Petition for Writ of Certiorari — Forney v. Apfel

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97-5737.

No.

La

7

Supreme Court, U.S.

FILED

AUG 25 1997

OFFICE OF THE CLERK

In The

Supreme Court of the United States

OCTOBER TERM, 1996

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v

SANDRA K. FORNEY,

a

JOHN J. CALLAHAN, Acting Commissioner,

Social Security Administration,

Petitioner,

Respondent.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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PETITION FOR A WRIT OF CERTIORARI

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Ralph Wilborn, Attorney at Law

Counsel of Record For Petitioner

Ralph Wilborn & Etta L. Wilborn, P.C.

1580 Valley River Drive, Suite 170

Eugene, Oregon 97401

(541) 485-4265

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QUESTION PRESENTED

May a Social Security Disability claimant who in district court procures a final

judgment with an accompanying order of remand for additional administrative

proceedings, pursuant to sentence four of 42 U.S.C. § 405(g), appeal to the Circuit

Court of Appeals on the ground that broader relief (e.g., an outright award of

disability benefits) should have been granted by the district court, based on issues

which the district court decided adversely to the claimant?

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TABLE OF CONTENTS

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TABLE OF CONTENTS FOR APPENDIX, INCLUDING CITATIONS OF THE

OFFICIAL AND UNOFFICIAL REPORTS OF THE OPINIONS AND

ORDERS ENTERED IN THIS CASE BY COURTS AND THE SOCIAL

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STATUTES AND REGULATIONS INVOLVED IN THIS CASE ................ 3

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REASONS FOR GRANTING THE WRIT: ARGUMENT ..............0000005. 6

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INDEX OF AUTHORITIES

CASES

Bobms vy. Gardner, 381 F.2d 283 (Sth Cir. 1967)... 0... cc cere ce cee eevevevens 9

Forney v. Chater, 108 F.3d 228 (9th Cir. 1997)... 2... cece eee eee eee eens 2,5

Sullivan v. Finkelstein, 110 S.Ct. 2658 (1990) ............ cece eens 6, 7, 8, 9, 11

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STATUTES

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OTHER

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TABLE OF CONTENTS FOR APPENDIX

INCLUDING CITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS

OF THE OPINIONS AND ORDERS ENTERED IN THIS CASE

BY COURTS AND THE SOCIAL SECURITY ADMINISTRATION

Opinion, U.S. Court of Appeals for the Ninth Circuit, filed March 4, 1997, officially

published as Forney v. Chater, 108 F.3d 228 (9th Cir. 1997) ............. 1-13

Judgment, U.S. District Court for the District of Oregon, filed May 24,1995 ........ 14

Opinion and Order, U.S. District Court for the District of Oregon, entered May 2,

tt i Cees eee a danekeccesee dh diiccecoccccccccetes 15-25

Decision of Administrative Law Judge Stephen P. Kramer, dated April 18, 1994 ... 26-38

Action of Appeals Council Upon Request for Review, undated ................ 39-40

Order, U.S. Court of Appeals for the Ninth Circuit, filed May 29, 1997, denying

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iv

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PETITION FOR A WRIT OF CERTIORARI

Petitioner, Sandra K. Forney (hereinafter "Forney"), respectfully petitions this Court to

issue a writ of certiorari to review the March 4, 1997, published OPINION of the United States

Court of Appeals for the Ninth Circuit (hereinafter, Ninth Circuit), declining to permit Forney

immediately to appeal adverse rulings of the district court and dismissing her appeal.

In the U.S. District Court for the District of Oregon, Forney sought judicial review of the

final decision of the Commissioner of the Social Security Administration! which denied Forney’s

application for Social Security disability benefits protectively filed on November 18, 1991. The

district court held against Forney on three substantive issues. Pursuant to the fourth sentence of

42 U.S.C. § 405(g), the district court then remanded Forney’s Social Security disability case to

the Social Security Administration for further proceedings with regard to an unrelated fourth

issue.

Forney sought immediately to appeal to the Ninth Circuit the district court’s three adverse

rulings. However, the Ninth Circuit dismissed Forney’s appeal, holding that Forney is precluded

from appealing the district court’s adverse rulings until after the agency completes remand

proceedings with regard to the fourth unrelated issue. At that time, the Ninth Circuit held, if

Forney has not been granted disability benefits, she may file a new and separate civil action to

seek review of the district court’s adverse rulings in the instant civil action.

Because Forney believes the Ninth Circuit's decision conflicts with Supreme Court

precedent and the express language of 42 U.S.C. § 405(g), she hereby petitions for a writ of

certiorari.

ee

' Pursuant to § 106(d) of P.L. 103-296, the Social Security Independence and Program

Improvements Act of 1994, the function of the Secretary of Health and Human Services in Social

Security cases was transferred to the Commissioner of the Social Security Administration,

effective March 31, 1995. Although the Secretary of Health and Human Services was responsible

for the actions of the Social Security Administration at the time of the final decision in this case,

the undersigned refers to "the Commissioner” throughout this petition for the sake of convenience.

1

°

OPINIONS BELOW

Petitioner, Sandra K. Forney, filed an application for Social Security disability benefits

on November 18, 1991. Forney alleged disability beginning June 7, 1991, and continuing.

Following mesne administrative proceedings, by decision dated April 18, 1994, an administrative

law judge (ALJ), Stephen P. Kramer found that Forney was not disabled. (Appendix at 26-38).

The Appeals Council of the Social Security Administration declined to review the ALJ’s decision.

(Appendix at 39-40). This action resulted in the ALJ's decision becoming the agency’s final

decision pursuant to 42 U.S.C. § 405(g).

Forney appealed to the U.S. District Court for the District of Oregon, raising four issues.

Following full briefing, U.S. District Judge, Robert E. Jones, by OPINION AND ORDER entered

May 2, 1995, and JUDGMENT entered May 25, 1995, held against Forney on her first three

issues’ and held in her favor on the fourth’. Because of the district court’s favorable ruling on

Forney’s fourth issue, the district court then reversed the ALJ’s decision and remanded the matter,

pursuant to sentence four of 42 U.S.C. § 405(g), for additional administrative proceedings.

Forney sought immediately to appeal the district court’s three adverse rulings to the Ninth

Circuit. Specifically, Forney argued that the district court incorrectly had held agains: Forney

on those three issues, and that if the Ninth Circuit correctly were to resolve those issues, remand

for payment of benefits (instead of remand for additional proceedings) would be mandated. By

published OPINION filed March 4, 1997 (see Forney v. Chater, 108 F.3d 228 (9th Cir. 1997)),

the court of appeals declined to permit Forney immediately to appeal the adverse rulings of the

district court and dismissed her appeal. (Appendix at 5-13). Specifically, the Ninth Circuit held

as follows:

Forney prevailed in district court by securing a remand to the Secretary pursuant

to sentence four of 42 U.S.C. § 405(g). The remand order terminated her civii action

? See Appendix at 22-24.

3 See Appendix at 24-25.

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favorably to her, and she is the prevailing party. As a prevailing party, she cannot appeal

the remand order. Accordingly, Forney’s appeal is DISMISSED.

(See Appendix at 13).

By Order filed May 29, 1997, the U.S. Court of Appeals for the Ninth Circuit denied

Forney’s petition for rehearing. (Appendix at 41).

SJ

GROUNDS FOR JURISDICTION

The published OPINION of the U.S. Court of Appeals for the Ninth Circuit was entered

March 4, 1997. (Appendix at 1-13). Forney’s petition for rehearing was denied by Order filed

May 29, 1997. (Appendix at 41). The instant petition for a writ of certiorari is filed within 90

days of the denial of the petition for rehearing and is timely under Supreme Court Rules 13.3,

29.2, and 30.1.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

¢

STATUTES AND REGULATIONS INVOLVED IN THIS CASE

The following statute, 42 U.S.C. § 405(g) is at issue in the instant appeal:

42 U.S.C. § 405(g) Judicial review.

Any individual, after any final decision of the Commissioner of Social Security made after

a hearing to which he was a party, irrespective of the amount in controversy, may obtain

a review of such decision by a civil action commenced within sixty days after the mailing

i or within such further time as the Commissioner of

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submit in under subsection

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validity of such regulations. The court may, on motion of the of Social

taken before the Commissioner of Social Security, but only upon a showing that there is

evidence which is material and that there is good cause for the failure to incorporate

such evidence into the record in a prior proceeding; and the Commissioner of Social

Security shall, after the case is remanded, and after hearing such additional evidence if

so ordered, modify or affirm the Commissioner’s findings of fact or the Commissioner’ s

decision, or both, and shall file with the court any such additional and modified findings

of fact and decision, and a transcript of the additional record and testimony upon which

the Commissioner’s action in modifying or am based. Such additional or

modified findings of fact and decision shall be revi only to the extent provided for

i igi decision. The judgment of the court shall

review of the findings of fact and

be final it shall be subject to review in the same manner as a judgment

in other actions. Any action instituted in accordance with this subsection shall

survive notwithstanding any change in the person occupying the office of Commissioner

STATEMENT OF THE CASE

Forney seeks review of a judgment of the U.S. Court of Appeals for the Ninth Circuit.

The basis for federal jurisdiction in the court of first instance, the U.S. District Court for the

District of Oregon, was pursuant to 42 U.S.C. § 405(g), following issuance of a final decision

by the Commissioner of the Social Security Administration.

Forney petitions for a writ of certiorari to review the OPINION of the Ninth Circuit

dismissing Forney’s appeal of the district court’s adverse rulings.

The following facts are material to consideration of the questions presented:

1) The district court held against Forney on three issues. (See Appendix at 22-24, sections

I, Il, and Ill).

2) A holding favorable to Forney on any one of the three adverse rulings would have

resulted in a remand for payment of benefits, without additional administrative

proceedings. Remand for payment of benefits constitutes all the relief Forney sought.

