Unpublished Disposition, 919 F.2d 144 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 144 (9th Cir. 1987)

No. 88-15609.

United States Court of Appeals, Ninth Circuit.

Before CHOY and FLETCHER, Circuit Judges, and FITZGERALD,***  District Judge.

MEMORANDUM**** 

OVERVIEW

Kennedy appeals the district court's decision affirming the ALJ's denial of social security disability insurance benefits. Kennedy raises three issues on appeal. First, he claims the ALJ erred in concluding that he did not have an impairment which meets or equals a listed impairment. Second, Kennedy argues that new evidence warrants remand. Third, Kennedy argues that the hypothetical question posed by the ALJ was inadequate and thus the ALJ's final decision was not based on substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kennedy was born on May 27, 1944. At the time of his hearing on January 7, 1987, he had the equivalent of a high school education and had past experience as an oil and gas well worker. Kennedy alleged an inability to work since October 16, 1985, due to low back injury, arthritis, chronic alcoholism, depression, high blood pressure, and decreased bilateral grip strength.

The medical records reveal that Kennedy underwent a right carpal tunnel release on December 12, 1984, and a left carpal tunnel release on January 17, 1985. He was hospitalized from December 17, 1984 until January 16, 1985, for alcoholism, at which time he participated in a treatment program.

On February 20, 1986 Kennedy underwent psychological testing which revealed high average to superior intelligence. Vocational testing indicated a strong preference for mechanical, technical, and skilled trade occupations. It was noted that Kennedy had become focused on recovery and improving his life. He had become religious, and his depressions were relatively short. The clinical psychologist, Clifford Lewis, concluded that Kennedy had learning potential well above the average range and had strong skills in numerical and verbal reasoning.

In a report dated January 6, 1986, Kennedy's treating physician, Dr. Fatta, reported that spinal x-rays indicated bilateral spondylosis at L3 or L4 and that Kennedy would most likely be precluded from work requiring a lot of bending or lifting more than twenty-five pounds.

On August 4, 1986, Kennedy was examined by Dr. Richard Barry at the request of the state agency. Kennedy complained of increasing low back pain and stated that he was being treated with nonsteroidal inflammatories. Examination revealed that Kennedy exhibited a normal gait with full range of motion of the upper extremities including the wrists and hands. Grip strength and dexterity of both hands were normal. There was no paravertebral muscle spasm or tenderness. There was full active range of motion of the lumbar spine with normal mobility. Neurologic examination was within normal limits. Dr. Barry's diagnosis was resolved lumbar strain with mild obesity. He believed that Kennedy would be limited in his ability to perform very heavy lifting on a prolonged, repetitive basis. Dr. Barry specifically noted that Kennedy retained the ability to manipulate objects with his hands. An x-ray of the lumbar spine dated July 30, 1986 demonstrated moderately advanced degenerative disc changes at L5-S1.

Kennedy was examined by Dr. Carl Drake, a psychiatrist, on August 28, 1986 at the request of the state agency. Kennedy told Dr. Drake that he was continuing with his Alcoholics Anonymous program and that he had not had any alcohol since October, 1985. Dr. Drake's diagnosis was (1) adjustment disorder with mixed emotional features; (2) history of alcohol dependence, passive-aggressive personality type; and (3) physical disorder, history of musculoskeletal disease, moderate psychosocial stressors.

At his hearing on January 7, 1987, Kennedy testified that he was fired from his last job due to chronic alcoholism. He stated that he was an alcoholic but had not had any alcohol in the past fifteen months. He stated that he could not handle physical tasks and was not prepared for other lines of work. He stated that he was going through vocational rehabilitation, and that he attended Alcoholics Anonymous meetings. He stated that he could drive his car for an hour and a half, at which time the pain in his neck and his back radiates down both legs. He reported doing his own grocery shopping. He stated that he had bilateral loss of grip strength due to carpal tunnel surgery on both hands. He also testified that he had high blood pressure when under stress and suffered from depression. He stated that he shared the household chores with a roommate, and did the housework every other month. These tasks included washing dishes, vacuuming, sweeping, doing the laundry, shopping, and cooking. He testified that he went to school during the week for eight hours per day on Monday, Wednesday, and Friday, and spent four to six hours in the lab on Tuesday, Thursday, and Saturday.

Gary Ambuehl, a vocational expert, also testified. In response to the ALJ's hypothetical questions, he identified entry level jobs of cashier and gate tender which existed in significant numbers in the national economy that Kennedy could perform.

