OpenJurist

899 F2d 1225 Howard Self v. Louis Sullivan, Secretary of Health and Human Services

899 F.2d 1225

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Howard SELF, Plaintiff-Appellant,
v.
Louis SULLIVAN,* Secretary of Health and Human
Services, Defendant-Appellee.

No. 88-2820.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1989.
Decided April 10, 1990.

Before JAMES R. BROWNING, CYNTHIA HOLCOMB HALL, and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Howard Self appeals the judgment of the district court affirming the administrative law judge's (ALJ) decision denying Self Title II disability benefits. The ALJ found Self was not disabled between June 15, 1982 and September 30, 1982, the relevant period of insured status. We vacate the district court's judgment and remand to the Secretary for further proceedings.

3

The ALJ made his determination that Self retained residual capacity to perform available jobs solely on the basis of the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2 ("the grids"). However, Self's claim was based largely on pain and heart problems, which are non-exertional limitations, see Varney I, 846 F.2d at 585 (two previous heart attacks and chest pain); Desrosiers v. Secretary, 846 F.2d 573, 577 (9th Cir.1988) (pain); Howard v. Heckler, 782 F.2d 1484, 1486 n. 1 (9th Cir.1986) (pain), and non-exertional limitations are not covered by the grids, see id.; 20 C.F.R. Pt. 404, Subpt. P, App. 2, Sec. 200.00(d)-(e). Thus "the ALJ erred by relying exclusively on the grids and not taking account of [Self's] significant nonexertional limitations." Cotton v. Bowen, 799 F.2d 1403, 1408 n. 5 (9th Cir.1986); see also Jones v. Heckler, 760 F.2d 993, 998 (9th Cir.1985) (under these circumstances, "the Secretary may not rely on the grids alone to show the availability of jobs for the claimant"). The ALJ was required to hear the testimony of a vocational expert. Perminter v. Heckler, 765 F.2d 870, 871-72 (9th Cir.1985).

4

We also note the ALJ did not apply the proper legal standard in denying Self benefits. See Brawner v. Secretary, 839 F.2d 432, 433 (9th Cir.1988). Although Self testified to increasing pain during the critical June to September period, the ALJ followed the standard eligibility determination analysis rather than presuming non-disability up unitl June and then making findings as to whether Self carried his burden of showing "changed circumstances."

5

On remand, the Secretary should: (1) determine whether Self demonstrated "changed circumstances" during the June to September 1982 period and (2) take testimony from a vocational expert as to whether Self retains the residual capacity to perform other work available in the national economy.

6

REVERSED AND REMANDED.

LEAVY, Circuit Judge, dissenting:

7

I would affirm the Secretary's denial of Self's second application for Social Security disability insurance benefits. Self's failure to appeal from the Secretary's denial of his initial claim for benefits on June 15, 1982, created a presumption of nondisability which Self was requiared to overcome in his second application by proving "changed circumstances" indicating a greater disability. See Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985) (quoting Booz v. Secretary, 734 F.2d 1378, 1379-80 (9th Cir.1984)). Self did not introduce evidence of "changed circumstances" between June 15, 1982, and the date his insured status expired on September 30, 1982, and thus he has failed to establish a prima facie case of disability.

8

The ALJ warned the parties that he was specifically concerned with Self's condition during the relevant period between June 15, 1982, and September 30, 1982. Nevertheless, Self failed to offer objective medical evidence that either his heart or back condition deteriorated during that period. In fact, the medical records for that period indicate that Self's condition remained the same.

9

To the extent Self's testimony of increased pain can be considered evidence of changed circumstances, Self failed to differentiate at which point in 1982 that pain became disabling. Self referred generally to his condition "in 1982" and never specifically focused on the last half of that year despite repeated requests by the ALJ that he do so.

10

Although Self's health has deteriorated significantly in recent years, that deterioration will not justify the present request for Social Security benefits. There is no evidence that Self's condition worsened between June 15, 1982, and September 30, 1982, and thus his application for benefits should be denied.

*

Pursuant to Fed.R.App.P. 43(c)(1), Louis Sullivan has been substituted for the original defendant, Otis Bowen

**

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