3) The district court held in Forney’s favor on an unrelated fourth issue, and remanded the

case for further proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g). (See

Appendix at 24-25, section IV). Remand for additional proceedings is less than all the

4)

5)

6)

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relief Forney sought,’ and it is not reasonably foreseeable that remand for additional

proceedings will lead to Forney’s obtaining all the relief sought.

The fourth sentence of 42 U.S.C. § 405(g) provides as follows:

The court shall have power to enter, upon the pleadings and transcript of the

record, a judgment affirming, modi or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a

rehearing.

Describing the appealability of a final judgment entered pursuant to the fourth sentence

of 42 U.S.C. § 405(g), the eighth sentence of 42 U.S.C. § 405(g) provides as follows:

The judgment of the court shall be final except that it shall be subject to review

in the same manner as a judgment in other civil actions. (Emphasis added).

"[(Ijn other civil actions," plaintiffs who obtain less than all the relief sought normally

have the right to appeal "adversely decided" issues to the appellate court in an attempt to

obtain all the relief sought.

Because Forney did not prevail on the district court’s three adverse rulings, and because

she did not obtain all the relief sought, Forney sought review by the Ninth Circuit of

the district court’s three adverse rulings.

In a decision which has been published in the Federal Reporter as Forney v. Chater, 108

F.3d 228 (9th Cir. 1997), the Ninth Circuit held that Forney prevailed in district court by

securing a remand pursuant to sentence four of 42 U.S.C. § 405(g). Because the remand

order terminated her civil action favorably to her, she is the prevailing party. As a

prevailing party, she cannot immediately appeal the district court’s adverse rulings and

order of remand.

With regard to the district court’s three adverse rulings, Forney is not a prevailing party.

Forney asserts that she has the right immediately to appeal the district court’s three

adverse rulings, and that she has a right to seek, on appeal, all the relief sought before the

district court.

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REASONS FOR GRANTING THE WRIT: ARGUMENT

Petitioner Forney respectfully submits this case presents an important federal question for

which there are compelling reasons the petition for a writ of certiorari should be granted.

Because the Social Security Act is a federal program, national in scope and remedial in purpose,

there is a compelling need for meaningful appellate review of the agency’s findings.

First, this case involves a split in the circuits courts of appeal over an important question

of federal law. This Court should resolve this circuit split.

Second, this case involves an important question of federal law which, according to the

Ninth Circuit, has not been settled by the Supreme Court. This Court should settle this important

federal question.

Finally, in its published OPINION, the Ninth Circuit has decided an important federal

question in a way which conflicts with this Court’s holdings in Sullivan v. Finkelstein, 110 S.Ct.

2658 (1990) and Shalala v. Schaefer, 113 S.Ct. 2625 (1993).

This Court should grant the petition for a writ of certiorari in order to resolve the issue

of whether or not a Social Security disability claimant has the right, upon procuring a final

judgment with an order of remand for additional proceedings, pursuant to sentence four of 42

U.S.C. § 405(g), immediately to appeal the district court’s adverse rulings on issues unrelated to

the issue which formed the basis for the remand order, and to seek on appeal all the relief sought

before the district court.

It is not contested that, in many circumstances, federal court orders remanding cases to

administrative agencies for further proceedings are interlocutory orders which are not immediately

appealable. Indeed, such may be the general rule. However, Forney contends that the instant

case is distinguishadle from such a general rule, because Congress and the Supreme Court

expressly have defined Social Security disability claimants as a class of plaintiffs that may appeal

from final judgments entered pursuant to sentence four of 42 U.S.C. § 405(g), even though those

final judgments may be accompanied by remand orders.

The fourth sentence of 42 U.S.C. § 405(g) provides as follows:

The court shall have power to enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the Commissioner of Social

Security, with or without remanding the cause for a rehearing.

42 U.S.C. § 405(g), sentence four.

It is uncontested that the district court remanded the instant case pursuant to the foregoing

fourth sentence of 42 U.S.C. § 405(g). Specifically, the district court affirmed the agency’s

findings on three issues, then "remand[ed] the cause for a rehearing" based on a fourth, unrelated,

issue.

The eighth sentence of 42 U.S.C. § 405(g) provides as follows:

The judgment of the 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. § 405(g), sentence eight (all emphases added).

At slip op. 2244 (reproduced at Appendix page 10), the Ninth Circuit correctly held that

the sentence four remand judgment herein is "final"> with respect to "all parties....". (Appendix

at 10). However, the Ninth Circuit then held that Forney nevertheless does not have the right

immediately to appeal the adverse findings contained in that final judgment and to seek on appeal

the relief denied by the district court. (See Appendix at 11 and 13). Instead, the Ninth Circuit

held that Forney must acquiesce in the order of remand and endure the remand proceedings. If,

following the administrative proceedings upon remand, Forney has not been found disabled, and

she still desires to pursue her disability claim, she must file a new and separate civil action in

district court before being able to appeal the district court’s adverse rulings in the instant case

Forney contends that the Ninth Circuit’s holding conflicts with the plain language of 42

U.S.C. § 405(g), sentence eight, quoted above, and that the court’s holding conflicts with Sullivan

y. Finkelstein, 110 S.Ct. 2658 (1990), where the Supreme Court held that a remand judgment

> That is, the judgment is not merely interlocutory, and it "terminates the civil action."

(Appendix at 9-10, citing Sullivan v. Finkelstein, 110 S.Ct. 2658 (1990); emphasis added by

Forney).

entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) is "a final, appealable judgment

even though that judgment may be accompanied by a remand order." Finkelstein at 2666

(emphases added).

In Finkelstein, the Supreme Court addressed this issue and reached a different conclusion

than did the Ninth Circuit in the instant case. In Finkelstein, this Court held as follows:

Respondent also argues that the eighth sentence of § 405(g), providing that 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," does not compel the conclusion

that a judgment entered pursuant to the fourth sentence is immediately appealable. In

respondent’s view, Congress used the the term "final" in the eighth sentence only to make

clear that a court’s decision reviewing agency action could operate as law of the case and

res judicata. Cf. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct.

1209, 1218, 2 L.Ed.2d 1345 (1958). But even if it is true that Congress used the term

"final" to mean "conclusively decided,” this reading does not preclude the construction of

"final" to include "appealable," a meaning with which "final" is usually coupled. Nor

does respondent consider the significance of Congress’ use of the term "judgment" to

describe the action taken by the District Court in this case. [Footnote omitted]. Although

respondent argues that the words "final decisions," as used in 28 U.S.C. § 1291,

encompass no more than what was meant by the terms "final judgments and decrees” in

the predecessor statute to § 1291, respondent recognizes that "final judgments” are at the

core of matters appealable under § 1291, and respondent does not contest the power of

Congress to define a class of orders as "final judgments" that by inference would be

a ble under § 1291. Cf. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 434, 76

S.Ct. 895, 899, 100 L.Ed. 1297 (1956). This is what Congress has done in the fourth

sentence of § 405(g). [Footnote omitted].

More generally, respondent argues that a power in the district court to remand to

an agency is always incident to the power to review agency action and that § 405(g) only

expanded the district courts’ equitable powers; therefore, she insists, it is improper to

construe § 405(g) as a limit on the district courts’ power to remand. This argument

misapprehends what Congress sought to accomplish i in § 405(g). The fourth sentence of

§ 405(g) does not "limit" the district courts’ authority to remand. Rather, the fourth

sentence directs the entry of a final, appealable judgment even though that judgment

may be accompanied by a remand order. The fourth sentence does not require the

ee ae oe nee oo Oe COREY,

it specifically provides that a district court may enter judgment "with or without

the cause for a rehearing."

Finkelstein 110 S.Ct. at 2665-66 (bold and underlined emphases added).

It is beyond question that “orney could have appealed the district court’s adverse findings

had the district court not "accompanied [its judgment with] ...a remand order." In accordance

with Finkelstein, Forney maintains that the Ninth Circuit court’s OPINION is in error, and that

the district court’s judgment in this case is appealable “even though that judgment [was]

accompanied by a remand order." Finkelstein 110 S.Ct. at 2666 (emphases added).

)

Indeed, in footnote 3 of Finkelstein, this Court expressly notes, "In other cases the district

court may order a remand to the agency but the person seeking judicial review may seek

to appeal on the ground that broader relief should have been granted by the district

court.”° Finkelstein 110 S.Ct. at 2663, footnote 3 (bold emphasis added). Forney contends that

this Court’s ultimate holding in Finkelstein, and the plain language of 42 U.S.C. § 405(g), both

mandate the conclusion that plaintiffs in Forney’s position "may seek to appeal on the ground that

broader relief should have been granted by the district court."

Forney also contends that the Ninth Circuit’s OPINION conflicts with Shalala v. Schaefer,

113 S.Ct. 2625 (1993), where the Supreme Court, quoting from sentence eight of § 405(g),

clarified that the judgment authorized by sentence four of 42 U.S.C. § 405(g) "shall be final

except that it shall be subject to review in the same manner as a judgment in other civil

actions." Schaefer 113 S.Ct. at 2629 (all emphases added). Contrary to this Court’s holding in

Schaefer, in the instant case, the Ninth Circuit held that Forney’s sentence four judgment is not

“subject to review in the same manner as a judgment in other civil actions." Instead, the Ninth

Circuit held that Forney’s final judgment is appealable only in the same manner as interlocutory

orders normally are appealable in other civil actions (i.e., they aren’t). This holding conflicts

with Supreme Court precedent, and it contravenes the plain language of 42 U.S.C. § 405(g).

In holding that Forney’s sentence four judgment is not immediately appealable, the Ninth

Circuit failed adequately to distinguish between remand judgments which terminate the civil

action and remand orders which are merely interlocutory. The court’s holding conceivably could

lead to an endless circle of civil actions and district court remands, wherein Forney would never

be afforded appellate review.

