Unpublished Disposition, 921 F.2d 280 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 280 (9th Cir. 1989)

Jearline NORWOOD, Plaintiff-Appellantv.Louis W. SULLIVAN, Secretary of Health and Human Services,Defendant-Appellee

No. 89-56166.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1990.Decided Dec. 26, 1990.

Before WALLACE, ALARCON and POOLE, Circuit Judges.


MEMORANDUM* 

Jearline Norwood appeals from the denial of her motion for reversal and remand of the final decision of the Secretary of Health and Human Services (Secretary) of her application for disability insurance benefits under 42 U.S.C. § 405(g) and the district court's order granting the Secretary's motion for a summary judgment. Norwood contends that substantial evidence does not support the Secretary's finding that her physical and mental impairments did not entitle her to disability benefits prior to the expiration of her insurance coverage on December 31, 1985.

* Norwood contends that the medical evidence overwhelmingly demonstrates that she was disabled between June 25, 1984 and December 31, 1985, as a result of her physical impairments and major mental depression. We review de novo a district court's order upholding the Secretary's denial of disability benefits. Young v. Heckler, 803 F.2d 963, 966 (9th Cir. 1986). We must affirm the Secretary's findings if they are supported by substantial evidence and the correct legal standards were applied. Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987).

A claimant is entitled to disability benefits if he or she is unable to "engage in any substantial gainful activity by reasons of any medically determinable physical or mental impairment" prior to the expiration of his or her insurance. 42 U.S.C. §§ 416(i) and 423(d) (1) (A).

The initial burden of proving that the claimant's physical or mental impairments, or a combination thereof, prevent him or her from engaging in his or her previous occupation is on the claimant. The burden of going forward then shifts to the Secretary who must present evidence that demonstrates that, notwithstanding his or her impairments, "the claimant can engage in other types of substantial gainful work which exists in the national economy." Gonzalez v. Secretary of Health and Human Services, 784 F.2d 1417, 1419 (9th Cir. 1986).

Norwood filed separate applications for disability insurance benefits on May 9, 1983, November 8, 1983, and May 8, 1984. Each was denied. The third application was denied on June 25, 1984. No appeal was taken from the denial of these applications.

On September 4, 1984, Norwood filed a fourth application. This application was denied, after a hearing before an administrative law judge (ALJ), on August 19, 1987. Norwood was represented by her present counsel, Robert Hoad, at this proceeding. The ALJ concluded that " [T]he principle of administrative finality applies, as does Res Judicata." The ALJ found that Norwood had failed to establish that she became unable to perform her previous work between June 25, 1984 and December 31, 1985 when her disability insurance expired.

Mr. Hoad requested review of the ALJ's decision by the Appeals Council. In his memorandum, filed in support of Norwood's request for review, Mr. Hoad did not challenge the reliance by the ALJ on the joint principles of administrative finality and res judicata. Instead, he requested that the Appeals Council review the reports of Dr. Richard Friedman, Dr. Arthur Cummins, and Dr. Lloyd Droske. The Appeals Council concluded that there was no basis for granting review of the ALJ's decision. In its order, the Appeals Council made the following statement:

The claimant had previously filed an application for disability insurance benefits on May 9, 1983. That application was denied at the initial state, the reconsideration stage, and at the hearing level on June 25, 1984. No further appeal was taken on that Administrative Law Judge denial issued on June 25, 1984. The principle of administrative finality applies, as does Res Judicata.

The Appeals Council's order became the final decision of the Secretary on Norwood's fourth application.

Mr. Hoad filed a complaint for judicial review on Norwood's behalf in the district court. Mr. Hoad listed five grounds for reversal. He did not request reversal on the ground that the ALJ or the Appeals Council applied administrative finality and res judicata in denying disability benefits.

In his answer to the complaint, filed on August 30, 1988, the Secretary moved to dismiss "any claim for benefits prior to June 25, 1984 because the court is without jurisdiction over the subject matter on the grounds of res judicata."

Thereafter, on May 12, 1989, Mr. Hoad filed a motion for reversal and remand. In his memorandum in support of this motion, Mr. Hoad did not refer to nor challenge the ALJ's reliance on administrative finality or res judicata.