In his decision dated April 25, 1987, the ALJ found that Kennedy did not have an impairment that either met or equalled the listed impairments. Taking into account the claimant's exertional limitations, he concluded that there were a significant number of sedentary jobs in the national economy that Kennedy could perform. He further concluded that Kennedy's nonexertional impairments did not preclude the jobs suggested by the vocational expert, and therefore denied benefits. Kennedy appealed and the district court affirmed. Kennedy now appeals the district court's grant of summary judgment in favor of the Secretary.

STANDARD OF REVIEW

This court reviews the district court's order of summary judgment de novo. Paulson v. Bowen, 836 F.2d 1249, 1250 (9th Cir. 1988). In reviewing the ALJ's denial of disability benefits, we review the findings to make sure the ALJ applied the correct legal standards and to ensure that the findings are supported by substantial evidence. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

Substantial evidence means " 'more than a mere scintilla,' Richardson v. Perales, 402 U.S. 389, 401 (1971) but 'less than a preponderance,' Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988)." McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938).

LISTED IMPAIRMENTS

Kennedy claims that his condition meets or equals the impairment listed in Appendix 1, Sec. 105(C), disorders of the spine, thereby making him presumptively disabled. That section provides:

C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:

1. Pain, muscle spasm, and significant limitation of motion in the spine; and

2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.

In the instant case, the ALJ's conclusion that Kennedy neither met nor equaled Sec. 105(C) was supported by substantial evidence, since there was no evidence that Kennedy sustained the requisite functional impairment to meet the listing.

The mere diagnosis of an impairment listed in Appendix 1 is not sufficient to sustain a finding of disability. Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). An ALJ should not consider a claimant's "impairment to be one listed in Appendix 1 solely because it has the diagnosis of a listed impairment. It must also have the finding shown in the Listing of that impairment." 20 C.F.R. Sec. 404.1525(d); Key, 754 F.2d at 1549-50. This means that a claimant can have a listed impairment without being presumptively disabled if the claimant's impairment is not severe enough, or if the claimant has not had it for a long enough time.

Thus, section 1.05(C) requires a vertebrogenic disorder accompanied by (1) pain, muscle spasm, and significant limitation of the motion in the spine, and (2) appropriate radicular distribution of significant motor loss with muscle weakness and sensory reflex loss. In order to "meet or equal" the listed impairment, then, Kennedy must show not only the existence of a vertebrogenic disorder, but also the requisite functional loss. This he has failed to do.

Although Kennedy complains of pain and an x-ray of the lumbar spine dated July 30, 1986, demonstrated moderately advanced degenerative disc changes at L5-S1, there is no evidence of muscle spasm, limitation of the motion of the spine, or significant motor loss with muscle weakness and sensory reflex loss. In August of 1986, Dr. Barry, the state agency physician, found that Kennedy exhibited a normal gait with full range of motion of the upper extremities including the wrists and hands. He found no paravertebral muscle spasm or tenderness. He found a full active range of motion of the lumbar spine with normal mobility. Kennedy's neurologic examination showed that he was within normal limits. Dr. Barry found that plaintiff had resolved lumbar strain with mild obesity and concluded merely that plaintiff would be limited in his ability to perform heavy lifting on a prolonged, repetitive basis.

Reports prepared on December 26, 1985 and January 6, 1986 by Dr. Fatta, Kennedy's treating physician, showed the following: that spinal x-rays indicated bilateral spondylosis at L3 or 4; that Kennedy performed straight leg raising with ease to 85? bilaterally; that there were no sensory or motor deficits, nor any pathologic reflexes; that on bending, Kennedy could get down about 8 inches off the floor; and that Kennedy suffered from some mild sacroiliac tenderness. Dr. Fatta concluded that Kennedy would most likely not be able to do work requiring a lot of bending and lifting more than twenty-five pounds. TR 178-90.

Thus, substantial evidence supports the ALJ's determination that Kennedy did not have any vertebrogenic disorder with sufficient severity to meet or equal the listing. Although plaintiff claimed pain, there was no evidence of muscle spasm or significant limitation of motion in the spine, as required under section 1.05(C) (1). Nor did either physician find that plaintiff had suffered significant motor loss with muscle weakness and sensory and reflex loss as required under section 1.05(C) (2). Furthermore, both physicians opined that the only restriction on Kennedy's ability to work was with regard to heavy lifting.