® For this proposition, the Court cited Bohms v. Gardner, 381 F.2d 283 (CA8 1967), cert.

denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968), then stated, "None of these

situations are presented in this case, and we express no opinion about appealability in those

circumstances." Id. Bohms involved a sentence six remand, and the conclusion reached by the

Bohms court (appeal dismissed because a sentence six remand is not a final judgment) is fully

consistent with Finkelstein, which holds that a sentence four remand is a final judgment, and

with Schaefer, 113 S.Ct. at 2631, which holds that a sentence six remand is not a final judgment.

Forney applied for benefits 52 years ago. Her claim was denied and she requested

reconsideration. Her claim was denied again, and she requested a hearing. After a hearing, her

claim was denied a third time, and she requested review by the Appeals Council. The Appeals

Council remanded the case for another hearing, after which Forney’s case was denied yet a fourth

time. She again requested Appeals Council review, and the Appeals Council denied her claim

for a fifth time. Forney appealed to federal court. Three and one half years after Forney applied

for disability benefits, the district court remanded Forney’s case for yet a third hearing, and

directed the agency to apply an improper standard which seriously prejudices Forney’s case.

Since June 7, 1991, over six years ago, Forney has been unable to work and unable to

support herself. The Ninth Circuit court’s OPINION holds that after being denied benefits by

the agency five times after two hearings, one intra-agency remand, and one federal court remand,

over the course of three and one half years, Forney does not have the right to appellate review

of those issues which, if correctly decided by the appellate court, would warrant remand for an

immediate award of disability benefits.

Upon remand, the agency will adjudicate Forney’s case by applying the incorrect standards

dictated by the district court’s remand order. Based on the undersigned’s experience, it will take

approximately two years for Forney’s case to work its way down through the agency’s Appeals

Council, back to another hearing and denial, back up to the Appeals Council, and back to federal

court. Approximately two years’ time will be expended on the application of the improper legal

standard dictated by the district court’s remand order, and it is not reasonably foreseeable that

Forney will be any better off after the remand proceedings are completed. At the end of the

unproductive remand proceedings, it will have been approximately 8 years since Forney applied

for benefits, and if the district court again remands her case to the agency, she again will be

without the right to appellate review. This cycle conceivably could continue ad infinitum, with

Forney never being afforded the right to meaningful appellate review. This is not, in the words

of the Ninth Circuit, "judicial economy." See slip op. at 2245. (Appendix at 11).

2

10

The Ninth Circuit's rationale regarding judicial economy (see Appendix at 11) does not

apply herein. The instant case does not represent a "piecemeal" appeal, which "normally will

leave further administrative proceedings to follow regardless of the outcome of the appeal." Slip

op. 2245, fn 6. (Appendix at 11). Instead, if the appellate court addresses Forney’s arguments

on the merits, and if the appellate court holds in Forney’s favor on the matters she seeks to

appeal, the court will order an award of benefits, and the matter will be at an end. Nor is Forney

at all likely "on remand, [to] secure all the relief she seeks,” as the Ninth Circuit speculates at

slip op. 2245. (Appendix at 11). Instead, given the district court’s adverse and incorrect

findings, and given that the agency will apply incorrect legal standards during the remand

proceedings, it is virtually certain that Forney will be back before the district court pursuing her

claim in yet another civil action several years from now.

+

THE CIRCUITS ARE SPLIT

The Seventh, Ninth, and Tenth Circuits have published opinions permitting immediate

appeals, by prevailing plaintiffs, of judgments of remand pursuant to 42 U.S.C. § 405(g), sentence

four. See Richmond v. Chater, 94 F.3d 263 (7th Cir. 1996), Atkins v. Shalala, 837 F.Supp. 318

(D.Or. 1993), as modified by Atkins v. Shalala, 70 F.3d 529 (9th Cir. 1995), and Nguyen v.

Shalala, 43 F.3d 1400 (10th Cir. 1994). Ironically, because of the conflict between the published

decision in Atkins and the published decision in Forney, the Ninth Circuit also has an intra-circuit

conflict.

Richmond, Atkins, and Nguyen are consistent with this Court’s holdings in Finkelstein

and Schaefer that remand orders pursuant to sentence four of § 405(g) are appealable, even

though accompanied by a remand order. This Court should grant the petition for a writ of

certiorari and so find. Because the Ninth Circuit’s decision creates an inter-circuit conflict and

because it conflicts with both this Court’s precedential holdings and the Social Security Act, this

Court should issue a writ of certiorari to review the decision of the U.S. Court of Appeals for

the Ninth Circuit.

11

+

CONCLUSION

For the foregoing reasons, Forney respectfully prays that this Court issue a writ of

certiorari to review the OPINION of the United States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

Ralph Wilborn, Attorney atLaw = ~~~

Counsel Of Record For Petitioner

Ralph Wilborn and Etta L. Wilborn, P.C.

1580 Valley River Drive, Suite 170

Eugene, Oregon 97401 (541) 485-4265

12

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Sanpra K. Forney,

Plaintiff-Appellant, No. 95-35560

»: . D.C. No.

Suircey S. Crater, Secretary, CV-94-06357-REJ

Commissioner, Social Security

Administration, OPINION

Defendant-Appellee.

Appeal from the United States District Court

For the District of Oregon

Robert E. Jones, District Judge, Presiding

Argued and Submitted

November 8, 1996—Portland, Oregon

Filed March 4, 1997

Before: William C, Canby, Jr., Pamela Ann Rymer, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Canby

SUMMARY

Government Law/Social Security

The court of appeals affirmed a judgment of the district

court. The court held that a social security disability claimant

prevailing in the district court to the extent of winning a

remand pursuant to sentence four of 42 U.S.C. § 405(g) is not

entitled to appeal.

2235

Appendix - Page 1

22% Forney v. CHATER

my Administration (Secretary) denied

appellant Sandra Forney disability benefits. An administrative

a Forney sought review in

district court. As to three of her contentions, the court ruled

against Forney, holding that the ALJ did not err in rejecting

her physician's testimony; in discrediting her pain testimony;

ats tlie Gen 6 tepatetend Grediad © Go vertend

expert included all of her relevant physical limitations. As to

her fourth contention, the court ruled in her favor, holding that

were any occupations that Fomey, with her impaired reaching

ability, could engage in.

Forney appealed the first three rulings.

{1} The threshold question was whether Fomey could

appeal when the district court ordered a remand under sen-

tence four that might result in an award of all benefits she

claimed.

[2] A few years ago, the district court's decision would not

have been said to be “final.” [3] In a 1990 case, the Supreme

Court permitted the Secretary to appeal as final a decision

remanding a social security disability claim for further admin-

istrative proceeding. As in prior Ninth Circuit decisions, the

Supreme Court pointed out that should the Secretary on

remand undertake the inquiry mandated by the district court

and award benefits, it would be doubtful whether he could

appeal his own order.

[4] The fourth sentence of § 405(g) authorizes the district

court “to enter ‘a judgment’ affirming, modifying, or revers-

ing the decision of the Secretary with or without remanding

the cause for « chearing.” The Supreme Court held that the

district court's remand order was unquestionably a

“judgment,” as it terminated the civil action challenging the

Forney v. CHATER 2237

Secretary's final determination that the claimant was not enti-

tled to benefits. In light of that comment, it could not be con-

cluded that the decision in this case was not final for Forney

as well as for the Commissioner.

[5] A civil action ending in a sentence-four remand is

“final” for all parties to it. [6] That fact, however, did not nec-

essarily entitle Forney to appeal the district court's decision.

A prevailing party normally may not appeal the decision in its

favor. A claimant “prevails” when or she succeeds in

a sentence-four remand that may result in an 2war

of all the benefits claimed. [7] On remand, Forney might

secure all the relief she sought. If she were to, a decision on

the merits of the appeal would have been wholly unnecessary.

[8] If Forney were to be denied benefits on remand, she

would have to seek review by commencing a new civil action.

[9] The crucial question for Fomey would arise on appeal of

an adverse decision of the district court in her new civil

action. Would she be foreclosed by principles of res judicata

of collateral estoppel from litigating the issues decided against

her in her first, final civil action, in which she “prevailed?”

[10] The answer is, “no.” It would be inappropriate to hold

Forney to rulings that she had been precluded from appealing.

[11] Further, collateral estoppel applies only to rulings that

were essential to the judgment in the prior case and the dis-

trict court’s rulings against Forney were all unnecessary to the

remand.

COUNSEL

Ralph Wilbon, Ralph Wilbom and Etta L. Wilbom, Eugene,

Oregon, for the plaintiff-appellant.

Kathryn A. Warma, Assistant Regional Counsel, Social

Security Administration, Seattle, Washington, for the

defendant-appellee.

remanded to the Administrative Law Judge (“ALJ”) Forney’s

application for disability benefits under the Social Security

Act. A threshold issue is whether Fomey, who has prevailed

in district court to the extent of winning a remand pursuant to

sentence four of 42 U.S.C. § 405(g), may now appeal the dis-

trict court's ruling to this court. We conclude that she may

not, and accordingly dismiss the appeal.

lL. Facts

Fomey applied for disability benefits in 1991. Her applica-

tion was denied and she requested a hearing. An administra-

tive law judge (ALJ) held a hearing and denied benefits. The

ALJ's decision was reviewed by the Appeals Council, which

remanded the matter to the ALJ for a further hearing. The

ALJ again denied the claim, and this time the Appeals Coun-

cil denied review.

U.S.C. § 405(g). The district court ruled on four of Fomey’s

contentions. First, it held that the ALJ did not err in rejecting

the testimony of Fomey’s treating physician, because it con-

flicted with Fomey’s own testimony. Second, the district

Jon

—

longer

vious can engage in substantial work in the economy.

The Gates eek San eee SS eee Ne Seay

for further proceedings, which will presumably include fur-

ther inqu into whether there are any occupations that

[1] Fomey now appeals, seeking to challenge the district

court's first three rulings. The threshold issue is whether

within the meaning of 28 U.S.C. § 1291, insofar as Fomey is

concerned. We so held in a similar situation in Gilchrist v.