The Secretary filed a cross-motion for summary judgment on June 22, 1989. In the memorandum in support of the cross-motion the Secretary noted that " [O]n August 19, 1987, the ALJ issued a decision, applying res judicata to the prior determinations that plaintiff was not disabled prior to June 25, 1984."

The hearing on the cross-motion for summary judgment was conducted on August 7, 1989. No argument was made, nor was any evidence presented to the district court, that the doctrine of res judicata was inequitably applied in this matter because of Norwood's mental impairments and lack of education.

The district court granted the Secretary's cross-motion for summary judgment. Norwood timely appeals.

II

Norwood argues that the uncontradicted medical evidence established that she cannot perform any work because she is mentally impaired due to severe depression and she is physically impaired due to osteoarthritis of the lower spine, hypertension, heart disease, high blood pressure, enlarged thyroid, obesity, chronic headaches, lower back pain, as well as noncardiac chest pain. The ALJ found that the combination of these impairments did not prevent her from performing her former occupation as a hotel maid.

As noted above, the ALJ relied upon the doctrine of administrative finality and res judicata. Under this principle, if no appeal is taken from the denial of a prior disability claim, it is presumed that a claimant is not disabled. To obtain disability benefits, the claimant must overcome this presumption by presenting new evidence demonstrating that he or she is not capable of performing his or her previous occupation because of a worsening of his or her impairments since the prior adjudication. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985).

No issue was raised by Mr. Hoad in his brief before this court concerning the applicability of the doctrine of administrative finality and res judicata to Norwood's claim of physical or mental impairments prior to June 25, 1984. During oral argument, however, Mr. Hoad argued for the first time at any stage of these proceedings that "the doctrine of res judicata was inequitably applied here." Mr. Hoad referred this court to Thompson v. Schweiker, 665 F.2d 936 (9th Cir. 1982). In Thompson we held that " [w]here the record is patently inadequate to support the findings the ALJ made, application of res judicata is tantamount to a denial of due process." Id. at 941.

We have carefully examined the ALJ's findings concerning Norwood's condition between June 25, 1984 and December 31, 1985. The record is not patently inadequate to support the ALJ's findings. Substantial evidence, including the report of a treating physician, supports the conclusion that she was suffering from no more than a mild depression during the dates covered by her most recent application. No showing has been made that the hearing on Norwood's third application was inadequate in any respect or that Norwood's educational level or physical and mental impairments interfered with the ALJ's ability "to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Thompson v. Schweiker, 665 F.2d at 941 (quoting Gold v. Secretary of HEW, 463 F.2d 38, 43 (2nd Cir. 1972)). No inequity has been demonstrated in the application of administrative finality and res judicata in this matter. Accordingly, we must examine the record to determine whether the record contains substantial evidence that Norwood became legally disabled as a result of changed circumstances after June 25, 1984 and prior to December 31, 1985.

Norwood argues that Dr. Lloyd Droske's report of the medical examination he performed on July 18, 1986, established that she had a legally cognizable disability as a result of physical and mental impairment after June 25, 1984 and prior to December 25, 1985. Dr. Droske concluded that Norwood's mental condition had deteriorated since February 13, 1984, when she was examined by Dr. James Stoddart. Dr. Droske reported that Norwood was suffering from severe, major depression that prevented her from performing any occupation.

Two physicians examined Norwood between June 25, 1984 and December 31, 1985. Norwood was examined by Dr. Richard Friedman, an internist, on December 21, 1984, at the request of the Social Security Administration. Dr. Friedman, concluded that Norwood was suffering from chronic depression.

On August 29, 1985, Norwood went to Dr. Francis Tanaka for treatment of dizzy spells, headaches, and bad nerves. Dr. Tanaka diagnosed Norwood as suffering from mild depression. He prescribed Elavil for that condition. Norwood failed to return for a follow-up appointment. Dr. Tanaka is the only physician who treated Norwood for depression during the period between July 25, 1984 and December 31, 1985. His report does not demonstrate a change of circumstances showing "greater disability." Taylor v. Heckler, 765 F.2d at 875.