We also disagree with Kennedy's claim that the Secretary should have obtained additional neurologic consultation to clarify the condition of his spine. Although it is reversible error for an ALJ not to order a consultative exam when such an evaluation is necessary for him to make an informed decision, Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984), the ALJ was not unable to make an informed decision on the medical evidence before him, since the doctors' examinations indicated that plaintiff did not have the requisite functional impairment to meet the listing.

Kennedy further contends he meets or equals Sec. 12.09(D) of appendix 1, a substance addiction disorder resulting in a personality disorder under Sec. 12.08. Section 12.09(D) states:

12.09 Substance Addiction Disorder: Behavioral changes or physical changes associated with the regular use of substances that affect the central nervous system.

The required level of severity for these disorders is met when the requirements in any of the following are satisfied:

D. Personality disorders. Evaluate under 12.08.

Plaintiff failed to meet the burden of showing that his condition meets or equals Sec. 12.09(D). This circuit has adopted the view of the Fifth Circuit in holding that " [b]efore a finding of disability can be made, it must first be shown that the claimant is addicted to alcohol and does not have the ability to control its use voluntarily." Cooper v. Bowen, 815 F.2d 557, 560 (9th Cir. 1987) (quoting Ferguson v. Schweiker, 641 F.2d 243, 249 (5th Cir. 1981).

Although plaintiff has a history of alcoholism, he testified that he had not had any alcohol in the past 15 months. Dr. Drake's report indicated that he had been dry since October, 1985. Although Kennedy has been diagnosed as having a personality disorder, the record does not suggest that it was caused by his alcoholism and, in any event, the condition is not disabling. See discussion infra, pp. 14, 15. A mere history of alcoholism is not sufficient to establish disability. Since there is no evidence that Kennedy's alcoholic condition existed after the date of the onset of his alleged disability in October, 1985, Kennedy has not carried his burden of establishing that his condition meets section 12.09(D).

NEW EVIDENCE

Kennedy also contends that the district court should have remanded his case to the Secretary on the basis of new evidence submitted to the court. We review a district court's refusal to remand to the Secretary on the basis of extra-record evidence for abuse of discretion. Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990).

Remand is appropriate when a claimant can show that "there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding...." 42 U.S.C. § 405(g). The new evidence must be material and probative of his condition as it existed at the relevant time--at or before the disability hearing. See 42 U.S.C. § 416(i) (2) (G); Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511 (9th Cir. 1987). In order for evidence to be material, a plaintiff must demonstrate that "there is a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination had it been before him." Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1984) (quoting Dorsey v. Heckler, 702 F.2d 597, 604-605 (5th Cir. 1983)). A plaintiff may satisfy the good cause requirement by showing that a practical obstacle existed to obtaining the evidence previously. Booz, 734 F.2d at 1380.

A claimant, however, does not meet the good cause requirement simply by obtaining a more favorable report after his claim has been denied. Clem, 894 F.2d at 332 (citing Key, 754 F.2d at 1551). The claimant must establish good cause for not seeking the expert's opinion prior to the denial of his claim. Clem, 894 F.2d at 332.

Kennedy has submitted new evidence, consisting of two medical reports, which he claims mandates remand. Both of these reports postdate the ALJ's April 25, 1987 decision. The first report consists of a work activities form completed by Dr. Fatta on June 22, 1987, stating that Kennedy is limited to lifting only ten pounds, and can only stand a total of two hours in thirty-minute intervals. Dr. Fatta further noted limitations on reaching and handling. This report differs from his earlier report in which he stated that Kennedy was only limited with respect to lifting over 25 pounds and repetitive bending.

Kennedy also submitted a medical report dated December 8, 1987 by Dr. Keith Swanson. That report found that Kennedy had decreased grip strength and lateral epicondylitis of the right elbow. He also found that Kennedy had no residual problems from his carpal tunnel syndrome. In his opinion Kennedy's disability placed him in category "F" of the worker's compensation guidelines for work capacity. Dr. Swanson stated that Kennedy was therefore limited to "light" work and recommended vocational rehabilitation. This situation is analogous to that presented in both Clem and Key, in which the claimants attempted to present new medical reports supporting their positions. In Key, we declined to remand the case, since the claimant "offer [ed] no reason why he had not solicited this information from [the doctor] earlier." Key, 754 F.2d at 1551. In the present case, Kennedy, likewise, has offered no reason why this additional information could not have been submitted prior to the denial of his claim. Therefore, because Kennedy has not met the good cause requirement, we hold that the district court did not abuse its discretion in not remanding the case to the Secretary.