Schweiker, 645 F.2d 818, 819 (9th Cir. 1981). In Gilchrist, an

and provided nothing final for us to review. /d. at 819.

Gilchrist distinguishable from another line of our

come, in whith we pumndie’ he Secretary v0 eggeal fom on

order of the district court deciding a separable legal issue and

2240

remanding the matter to the administrative agency for further

guidelines, but would have to make

=,

:

:

The district court’s decision is adverse to the Secre-

tary and, if wrong, would result in a totally wasted

proceeding below, from which the Secretary may not

be able to appeal. Deciding this legal issue now will

promote the least possible waste of judicial

resources.

Id. We recognized that numerous other courts, in deciding

whether remand orders were appealable, had “especially con-

sidered whether a holding of nonappealability would effec-

tively deprive the litigants of an opportunity to obtain

review.” Id.

emed by a separable, arguably incorrect, legal standard incor-

porated in the remand decision. See Regents of the Univ. of

Calif. v. Heckler, 771 F.2d 1182, 1187 (9th Cir. 1985)

(amended opinion) (Secretary of Health and Human Services

may appeal adverse decision remanding for further adminis-

trative proceedings; Kaho v. lichert, 765 F.2d 877, 880-81

(9h Cir. 1985) (District Director of INS may appeal remand

order). The key to all of these decisions is that, if no appeal

explained in Chugach Alaska Corp. v. Lujan, 915 F.2d 454,

cannot appeal his own agency’s determinations.

Id.; see also United States v. Louisiana-Pacific Corp., 846

F.2d 43, 45 (9th Cir. 1988) (declining to permit United States

to appeal remand order when it would have means of securing

later review; distinguishing Stone where, after remand, “the

Secretary would have no right to appeal”).

These considerations do not apply, of course, to Fomey. If

she is denied benefits on remand, nothing prevents her from

seeking review of the denial. Moreover, she may prevail in

the administrative proceedings on remand and obtain com-

plete relief. Accordingly, we would have been inclined, under

our prior analysis, to hold that the district court’s remand

decision was not “final” as to Forney.

[3] In recent years, however, pn ag wd, ae rg

in terms that necessarily modify our former

“finality” of remand decisions. In Sullivan v. Finkeletein, 496

U.S. 617 (1990), the Court permitted the Secretary to appeal

2242 Forney v. CHaTer

Court of Appeals recognized, whether he could appeal his

own order.” Jd. at 625.

[4] In discussing the question of finality of district court

decisions under § 405(g), however, the Court made clear that

decisions by a district court remanding under the fourth sen-

tence of § 405(g) ended the civil action brought to review the

Secretary's initial decision.’ “The use of the term ‘a civil

action’ suggests that at least in the context of § 405(g), each

final decision of the Secretary will be reviewable by a sepa-

rate piece of litigation.” /d. at 624-25. The fourth sentence of

§ 405(g) authorizes the district court “to enter ‘a judgment

affirming, modifying, or reversing the decision of the Secre-

tary, with or without remanding the cause for a rehearing.’ ”

Id. at 625 (quoting 405(g) (emphasis by the Supreme Court)).

Thus, according to the Supreme Court:

The District Court’s remand order was unquestion-

ably a “judgment,” as it terminated the civil action

challenging the Secretary's final determination that

respondent was not entitled to benefits, set aside that

determination, and finally decided that the Secretary

could not follow his own regulations in considering

the disability issue.

Id. In light of this comment that the remand order terminates

the civil action, we cannot very well conclude that the deci-

*‘Remands are also authorized by the sixth sentence of § 405(g). and

those remands do not necessarily terminate the civil action. The sixth sen-

tence authorizes remands only when the Commissioner so moves before

filing an answer, or when there is a showing of new material evidence and

good cause for not earlier placing i in the record. Neither of these condi-

ions is met in the present case. Forney’s remand order therefore [alls

under the fourth sentence of 405(g). See Finkelstein, 496 US. at 626;

Shalala v. Schaefer, 113 S. Ct. 2625, 2629 & n.2 (1993).

Appendix - Page 8

Forney v. CHATER 2243

sion in our case is not final for Forney as well as for the

Commissioner.”

The fact remains, however, that Forney possibly may

obtain all of the relief she seeks in the administrative proceed-

ings on remand. The considerations of judicial economy that,

before Finkelstein, led us to hold remands generally non-final

are still present. There is a temptation, accordingly, to resist

the conclusion that Finkelstein makes a sentence-four remand

final for the claimant as well as the Secretary. After all, the

Court in Finkelstein stated that it was not making a rule for

all remands: “There is, of course, a great variety of remands,

reflecting in turn the variety of ways in which agency action

may be challenged in the district courts and the possible out-

comes of such challenges.” /d. at 623 (footnote omitted). The

Court was only ruling on “whether orders of the type entered

by the district court are immediately appealable by the

Secretary.” Id. And all but one’ of the published decisions of

the courts of appeals applying Finkelstein involve instances in

which the Secretary or comparable agency official is allowed

to appeal because, if the remand results in victory for the

claimant, the Secretary will be unable to appeal. See, e.g., St.

Francis Medical Ctr. v. Sullivan, 962 F.2d 1110, 1114 (3d

Cir. 1992); Colvin v. Sullivan, 939 F.2d 153, 155 (4th Cir.

1991); Travis v. Sullivan, 985 F.2d 919, 922-23 (7th Cir.

1993); Baca-Prieto v. Guigni, 95 F.3d 1006, 1009 (10th Cir.

1996).

[5] In the end, however, it is apparent that to conclude that

a sentence-four remand is not final for the claimant is analyti-

cally untidy; it is flatly inconsistent with the Supreme Court's

insistence in Finkelstein that a sentence-four remand termi-

*It makes no difference that the district court, in remanding, purported

not to enter a judgment. The sentence-four remand order is a final judg-

Rat, CREE CF SRDS Sie Smee, 19S. Ch, 6 SS S

*For the one exception, see note 6, infra.

2244 Forney v. CHATER

nates the civil action. Indeed, it is error for the district court

to attempt to retain jurisdiction upon making a sentence-four

remand. See Shalala, 113 S. Ct. at 2630. Thus the Fifth Cir-

cuit has interpreted Finkelstein to preclude a claimant who

has been denied benefits administratively after a sentence-

four remand from reinstating her district court action to secure

further review. Frizzell v. Sullivan, 937 F.2d 254, 256-57 (Sth

Cir. 1991). In order to contest the post-remand denial of bene-

fits, the claimant must institute a new action. See id. at 255.

The civil action ending in a sentence-four remand, therefore,

must be “final,” in a formalistic sense, for all parties to it.*

[6] That fact, however, does not necessarily entitle Forney

to appeal the district court’s decision. A prevailing party nor-

mally may not appeal the decision in its favor. See Electrical

Fittings Corp. v. Thomas & Betts Corp., 307 U.S. 241, 242

(1939) (“A party may not appeal from a judgment or decree

in his favor, for the purpose of obtaining review of findings

he deems erroneous which are not necessary to support the

decree”); United States v. Good Samaritan Church, 29 F.3d

487, 488 (9th Cir. 1994) (following Electrical Fittings). There

can be little doubt that a claimant “prevails” in the view of the

Supreme Court when he or she succeeds in securing a

sentence-four remand that may result in an award of all of the

benefits claimed.‘ The Court so held for purposes of attor-

ney’s fee awards in Shalala, 113 S. Ct. at 2631.

“Although the language of § 405(g) and Finkelstein, 496 U.S. at 624-25,

clearly support the notion that a claimant who has secured a sentence-four

remand and then been denied benefits must bring a new action to contest

the denial, the advantages of such a system do not spring readily to mind.

‘As the Supreme Court recognized in Finkelstein, there may be

instances when a claimant is foreclosed by the district court's remand

decision from part of the benefits sought, and would then seek an appeal

rom the remand decision on the ground that broader relief should have

been awarded. See Finkelstein, 496 U.S. at 623 n.3. Like the Supreme

Court, we express ne upinion on the right of the claimant to immediate

appeal in that si See id. Implicit in this disclaimer, however, is the

that when the remand order does not foreclose the possibility

of the claimant's obtaining all of the relief sought, it is not appealable by

the prevailing claimant.

=

Appendix - Page 10

Forney v. CHator 2245

[7] It is true that the status of prevailing party for purposes

of attorney’s fees under 28 U.S.C. § 2412(d)(1)(B) does not

automatically equate with status as prevailing party for pur-

poses of appeal. There are compelling reasons, however, for

declining to permit a claimant in Fomey’s position from

appealing the remand order she succeeded in obtaining. They

are the same reasons that underlay the long-established gen-

eral rule that a remand to an administrative agency was not

appealable, with an exception only for the Secretary who

might be precluded from post-remand access to the court. See,

e.g.. Perales v. Sullivan, 948 F.2d 1348, 1353 (2d Cir. 1991);

Travelstead v. Derwinski, 978 F.2d 1244, 1247 (Fed. Cir.

1992). Forney may, on remand, secure all of the relief she

seeks. If she does, our decision on the merits of this appeal

will have been wholly unnecessary. Review at this point

would be subject to all of the disadvantages of piecemeal

appeals; unnecessary decisions waste judicial effort, interfere

unduly with the district courts or administrative agencies, and

require us to adjudicate on less than a full record. See Travel-

stead, 978 F.2d at 1247. All of these considerations lead us to

conclude that we ought not to entertain Forney’s present appeal.*

[8] Forney argues, however, that our analysis leaves her in

considerable danger. She is the prevailing party in her civil

*We do not follow, therefore, the example of the Tenth Circuit in

Nguven v. Shalala, 43 F.3d 1400 (10th Cir. 1994). There the court of

appeals permitted a claimant to appeal a sentence-four remand order, stat-

ing in a footmote that such remand orders were “final and appealable”

under Finkelstein. Id. a 1402 n.2. We have found no other published deci-

sion permitting appeal of such a remand order by a claimant. The outcome

of the claimant’s appeal was most unusual; the remand order, which had

been invited by the Secretary, was held to be improper and the Secretary's

denial of benefits was ordered reinstated. /d. at 1403-04. Thus the only

party that appealed, the ciaimant was left worse off for having appealed.

