANDUM^** 

John Belloni appeals from the district court's order finding that substantial evidence supported the Secretary's decision that his wife was not entitled to disability insurance benefits. An administrative law judge found that Mrs. Belloni, who died on October 8, 1985 of cancer, was not disabled at any time before her insurance status expired on June 30, 1983. Mr. Belloni argues that the decision was not supported by substantial evidence, and that the ALJ should have further developed the record.

At the hearing on his wife's claim Mr. Belloni testified that his wife became disabled at the end of 1978 because of shoulder problems which rendered her unable to lift a hair dryer at work and hence unable to perform her prior work as a beautician. The letter from Dr. Cassell states that when he saw her in February, 1977 Mrs. Belloni had limited cervical motion and numbness and tingling in the left hand. He stated that Mrs. Belloni had maintained a very active life style and that she was placed on exercises to reduce stress. It was his opinion in February of 1977 that Mrs. Belloni should leave her work as a hair dresser and seek a "less traumatic occupation."

In July, 1980 Mrs. Belloni saw Dr. Terhune for stomach complaints and an upper respiratory infection. At that time Mrs. Belloni reported mild aching in the left shoulder aggravated by repetitive lifting with the left arm. Dr. Terhune reported that Mrs. Belloni had mild osteoarthritic changes and mild tendonitis of the left shoulder. Mrs. Belloni saw Dr. Terhune again in April of 1983 after she had spent six months in Arizona. At that time she reported that she had seen a chiropractor in Arizona after she developed some low back and hip discomfort while unloading her car. This examination by Dr. Terhune was sought for the purpose of determining whether Mrs. Belloni was properly denied insurance because of blood pressure problems and a spinal condition. The physical examination showed Mrs. Belloni to be in good health as of that time. Dr. Terhune noted that her extremities were "normal." This evidence amply supports the Secretary's finding that Mrs. Belloni was not disabled prior to June 30, 1983.

Mr. Belloni argues that there was not substantial evidence to support the Secretary's decision because the ALJ, although observing that there was a period during 1977 in which Mrs. Belloni was unable to perform her employment as a beautician because of her shoulder impairment, failed to cite any evidence of substantial improvement by Mrs. Belloni after 1977 as required by this court's decision in Patti v. Schweiker, 669 F.2d 582, 587 (9th Cir. 1982).

Patti v. Schweiker stands for the proposition that once the Secretary has determined that a claimant is disabled, there is a presumption of continuing disability, and benefits cannot be denied absent a showing of substantial improvement. This principle does not apply in this case since there was no prior determination by the Secretary that Mrs. Belloni was disabled in 1977. We have no more than the hearing officer's observation. The evidence showed that Mrs. Belloni suffered an impairment that affected her employment for some period during 1977. The record also indicates that Mrs. Belloni continued her employment through 1978.

Mr. Belloni also argues that the ALJ failed in his duty to develop the record fully and fairly and to ensure that the claimant's interests are considered. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). He argues that the ALJ's failure to inquire into Mrs. Belloni's use of her shoulder or medical treatment for her shoulder between 1978 and 1983 shows that the ALJ failed to develop the record fairly. Mr. Belloni also objects to the ALJ's failure to ask him any questions about Mrs. Belloni's back strain while removing items from her car in 1983, which was mentioned in the ALJ's decision as an indication that her shoulder problem was not severe in 1983. Mr. Belloni objects finally to the ALJ's failure to attempt to obtain other medical reports on Mrs. Belloni's shoulder condition from 1978 to 1983 as a failure to develop the record fairly.

The record reflects little more that the ALJ could have done. The ALJ inquired fully into the evidence and gave Mr. Belloni every opportunity to present his case. The ALJ asked whether there was any further medical evidence of Mrs. Belloni's condition prior to June 30, 1983, and was told that there was none. The ALJ's failure to inquire specifically into the 1983 back strain was not prejudicial to the claimant because it had little to do with any claimed disability. The ALJ mentioned the back strain incident as an indication that Mrs. Belloni's shoulder problems weren't severe in 1983, but there was ample other evidence in the medical reports to show that Mrs. Belloni's shoulder impairment was not disabling. It is not disputed that Mrs. Belloni was gainfully employed at the time of the alleged onset of the disabling shoulder injury in 1977.

AFFIRMED.