Dr. Tanaka's report does not contain substantial evidence of any deterioration in Norwood's mental impairment since she was diagnosed as suffering from depression by Dr. Stoddart prior to June 25, 1984. As noted above, Dr. Droske examined Norwood after December 31, 1985. Dr. Droske's opinion that Norwood suffered from chronic, major depression after June 25, 1984 and prior to December 31, 1985, conflicts with the diagnosis of Dr. Tanaka, Norwood's treating physician, that she was suffering from mild depression at the time of his examination on August 29, 1985. The law of this circuit requires that the Secretary give great weight to the opinion of a treating physician. Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1983).

Norwood was also examined on July 2, 1986, by Dr. Arthur Cummins at the request of the Social Security Administration. Norwood told Dr. Cummins that her mental impairment was similar to her condition when she was examined by Stoddart on February 13, 1984. Dr. Stoddart's report was considered by the Secretary in rejecting Norwood's third disability claim. Dr. Cummins' examination does not demonstrate that Norwood's mental impairment had deteriorated after July 25, 1984. Instead, it corroborated Dr. Tanaka's findings that Norwood suffered from a mild depression.

The evidence considered by the ALJ, including the presumption that her physical and mental impairments continued unchanged after July 25, 1984, is in conflict. The ALJ was entitled to discount Dr. Droske's opinion concerning what Norwood's mental condition was more than 6 months before the date of his examination, and to give greater credit to her treating physician's contemporary diagnosis. See Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989) (court may reject a physician's "conjecture" that a disabled condition began more than 2 years prior to his examination and adopt the report of another doctor who found no disability impairment on the date of his examination). Substantial evidence supports the Secretary's determination that Norwood was not disabled as the result of mental impairment between June 25, 1984 and December 31, 1985.

III

Norwood correctly asserts that the Secretary was required to consider the combined impact of all physical and mental impairments. Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988). Norwood failed to produce substantial medical evidence that the combination of her physical and mental impairments was greater after the denial of her third application for disability benefits.

Norwood's testimony that she is overweight, suffers from fatigue, daily headaches, low back pain, arthritic pain, swelling ankles, loss of appetite, and has difficulty sleeping is similar to the complaints she made prior to June 25, 1984. The medical evidence did not demonstrate any change in her physical impairments. The Secretary is not compelled to accept a claimant's self serving, unsubstantiated testimony regarding alleged impairments. Bates v. Sullivan, 894 F.2d 1059, 1062 (9th Cir. 1990).

While the record demonstrates that Norwood failed to rebut the presumption that the combination of her impairments was not disabling between June 25, 1984 and 1985, the ALJ erred in concluding that Norwood had the capacity to perform her previous work as a hotel maid. In its June 25, 1984 decision, the Social Security Administration determined that Norwood could not perform her previous work as a hotel maid. Thus, the ALJ's conclusion is inconsistent with the prior determination of the Social Security Administration.

Both parties suggest a remand is unnecessary in this case. Norwood argues that we should determine that she is disabled and order the Secretary to commence paying benefits without a remand. We reject this suggestion because of our conclusion that Norwood has failed in her burden of proving that her physical and mental condition has worsened since June 25, 1984.

The government, while forthrightly conceding that the Secretary has erred in determining that Norwood could not have returned to her former occupation as a hotel maid between June 25, 1984 and December 31, 1985, argues that this error was harmless because Norwood failed to rebut the presumption that her physical and mental condition remained the same after June 25, 1984. We disagree.

The principle of administrative finality and res judicata must cut both ways in this matter. The Secretary's finding that Norwood could not perform her previous work as a hotel maid is binding on the Secretary. Accordingly, the Secretary had the burden of presenting evidence that the claimant could engage in other types of substantial gainful employment existing in the national economy.

Accordingly, we must vacate the order granting summary judgment with directions that this matter be remanded to the Secretary for further proceedings to determine whether there was work in the national economy for someone with Norwood's physical and mental impairments between June 25, 1984 and December 31, 1985.

AFFIRMED in part, VACATED in part, with directions.

 *

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