We conclude that this scenario is unlikely to be repeated, and that appeal

of a remand order by a claimant normally will leave further adininistrative

proceedings to follow regardless of the outcome of the appeal. For that

ani to appeal. . este

Appendix - Page 11

2246 Forney v. CHATER

action that resulted in a remand. Yet on some of the issues she

urged, the district court ruled against her. If she is denied ben-

efits on remand, she must seek review by commencing a new

civil action. See Finkelstein, 496 U.S. at 625 (“each final deci-

sion of the Secretary will be reviewable by a separate piece

of litigation”); Frizzell, 937 F.2d at 255. In that new action,

she contends, she is likely to be foreclosed by principles of res

judicata, collateral estoppel, or even stare decisis from con-

testing the court’s adverse rulings in the prior action. Thus,

she contends, she must be allowed to appeal those issues now

or forever lose her right to contest them.

[9] Although Fomey’s argument has some initial appeal,

her dilemma is a false one. It is not surprising or unfair that,

should Forney return to district court after being denied bene-

fits on remand, the district court likely will adhere to its prior

rulings. Even if the district court’s remand had not been final,

as Finkelstein requires it to be, the district court presumably

would adhere to the law of the case and not reexamine its ear-

lier rulings. The crucial question for Forney arises when she

appeals to this court the adverse decision of the district court

in her new civil action. Will she be foreclosed by principles

of res judicata or collateral estoppel from litigating the issues

decided against her in her first, final civil action, in which she

“prevailed”?

[10] The answer is “no.” In the first place, it is inappropri-

ate to hold Forney to rulings that she was precluded from

appealing. In Luben Industries, Inc. v. United States, 707 F.2d

1037, 1040 (9th Cir. 1983), we upheld a district court's

refusal to hold the government collaterally estopped by an

interlocutory ruling that it could not have appealed. See a/so

United States v. Weems, 49 F.3d 528, 533 (9th Cir. 1995)

(principle that government should not be bound by ruling it

could not appeal inapplicable when opposing party appealed

and government was able to litigate issue on cross-appeal).

[11] Second, collateral estoppel applies only to rulings that

were essential to the judgment in the prior case. /d. at 532.

Appendix - Page 12

Forney v. CHaTEeR 2247

The judgment that Fomey has just secured is a sentence-four

remand to the Secretary. The district court’s rulings against

Forney on the issues of rejection of physician’s testimony,

discrediting of Formey’s pain testimony, and inclusion of

Forey’s physical limitations in the expert’s hypothetical

questions, were all unnecessary to the remand. The remand

was based solely on the error of the vocational expert in testi-

fying that Fomey could perform occupations requiring fre-

quent or constant reaching. Thus Fomey’s case falls squarely

within the Restatement example that we quoted approvingly

in Weems, 49 F.3d at 533:

A, as owner of a trademark, brings an action against

B for infringement. B denies the validity of the

trademark and denies infringement. The court finds

that the trademark is valid, but that B had not

infringed it, and gives judgment for B. Thereafter A

brings an action against B alleging that since the ren-

dition of judgment B infringed the trademark. B is

not precluded from defending this action on the

ground that the trademark is invalid.

Restatement Second of Judgments, § 27, comment h, Illustra-

tion 14, “Determinations Not Essential to Judgment” (1982).

Thus Forney will not be bound in a future appeal by the

adverse rulings that we do not permit her to appeal today.

Ill. Conclusion

Forney prevailed in district court by securing a remand to

the Secretary pursuant to sentence four of 42 U.S.C. § 405(g).

The remand order terminated her civil action favorably to her,

and she is the prevailing party. As a prevailing party, she can-

not appeal the remand order. Accordingly, Fomey’s appeal is

DISMISSED.

Appendix - Page 13

: *.

——_——

BAY 2U Pt 12

e*} .

Vee

BY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SANDRA K. FORNEY,

Plaintiff(s),

Vv.

SECRETARY, DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

Defendant(s).

— =" ee a a a a

Based on the record,

CIVIL NO. 94-6357 JO

JUDGMENT

IT IS ORDERED AND ADJUDGED that this case be remanded to the Secretary

for further proceedings.

DATED: May 24, 1995

JUDGMENT

~ US.

CT JUDGE

Appendix - Page 14

IA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SANDRA K. FORNEY,

Civil No. 94-6357-J0

OPINION AND ORDER

Plaintiff,

Vv.

SECRETARY, DEPARTMENT OF HEALTH

AND HUMAN SERVICES,

)

)

)

)

)

)

)

Defendant. )

Ralph Wilborn

1580 Valley River Drive, Suite 170

Eugene, OR 97401

Attorney for Plaintiff

Kristine Olson

United States Attorney

‘ District of Oregon

Craig J.

Assistant United States Attorney

UNITED STATES ATTORNEY’S OFFICE

888 S.W. Fifth Avenue, Suite 1000.

Portland, OR 97204-2024

Richard Wetmore

DEPARTMENT OF HEALTH & HUMAN SERVICES

Region X

2201 Sixth Avenue, M/S Rx-10

Seattle, WA 98121

Attorneys for Defendant

JONES, Judge: ) :

Claimant Sandra Forney seeks judicial review of a final

decision of the Secretary of Health and Human Services denying

her application for supplemental security income benefits ("SSI")

under the Social Security Act. |

This Court has jurisdiction to review the Secretary’s

decision pursuant to 42 U.S.C. § 405(g). Following a careful

review of the record, this court concludes that the Secretary's

decision is not supported by substantial evidence and must be

remanded.

ADMINISTRATIVE HISTORY

Claimant applied for SSI on November 18, 1991, and was

initially denied benefits on February 10, 1992. The denial was

affirmed on reconsideration. On March 15, 1993, a hearing was

held before an Administrative Law Judge ("ALJ"). The ALJ found

that claimant was not disabled, and denied her benefits. The

Appeals Council granted claimant’s request for review and

remanded the claim to the ALJ on July 30, 1993.

After the second hearing on April 18, 1994, the ALJ again

denied claimant’s application for SSI. After the Appeals Council

denied review, the ALJ’s denial of benefits became the final

decision of the Secretary.

STANDARD OF REVIEW

This court must affirm the Secretary’s decision if it is

based on proper legal standards and the findings are supported by

substantial evidence on the record as a whole. "Substantial

2 - OPINION AND ORDER

Appendix - Page 16

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion." Tylitzki v.

Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The court must

weigh “both the evidence that supports and detracts from the

Secretary’s conclusion." Martinez v. Heckler, 807 F.2d 771, 772

(9th Cir. 1986). The Secretary’s decision must be upheld if it

is a rational interpretation of the evidence, even if there are

other possible rational interpretations. Magallanes vy. Bowen,

881 F.2d 747, 750 (9th Cir. 1989).

SUMMARY OF FACTS

At the time of the first hearing, claimant was 46 years old.

Claimant attended high school through the tenth grade and later

attained her GED in 1977. Her past work history includes

positions as a cook, baker, and kitchen manager for a school.

Dr. Cross, claimant’s treating physician, first diagnosed

the possibility of fibromyalgia on August 11, 1988. Claimant

showed signs of improvement and control over the fibromyalgia

from the first diagnosis until July 26, 1991. Thereafter, her

condition degenerated and Dr. Cross advised her to stop working

because of the pain generated by the fibromyalgia.

Upon the advice of her treating physician, claimant quit her

job. Claimant alleges that she is disabled due to the

fibromyalgia, also known as fibrositis, and low grade depression

stemming from her condition. .

On November 18, 1991, claimant applied for SSI benefits.

Claimant was examined by Dr. William Dudley as part of the

3 ~- OPINION AND ORDER

_—

Appendix - Page 17

disability determination process. Dr. Dudley concluded that

claimant’s condition did not preclude all work. Based on

Dr. Dudley’s findings, the Secretary denied benefits.

On reconsideration, the Secretary again denied claimant’s

request for disability benefits, based on reports by Dr. Cross

and by a clinical psychologist, Dr. Greenough, Ph.D. In his

report, Dr. Cross advised that claimant is restricted to a

maximum of 15 minutes of standing and 20 minutes of walking. He

also limited claimant from lifting more than 15 pounds, or

carrying that weight for more than 30 feet. Dr. Cross further

concluded that claimant could work for only two hours during an

eight hour day. Dr. Greenough diagnosed claimant with adjustment

disorder with depression and characteristics of a dependent

personality disorder.

At the hearing on January 13, 1993, a psychologist, Dr.

Isabelle Moser, Ph.D., and a vocational expert testified as

impartial experts. Both concluded from the evidence presented at

the hearing that claimant is capable of working with moderate

limitations. The vocational expert further testified that

claimant cannot return to her past relevant work.

Claimant testified that she lives with her husband in an

apartment. She exercises by walking two miles a day and by

participating in water aerobics. For social activities, claimant

visits with her family. Although claimant is able to do light

housekeeping and grocery shopping, her husband performs the heavy

work such as major grocery shopping and carrying laundry.

4 - OPINION AND ORDER

Appendix - Page 18

The ALJ concluded that claimant is not disabled and has the

residual functional capacity to perform work that does not

involve lifting more than 15 to 20 pounds or walking more than

two miles, and that’ allows her to stand and change position at

will. The ALJ doubted claimanct’s credibility as to the degree of

pain she currently suffers.

