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876 F2d 896 Jones v. R Bowen

876 F.2d 896

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Wesley P. JONES, Plaintiff-Appellant,
v.
Otis R. BOWEN, Secretary of Health and Human Services,
Defendant-Appellee.

No. 88-2496.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 1989.
Decided June 6, 1989.

Before WILLIAM A. NORRIS, BEEZER and BRUNETTI, Circuit Judges.

1

MEMORANDUM*

2

This appeal arises from a claim of social security disability benefits by Wesley P. Jones. Jones' claim was denied by the Secretary of Health and Human Services. The district court partially affirmed and partially reversed the Secretary's decision. Jones has appealed that part of the district court's judgment that affirmed the Secretary. We reverse and remand to the Secretary for further proceedings.

FACTS

3

Jones was employed as a truck driver. In May of 1979, Jones fell through a trailer onto a concrete deck ten feet below, resulting in an injury diagnosed as spondylolisthesis of L5-S1 (forward displacement of one vertabrae over another). Over the next few years, Jones received a variety of treatments, including a body cast. In February of 1982, Jones' treating physician wrote that Jones' condition was stationary, with a residual impairment of function.

4

Jones applied for disability insurance benefits in 1981. His application was denied. Jones pursued the proper administrative remedies, resulting in a final denial of his application. On appeal, the district court remanded for development of vocational witness testimony. After the Secretary again denied Jones' application, Jones again appealed to the district court. The district court partially reversed the Secretary, finding disability between May of 1979 and February 1982, and partially affirmed the Secretary, upholding his finding of no disability after 1982. Jones appeals the portion of the district court's opinion that affirmed the Secretary.1

STANDARD OF REVIEW

5

This case presents an issue not previously considered. Our usual standard of review for appeals of social security benefits cases "is essentially the same as that undertaken by the district court. We consider the district court's decision, but the statutory scheme mandates a full review of the facts by our court and an independent determination as to whether the Secretary's findings are supported by substantial evidence." Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). The statute itself reads: "The judgment of the [district] court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions." 42 U.S.C. Sec. 405(g).

6

This case presents a new wrinkle. The district court partially reversed the decision of the Secretary. The Secretary did not appeal the reversal and did not cross-claim when Jones appealed. Therefore, we accept as final the determination that Jones is entitled to disability benefits for the period between 1979 and 1982. Normally, disability benefits can only be discontinued upon a finding by the Secretary of "substantial evidence" demonstrating improvements in the individual's condition. Furthermore, the Secretary must show that there are a significant number of jobs the applicant is capable of performing. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984); 42 U.S.C. Sec. 423(f). In this case, however, the Secretary made no findings concerning a discontinuance of benefits. The discontinuance of benefits results from an unappealed determination by the district court that Jones was disabled for a short period. Thus, there is no way to apply the normal standard of review, which is based on the Secretary's decision.

7

In these circumstances, we will review the district court's decision as if it were the Secretary's (i.e., for substantial evidence). We will use those of the Secretary's findings that can be made applicable, and if necessary, supplement them with the district court's findings. This approach will not abrogate the standard used in normal circumstances, and will comply fully with the statutory language. Therefore, we review this case to determine whether substantial evidence supports the decision to discontinue benefits after February of 1982.

DISCUSSION

8

The Secretary found that Jones was capable of performing a significant number of jobs after February of 1982. This finding was based on the testimony of a vocational expert. However, the testimony of the vocational expert was not based on the proper hypothetical. We have repeatedly held that subjective complaints of pain must be included in the hypothetical question that is posed to the vocational expert. E.g., Varney v. Secretary of Health and Human Services, 846 F.2d 581, 585 (9th Cir.1988); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984).

9

The hypothetical question posed to the vocational expert reads:

10

Assume that claimant is 43 years of age with 9 years of formal education, has been employed for approximately 16 years as a truck driver, assemblyman, and laborer, and has been found to be suffering from a postural impairment, i.e., instability of the spine, severe spondylolisthesis of L5-S1. Assume further, that I should find that claimant could engage in other known forms of light and/or sedentary work activity. Do you have an opinion as to the kinds of employment which exists in the national economy for a person having the limitations as described herein? Assuming your answer is in the affirmative or if you determine that the claimant's prior work was unskilled, can you state, with any degree of certainty, the extent to which the claimant's occupational base would be reduced by reason of his inability to sit, stand or walk (see exhibit 29), for the purposes of performing light or sedentary work?

11

When Jones' counsel objected that the hypothetical did not take Jones' subjective2 pain, the administrative law judge replied:

12

[F]or the purpose of your examination of [the vocational expert], you really can constrain and confine [yourself] to the objective testing and the objective evidence of record not the subjective, because he can't draw or make a conclusion based on the pain factor....

13

Answers to hypotheticals that lack all of the proper information about the claimant are not considered substantial evidence. Gallant, 743 F.2d at 1546. Therefore, the Secretary has not met his burden of showing that there are a significant number of jobs Jones is capable of performing. See Kail, 722 F.2d at 1498. Accordingly, we must remand this decision to the Secretary for further proceedings based on a proper hypothetical. Id. at 1497.

CONCLUSION

14

The decision of the district court that Jones was disabled between 1979 and 1982 is a final unappealed judgment. The decision of the district court to uphold the Secretary's denial of benefits to Jones after February 5, 1982, is reversed because the Secretary's decision is not is not supported by substantial evidence. The testimony of the vocational witness is based on an inadequate hypothetical and does not constitute substantial evidence. Therefore, we remand the appealed portion of the district court's decision to the Secretary of Health and Human Services.

15

REVERSED and REMANDED.

*

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

1

The Secretary devotes two of the four pages of analysis in his brief to an argument that the district court erred in reversing the Secretary. However, the Secretary did not appeal from this order of the district court

2

Subjective in this context merely means nonmeasurable. Jones' complaints of pain are fully supported by his medical condition. No doubt has been cast on Jones' accounts of pain. Cf. Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1398 (9th Cir.1988)