HYPOTHETICAL QUESTION

Kennedy complains of two errors with respect to the hypothetical question propounded to the vocational expert. First, Kennedy complains that the hypothetical failed to adequately reflect the degree of his loss of grip strength resulting from his carpal tunnel release. In support of this claim, Kennedy points to a report by Dr. Agee dated December 31, 1985 which noted that Kennedy "is still having problems dropping things with his hands." TR 163.

First, contrary to Kennedy's assertion, we find that the ALJ did in fact refer to Kennedy's claimed grip loss in his hypothetical to the vocational expert. He appears to have done so in spite of the fact that he found the claim to be unsubstantiated by any medical evidence. The ALJ's hypothetical stated: "On January 17, 1985, he had a left carpal tunnel release with residuals of decreased grip to about 50% of what it was before. And on December 12, 1984, he had a right carpal tunnel release which reduced that grip to about 70%." TR 70.

If anything, the ALJ was generous to Kennedy in crediting his claims since, as the ALJ noted elsewhere, there was substantial medical evidence indicating that Kennedy retained normal grip strength and dexterity. Dr. Richard Barry, in a report dated August 4, 1986, specifically noted that "the grip strength and dexterity of both hands are normal" and that Kennedy retained the ability to manipulate objects with his hands. TR 188. Dr. Agee in his report dated February 26, 1985 noted that Kennedy's hand looked good after the bilateral carpal tunnel surgery and it was expected that plaintiff could return to work in a week. TR 166. We conclude there was no error here.

Kennedy also claims that the ALJ erred in failing to instruct the vocational expert as to how his psychological impairments limited his ability to perform work activities. In his hypothetical to the vocational expert, the ALJ asked the expert to assume "an adjustment disorder with mixed emotional features and passive-aggressive personality type." Kennedy complains that the question framed was inadequate, since it failed to explain how his mental impairments might affect his functioning. See Gamer v. Secretary of Health and Human Services, 815 F.2d 1275 (9th Cir. 1987).

Hypothetical questions asked of vocational experts must set forth all of a claimant's impairments. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). However, an ALJ has discretion in framing hypothetical questions as long as they are supported by substantial medical evidence from the record. See Martinez, 807 F.2d at 774. Here, it is clear from the record that the ALJ had concluded that any mental impairments would not significantly affect Kennedy's functioning. The ALJ specifically noted that Kennedy "is participating in a rehabilitation program which makes substantial demands on his time and mind. He would, therefore, presumably be able to meet similar demands in a work setting, such as interact appropriately, meet attendance and productivity standards and tolerate stresses." TR 15. If this conclusion is supported by substantial evidence, then any failure by the ALJ to spell out the effects of the personality disorder diagnosis constitutes harmless error.

We find that this conclusion is supported by substantial evidence. Kennedy testified that he was participating in a demanding vocational rehabilitation program. He reported going to school during the week for eight hours per day on Monday, Wednesday, and Friday, and spending from four to six hours in the lab on Tuesday, Thursday, and Saturday. TR 56-57. An individual's activities are a legitimate consideration in evaluating allegations of disability. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Moreover, a psychological assessment by Dr. Clifford Lewis specifically noted that "his vocational planning will primarily depend on his physical limitations." TR 177. Finally, the report by Dr. Carl Drake in which Kennedy's personality disorder is diagnosed indicated no impairment in social or occupational functioning. Contrary to Kennedy's assertion, a personality disorder does not necessarily imply "impairment in social or occupational functioning" under the DSM-III; an adjustment disorder is also indicated "by symptoms that are in excess of a normal and expectable reaction to the stressor." DSM-III 167.

Given the ALJ's conclusion that Kennedy's mental impairments were not severe enough to affect his occupational functioning in any way, it was unnecessary for him to include Kennedy's personality disorder diagnosis in the hypothetical to the vocational expert at all. To the extent that he did, we find that the hypothetical question constituted, at most, harmless error. Booz, 734 F.2d at 1380.

AFFIRMED.

 *

Louis W. Sullivan, M.D., is substituted for his predecessor, Otis R. Bowen, M.D., as Secretary of Health and Human Services. Fed. R. App. P. 43(c) (1)

 **

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 ***

The Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation

 ****

This disposition is not suitable for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3