After claimant appealed the ALJ‘s decision, the Appeals

Council remanded the case for another hearing based upon its

conclusion that the evidence did not support the ALJ’s assessment

of the claimant’s residual functional capacity. On remand, the

ALJ was instructed to obtain a consultative general medical

examination.

The hearing on remand was held on March 15, 1994. Before

the hearing, Dr. Nancy Brennan, D.O., examined claimant at the

request of Disability Determination Services. Dr. Brennan’s

assessment of claimant’s fibromyalgia was consistent with

Dr. Cross‘s assessment. Both limit claimant’s lifting capacity

to 15 pounds, and standing or walking to 15-20 minutes without

interruption. Dr. Brennan also determined that claimant could

sit for six hours without interruption. Dr. Brennan further

limited claimant from kneeling, balancing, crouching, or

crawling, and from lifting, carrying, reaching over her head, or

handling objects heavier than a pound or two for any length of

time. Dr. Brennan also noted that claimant should limit

activities requiring reaching, pushing, and pulling. Dr. Brennan

advised that claimant should avoid surroundings that cause

external stress to her system. Finally, Dr. Brennan reported

that claimant demonstrates a lapse of concentration and memory.

Claimant, her husband, Dr. Peter Moulton, Ph.D., and a

vocational expert testified at the remand hearing. Claimant’s

testimony was substantially the same as in the first hearing, but

she added that she had difficulty concentrating due to her pain.

Her husband confirmed that testimony.

Dr. Moulton testified that claimant has a moderate

limitation on daily activities, a slight limitation on social

functioning, a high limitation in concentration, persistence or

pace, and no limitation of deterioration or decompensation. He

further testified that although claimant’s impairments seriously

limit her ability to function, they do not preclude work.

Dr. Moulton also testified that claimant has an adjustment

disorder brought on by pain from the fibromyalgia.

Although new evidence was presented at the second hearing,

the vocational expert’s testimony remained the same. The ALJ

posed a hypothetical based on the reports of Dr. Brennan and

Dr. Moulton. The vocational expert identified several jobs

Claimant could perform, such as telephone answering service

operator and order clerk.

SUMMARY OF THE ALJ’S FINDINGS

The ALJ employed a five-step “sequential evaluation" process

in evaluating claimant’s disability.’ The first step of the

process requires the ALJ to determine whether claimant has been

' 20 C.F.R. § 416.920(a).

6 - OPINION AND ORDER

Appendix - Page 20

engaged in substantial gainful activity since her alleged onset

of disability. Applying this criteria, the ALJ found that

claimant’s unsuccessful attempt to work after the onset of her

disability was not substantial gainful activity.

Second, the ALJ must determine whether claimant has "severe"

impairments which could impose more than a minimal limitation on

the claimant’s ability to perform basic work activities. Here,

the ALJ found claimant to have “severe” impairments.

Third, the ALJ determined that claimant’s impairments do not

meet or equal any criteria in the Listing of Impairments of the

musculoskeletal system because claimant did not provide

appropriate physiological or psychological findings according to

the listing requirements.

In the fourth step, the ALJ determine that claimant’s

impairme ‘s and consequent limitations prevented her from

returning to her past relevant work as a baker, kitchen manager,

or cook.

Last, the ALJ applied the Medical-Vocational Guidelines and

determined that claimant retained the residual functional

capacity for a modified range of light or sedentary unskilled

work. Accordingly, the ALJ concluded that claimant is not under

a "disability" as defined in the Social Security Act.

DISCUSSION

Claimant advances four arguments challenging the ALJ’s

findings. Claimant first argues that the ALJ failed to set forth

specific and legitimate reasons for rejecting Dr. Cross’s

7 - OPINION AND ORDER

: Appendix - Page 21

findings. Claimant next argues that the ALJ’s failure to make

specific findings concerning the lack of credibility in her

testimony is reversible error. Third, claimant asserts that the

vocational expert’s' testimony was based on a hypothetical that

did not include all of her limitations as described by her

treating physician. Finally, claimant exgees that the vocational

expert’s testimony is directly contrary to the Dictionary of

Occupational Titles and Selected Characteristics of Occupations

Defined in the Revised Dictionary of Occupational Titles.

DISCUSSION

I. The ALJ Properly Based His Conclusion on the Evidence

Presented.

In disability cases, the treating physician’s opinion is

given deference because the treating physician "’is employed to

cure and has a greater opportunity to know and observe the

patient as an individual.’" Magallanes, 881 F.2d at 751. A

treating physician’s opinion is not, however, necessarily

conclusive “as to either a physical condition or the ultimate

issue of disability." Jd, Indeed, "(t)he ALJ may disregard the

treating physician’s opinion whether or not that opinion is

contradicted." Jd, This is particularly true where the opinion

is “’brief and conclusionary in form with little in the way of

clinical findings to support [its} conclusion.’" Jd, (citation

omitted).

To reject the opinion of a treating physician, the ALJ must

make findings setting forth specific, legitimate reasons that are

based on substantial evidence in the record. "’The ALJ can meet

8 - OPINION AND ORDER

Appendix - Page 22

this burden by setting out a detailed and thorough summary of

the facts and conflicting clinical evidence, stating his

interpretation thereof, and making findings.’" Magallanes, 881

F.2d at 751, quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

Cir. 1986); see also Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.

1987).

Claimant testified that she is active for more than two

hours a day on a regular basis. That testimony ‘iirectly

contradicted Dr. Cross’s report that claimant could work no more

than two hours a day. Because of claimant’s contradictory

testimony, the ALJ rejected Dr. Cross’s opinion. The ALJ did not

err in rejecting Dr. Cross’s report on that basis.

II. The ALJ’s Finding that Claimant Lacked Credibility is

Substantiated by the Evidence.

Credibility determinations ordinarily we within the

province of the ALJ. See Fair v. Bowen, 885 F.2d 597, 604 (9th

Cir. 1989). However, “once the claimant produces objective

medical evidence of an underlying impairment, an adjudicator may

not reject a claimant’s subjective complaints based solely on a

lack of objective evidence to fully corroborate the alleged

severity of pain." Bunnell] _v. Sullivan, 947 F.2d 341, 345 (9th

Cir. 1991). Nonetheless, “an adjudicator may find the claimant’s

allegations of severity to be not credible (provided that) the

adjudicator * * * specifically makes(s} findings which support

this conclusion." Id. In his findings, the ALJ noted that

Claimant’s testimony was incongruous to her alleged pain:

9 - OPINION AND ORDER

She was capable of attention to all questions asked,

and her responses were rational, although somewhat

evasive. . .. [S)he no longer has headaches, and she

has reported improvement in her musculoskeletal pain to

her examining and treating physicians, in contrast to

her testimony.

The above reasons constitute specific findings and are

sufficient to support the ALJ’s conclusion that claimant’s

allegations of back pain were not credible.

III. The ALJ’s Hypothetical Questions were not Improper,

The ALJ’s hypothetical questions incorporated all of

Claimant’s relevant limitations as presented by Dr. Brennan and

Dr. Moulton. As stated above, the ALJ disregarded Dr. Cross’s

report because of claimant’s contradictory testimony. The ALJ

was not, therefore,«mequired to incorporate Dr. Cross’s findings

in the questions posed to the vocational expert. The ALJ’s

hypothetical questions were not improper.

Iv. The Vocational Expert’s Testimony is Contrary to Dr.

Because claimant proved that her condition prevents a return

to her previous occupation, the Secretary has the burden to show

that the claimant can engage in substantial gainful work in the

economy. Penny vy. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)

(citing Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984)).

Although Dr. Brennan reported th... claimant’s ability to

reach is impaired, the occupations identified by the vocational

expert require frequent or constant reaching. The ALJ did not

reject Dr. Brennan’s assessment that claimant’s ability to reach

is impaired. Consequently, the ALJ’s conclusion that claimant

10 - OPINION AND ORDER

Appendix - Page 24

UO) J

was capable of performing other substantial gainful activity was

not supported by substantial evidence because he only considered

occupations which require movement beyond claimant’s limitations.

Accordingly, the Secretary has not sustained her burden of

showing that claimant can engage in substantial gainful work in

the economy, and the case must be remanded.

CONCLUSION

Based on a review of the record, the Secretary did not

sustain her burden of proof in step five of the five-step

evaluative process in determining whether claimant is entitled to

benefits. IT IS ORDERED that this case be REMANDED to the

Secretary for further proceedings in accordance with this

opinion.

DATED this i ig day of April, 1995.

11 - OPINION AND ORDER

Appendix - Page 25

Ts

DEPARTMENT OF 13

HEALTH AND HUMAN SERVICES

Social Security Administration

OFFICE OF HEARINGS AND APPEALS

DECISION

CLAIM FOR

Period of Disability and

Sandra K. Forney Disability Insurance Benefits

(Claimant)

546-66-9538

(Wage Earner) (Social Security Number)

This case is before me on an order from the Appeals Council,

remanding the case for further proceedings, including a new

hearing. The claimant's application for disability insurance

benefits was filed on November 18, 1991. She alleged that she

had been disabled since June 7, 1991, due to fibrositis.

Following proper notice, a hearing was held on January 13, 1993,

in Bend, Oregon, after which I issued a decision denying

entitlement to benefits. The claimant, who was unrepresented at

the first hearing, has now obtained counsel, Philip H. Garrow,

Attorney at Law.

A supplemental hearing was held on March 15, 1994, in Bend,

Oregon, at which the claimant appeared personally and testified.

She was represented by her attorney. Leon Forney, the claimant's

husband, testified on her behalf. Peter G. Moulton, Ph.D.,

testified as a medical expert. Richard C. Ridenour testified as

a vocational expert.

In deciding whether or not the claimant is disabled, I must

follow a step-by-step evaluation process set forth in the

ations at 20 CFR 404.1520 and 416.920. The first step of

this process asks whether or not the claimant has engaged in

substantial gainful work activity since the alleged onset date of

disability. The claimant has continued to be unemployed since

her first hearing. Prior to that time, as noted in the previous

decision, she worked as a kitchen manager, baker and cook from

s 4, 1991 to October 2, 1991 and earned approximately

$1600 (Exhibit 10). Under the regulation at 20 CFR 404.1574(b),

Appendix - Page 26

Sandra K. Forney > 14

546-66-9538

I find that the claimant's work activity was an unsuccessful work

attempt and not substantial gainful activity. The claimant met

the insured status requirements of the Social Security Act on

June 7, 1991, her alleged onset date, and she will continue to

meet those requirements through December 31, 1995.

The second step in the evaluation process asks whether or not the

claimant has a "severe" impairment within the meaning of the

Social Security Act. An impairment is considered to be "severe"

if it imposes more than a minimal restriction on an individual's

capacity to perform work related activity (20 CFR 404.1521 and

416.921).

In December 1991, the claimant alleged that she was forced to

stop working because of continuous pain. However, she stated

that she did laundry once a week, cleaned the bathroom once a

week, did the dishes once a day, made the bed once a day, and

swept, mopped, and vacuumed occasionally. She also did shopping

for small food items and her husband helped her with shopping

once a week for larger articles. She walked up to two miles a

day and did water exercises.

At the supplemental hearing, the claimant testified that every

day except Sunday she does water aerobics and simple stretching

exercises. Also daily, she does some housework, approximately

one hour, makes one trip to the store, reads, and cooks meals,

although she sometimes burns pots when cooking dinner. She walks

five blocks three times a week to visit her parents, and her

children and grandchildren come to see her two to three times a

month. Walking causes burning in her muscles, but she does not

have any problems with her forearms. She described fatigue which

occurs between one and two p.m., and stated that she has to lie

down and rest then. She said that her doctor agrees that she

cannot return to work. Her medications include amitriptyline,

ibuprofen, Premarin, and Flexeril, and she does not have

headaches as long as she takes ibuprofen. She testified that she

could not sleep prior to the introduction of amitriptyline and

Flexeril, but now sleeps between 11:00 and 7:30 a.m. She said

that she feels more energetic mentally, but her concentration is

still poor.

The claimant's husband testified that he used to come home and

find the claimant crying. He stated that she cannot drive their

pickup truck and that he goes shopping with the claimant and

carries groceries.

Appendix - Page 27

et ae

Sandra K. Forney ™ 15

546-66-9538

The claimant's treating physician is Steven W. Cross, M.D. As

discussed in the previous decision, he has treated the claimant

since 1988, although her findings were minimal at that time. On

July 26, 1991, his chart notes reveal that her fibrositis and

hypertension were controlled. However, on October 7, 1991, he

reported that she was no longer able to work because the pain was

too great for the amount of time she spent on her feet. He

continued to describe her as incapable of working as a cook or a

baker through January 6, 1992, and said that she was unable to

stand for more than 15 minutes at a time, walk for more than 20

minutes at a time, lift more than 15 pounds, or carry more than

15 pounds for more than 30 feet. He stated that she could

"maybe" work two hours of an eight hour day. However, thereafter

he reported that the claimant was walking two miles a day and

doing water aerobics. She was able to sleep at night because she

took Flexeril and amitriptyline. A sedimentation rate, ANA test,

and a rheumatoid factor rate were all negative. On

August 14, 1992, Dr. Cross' diagnosis was fibrositis, presently

controlled, and he indicated that he would only need to see the

Claimant every three months (Exhibits 15, 19 and 21).

Additional evidence submitted by the claimant reveals that she

saw Paul H. Altrocchi, M.D., for complaints of headaches, neck

pain and back aches in 1985, and was prescribed short-term bed

rest and Robaxin (Exhibit 31). The claimant's disability

retirement was approved by the Oregon Public Employees Retirement

System on February 24, 1992 (Exhibit 33).

On May 4, 1992, the claimant saw James W. Greenough, Ph.D., for a

psychological assessment at the request of Disability

Determination Services. She gave the impression of at least

average intellectual potential, with some loss of memory and

concentration abilities secondary to her preoccupation with pain.

She described her mood as somewhat depressed, but less so since

she had been taking antidepressant medication over the last year.

The diagnoses were adjustment disorder with depression and

characteristics of a dependent personality disorder (Exhibit 16).

In September 1992, the claimant saw Terry L. Schrader, M.D., for

a psychiatric evaluation, at which she reported that she had been

unable to continue working as a cook/manager since October 1991.

She described herself as initially in a state of denial and

stated that she experienced a certain amount of depression, but

was now following an active schedule pursuant to her doctor's

orders. She found walking up to two miles a day, water exercise,

and a jacuzzi tub to be the most helpful. She took a lot of time

CT.ATMR POT.NRR

Appendix - Page 28

Sandra K. Forney ——

546-66-9538

to do her housework, but she got it done. She slept between

midnight and seven or eight a.m., and usually rested during the

day. Her medications included amitriptyline, Flexeril,

ibuprofen, Premarin, and an anti-hypertensive medication, and she

described them as helpful, although the amitriptyline caused mild

side effects such as a dry mouth. Dr. Schrader found her MMPI

profile to be valid, with no evidence of a tendency to exaggerate

her symptoms, and consistent with mild depression and her

diagnosis of fibrositis. The claimant believed that her pain

management was better than it was a year ago, although she still

had pain complaints. She stated that pain "no longer controlled

her life" (Exhibit 32).

On December 6, 1993, the claimant saw Nancy L. Brennan, D.O., for

a physical examination at the request of Disability Determination

Services. The claimant described her two major complaints as

generalized muscular pain and muscular weakness. On physical

examination, Dr. Brennan noted slow gait, but no foot drop or

antalgic gait, and she was able to balance herself on one foot.

She had a significant number of tender points, consistent with

fibromyalgia. She had reduced range of motion of her shoulder

and gross tremor of the tested extremity with exertion. Her

cervical range of motion was normal; however, when she flexed her

lumbar spine greater than 90 degrees, she did not have the muscle

strength to pull her trunk erect and used her hands to "walk" up

her thighs. Her quadriceps were unable to raise her body from a

squatting position; she had difficulty rising from a low seated

position; and she was unable to perform this maneuver

repetitiously. Dr. Brennan opined that the claimant would be

unable to sit, stand, or walk for any appreciable length of time

without shifting or weight or moving about to a new position.

She was sure that she would be unable to lift, carry, reach over

her head, or handle objects heavier than a pound or two for any

length of time. She also exhibited a lapse of concentration and

some lapses in her memory (Exhibit 34, pages 1-4).

However, on a medical assessment of the claimant's ability to do

work-related activities, Dr. Brennan stated that the claimant

could occasionally lift 10-15 pounds, could stand/walk for a

total of two to three hours in an eight hour day, 15 minutes at

one time, and could sit for a total of six hours in an eight hour

day, 45 minutes at one time. However, she noted that the

limitations on sitting were by patient-given history, and there

was no evidence of limitation on examination. She thought the

Claimant could occasionally climb and stoop, but never kneel,

balance, crouch or crawl. She said that reaching and pushing and

erTaTue BAT neD

Appendix - Page 29

Sandra K. Forney x | 17

546-66-9538

pulling would aggravate the claimant's trigger points. She noted

that the claimant should not be around temperature extremes or

noisy environments, because external stress to the system often

causes exacerbation of fibromyalgia symptoms (Exhibit 34).

Dr. Cross' chart notes reveal that he saw the claimant in March

1993 for a follow up on her blood pressure, which needed

medication adjustment, and in April 1993, for a follow up on her

fibrositis. In April she reported that she was feeling better on

Daypro, and having less burning in her stomach. In July 1993 she

revealed that she was walking two miles a day, doing water

aerobics, and taking her medication. She did some housework,

usually dishes, and occasionally had a day where she could clean

the whole house, but then would suffer for it the next day. She

was maintaining a good attitude and Dr. Cross described her

fibromyalgia as chronic and stable. On October 27, 1993,

Dr. Cross reported that she was still ne and on

February 1, 1994 he stated that she was doing six days a week of

water aerobics and staying active. She said that she did not

want to end up like other people with the problem in wheelchairs

and walking aids. At the last notation, her medications included

ibuprofen, amitriptyline, Premarin, and calcium (Exhibit 37).

On February 9, 1994, the claimant received a physical capacity

evaluation from Physical Therapy Associates. The claimant

described morning stiffness and symptoms primarily aggravated by

prolonged static posture or bending and lifting activity. Her

current daily activities included minimal housework with delayed

soreness, water aerobics class, and walking up to two miles per

day. The claimant demonstrated significant deconditioning in her

extremities and trunk for repetitive bending, sustained

stand/walk, and repetitive materials handling tolerance. The

evaluator thought that the claimant was limited to part-time

sedentary work; however, of the three factors considered, only

one involved consideration of her "poor to fair" pain management.

The other two were her deconditioning and her — of time off

of work (Exhibit 38). The claimant's deconditioning for

repetitive materials handling, the only portion applicable to

sedentary work, was based upon her performance on timed tests

which are subject to 1 ne pee exertional efforts and possibly

distorted results. itionally, deconditioning may be related

to the time lapsed since active re Although considered

a factor for certain portions of disability assessment, such as

the transferability of acquired work skills from jobs which were

performed over 15 years in the past, the relatively short period

of time the claimant has been unemployed would not be a factor in

Appendix - Page 30

Sandra K. Forney ; 18

546-66-9538

her evaluation for Social Security purposes. Therefore, although

the claimant's limitation to sedentary or limited light work has

been established and confirmed by observation and is not unusual

for her dia is, her limitation to part-time work found by this

evaluation is considered to be based upon subjective factors

within the control of the individual. As will be further

discussed below, I find that the claimant is prone to

eration of her restrictions and subjective symptomatology,

and that therefore a limitation to part-time work is not

reasonable under the circumstances and not supported by the other

evidence of record.

At the hearing, Peter Moulton, Ph.D., testified as a medical

expert. He stated that the claimant's diagnoses are fibrositis

and mild dysthymia, which has been helped by medication. He

thought that she had moderate limitations on her activities of

daily living and slight difficulties in maintaining social

functioning, but that she often had deficiencies of

concentration, persistence, or pace. He said that she was

moderately limited in her ability to understand, remember and

carry out detailed instructions, her ability to maintain

attention and concentration for extended periods, and in her

ability to perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerances. He did

not think that she was significantly limited in any other

categories.

Upon consideration of the evidence in its entirety, I find that

the record establishes a combination of severe impairments that

impose more than a minimal limitation on the claimant's ability

to perform basic work activities (Exhibit 25 and 20 CFR

404.1520(c), 404.1520a(c) and 404.1521). However, these

impairments do not meet or 1 any of the criteria of the

Listing of Impairments conta in Appendix 1, Subpart P,

Regulations No. 4.

The claimant's fibrositis has been evaluated under the Listings

at 1.00 et geg. for the musculoskeletal system. Other than

complaints of rat the claimant does not have the iate

calle

mental yg mee does not meet equal the requirements of

of iepatansthe for mental Glecuhine. as documented in the

ev of record and confirmed by Dr. Moulton's testimony. A

Sandra K. Forney ; 49

546-66-9538

this determination and is attached to this decision. As

disability is not established pursuant to the criteria of 20 CFR

416.920(d), further evaluation in this claim requires an

assessment of the claimant's residual functional capacity.

In assessing the claimant's residual functional capacity,

consideration has been given to the claimant's testimony

regarding pain and discomfort. Pain, when associated with a

medically determinable impairment which could produce pain, may

be of such severity as to cause an individual to be under a

"disability." However, the inability of a claimant to work

without some pain and discomfort does not necessarily satisfy the

test for disability under the provisions of the Act. Kroeneke vy.

Richardson, 363 F.Supp. 891 (D.Or.1973); Valdez v. Heckler, 616

F.Supp. 933, 940 (D.C.Cal.1985).

As noted in Social Security Ruling 88-13, the related "symptoms"

of pain are the individual's own perception of the effects of the

physical or mental impairment. Because of the subjective

characteristics of symptoms and the absence of reliable

techniques for measurement, symptoms (especially pain) are

difficult to prove, disprove or quantify. This ruling notes a

need for a sound medical basis for the disability decision as

well as consideration of the claimant's symptoms. The ruling,

which is binding upon an Administrative Law Judge in the

consideration of symptoms (including pain) in the evaluation of

disability cases (20 CFR § 422.406(b)(1)), reiterates the policy

set forth in the Social Security Regulations (20 CFR § 404.1529

and § 416.929), which provide that pain cannot be found to have a

significant effect on a disability decision unless medical signs

or laboratory findings show that a medically determinable

physical or mental impairment is present that reasonably could be

expected to produce the pain alleged.

In determin the level and severity of pain, pertinent evidence

has been considered such as: descriptions of the claimant's

daily activities; frequency, amounts and effects of any

medications; the claimant's and credibility; an

comments of physicians appear of record; objective clinical

laboratory findings, or the lack thereof; and the existence or

nonexistence of any observable signs or significant pathological

abnormalities associated with and resulting from severe and

intense pain. If it is found that a claimant's testimony

relat to the intensity of his or her pain and other

limitations is unreliable, a credibility determination is to be

made citing the reasons why the testimony is unpersuasive.

CLAIMS FOLDER

Appendix - Page 32

i

Sandra K. Forney 20

546-66-9538 nf

Bunnell vy. Sullivan, 947 F.2d 341 (9th Cir. 1991). In this

regard, questions of Sa resolutions of conflicts in

the test are functions solely of the Secretary. Yuckert y.

Bowen, 841 F.2d 303, 307 (9th Cir.1988); Sample vy. Schweiker, 694

F.2d 639, 642 (9th Cir.1982); Waters vy. Gardner, 452 F.2d 855,

858 n.7 (9th Cir.1971).

In accordance with the criteria set forth above, the record fails

to document incapacitating symptomatology to the extent and

degree alleged by the cla t. The record reflects significant

discrepancies and/or omissions between the claimant's reports to

various medical personnel and to the Agency. She alleges severe,

incapacitat pain in one instance, and then, on another, states

that her condition has undergone significant improvement with

treatment and medication. She told Dr. Schrader that her pain

management was better than it was a year previously, and that

pain no longer controlled her life, a statement which is

substantially reproduced in her reports to Dr. Cross, and yet she

told Dr. Brennan that her generalized muscular pain was a "10" on

a scale of 1 to 10. In the latter instance, she was aware that

she was undergoing a physical examination with emphasis on

evidence of fibrositis and its severity.

While it is essentially uncontroverted that the claimant is

incapable of returning to work as a managerial cook, work which

she described as involving standing up to seven hours a day and

frequently lifting up to 50 pounds (Exhibit 9), despite her

allegations, the record does not establish the legitimacy of her

other complaints. Even after considering her assertions of

extreme pain, Dr. Brennan found that she was capable of sitting

for up to six hours a day, walking or standing up to three hours

a day, and occasionally lifting 10 to 15 pounds. The physical

capacities evaluation likewise found that she was capable of

sedentary work, and, al a further reduction to part-time

work was noted, that reduction was based upon tests which are

capable of distortion based upon equivocal effort, as previously

The claimant's activities are commensurate with a capacity for

sedentary work, and even occasional light work. Another example

of her somewhat misleading is that she failed to

mention at the hearing that she can occasionally clean her whole

house in one day. Her list of daily activities is quite broad,

Appendix - Page 33

Sandra K. Forney a. |

546-66-9538

extensive activities several times a week. The record does not

rt a conclusion that she must lie down for a protracted

period every day, and Dr. Brennan did not note such a significant

disruption in her ability to perform activities during the day.

Therefore, I conclude that this resting period is not medically

imperative.

I do not find the claimant's testimonial reports or subjective

reporting of her capacity to be the most reliable evidence of

record upon which to base an assessment of her residual

functional capacity. The only physician to currently render a

physical capacities evaluation is Dr. Brennan, and her assessment

indicates that the claimant is capable of working. Dr. Cross has

not recently expressed an opinion, and subsequent to his

statement that the claimant might be limited to two hours per day

(with apparent reference to her work as a cook), he has

repeatedly reported that her condition has improved or

stabilized. Even the claimant herself acknowledges that she is

capable of more activity than that encompassed by two hours per

day. In fact, she does at least two hours of work per day at an

exertional capacity beyond sedentary, if both her housework and

her exercise routine are considered. Although the claimant

stated that her doctor supports her contention that she cannot

return to work, it is conceded that she cannot return to work as

a baker or a cook. Other work is not precluded by a statement

that she could not return to work she had been doing in the past.

The claimant's demeanor at the hear was not indicative of an

individual who is experiencing disabling incapacity; she did not

appear to be in pain or require a period in which to rest. She

was capable of attention to all questions asked, and her

responses were rational, although somewhat evasive. Her

medications are very conservative, but even this conservative

treatment has produced considerable relief of her symptoms. For

example, she no longer has difficulty sleeping mw oor gy (0 she no

longer has headaches, and she has reported improvement her

musculoskeletal pain to her examining and treating physicians, in

contrast to her testimony. consideration of the evidence in

its entirety, I find that the subjective reports of the claimant

and her witness are not credibly supported by the weight of the

evidentiary record to the extent alleged pursuant to the criteria

of SSR 88-13.

I find that the claimant is capable of sedentary or light work

within the ranges described below; however, based upon the

testimony of the vocational expert at the hearing, and as

Appendix - Page 34

Sandra K. Forney 7 22

546-66-9538 -

previously discussed above, this precludes the performance of her

past relevant work. If the claimant cannot return to her past

relevant work, then the Secretary must assume the burden of

show that despite her impairments and in light of her age,

education and work experience, there is still other work she can

perform, which exists in significant numbers in either the

Claimant's regional economy or in the national economy or both.

At the hearing, Richard Ridenour testified as a vocational

expert. Although he stated that the claimant could not perform

her past relevant work as a head cook, a baker, or manager of a

school lunch room program if she were limited to the sedentary or

light exertional level, he testified that the claimant has

acquired skills from that work which are transferable to other

semi-skilled work. He identified these skills as involving

public contact and service to the public. The claimant is 47

years old and has the equivalent of a high school education. She

was 44 years old at her alleged onset date. Given a hypothetical

question limiting the claimant to work that does not involve

lifting more than 15 to 20 or walking more than two miles,

and which allows her the ability to stand and change position at

will, and also considering her vocational factors, Mr. Ridenour

testified that the claimant could perform work as an order clerk

and a telephone answering service operator. Given an additional

hypothetical question limiting the claimant in accordance with

the functional capacity assessment described by Dr. Brennan and

further considering the limitations described by Dr. Moulton at

the hearing, in addition to her vocational factors, Mr. Ridenour

testified that she could still perform the jobs in question.

Finally, given a hypothetical question based upon the physical

capacity evaluation performed by Physical Therapy Associates,

found in Exhibit 38, in addition to the same psychological

limitations and vocational factors, Mr. Ridenour's testimony

remained unchanged. As I have determined that the claimant can

perform sedentary work as described on a full-time basis, she

would be able to perform the jobs of order clerk and answering

service operator full-time. Mr. Ridenour testified that there

are over 850,000 such jobs in the national economy.

In summary, I find that the jobs delineated by the vocational

expert support a conclusion that the claimant has had the ability

to perform a wide range of work existing in significant

numbers in the national economy dur the iod relevant to

this adjudication. Therefore, the of Rules 201.21 and

201.22 of Appendix 2, Subpart P, Regulations No. 4 directs a

Appendix - Page 35

Sandra K. Forney

546-€6-9538

11

conclusion that she is not under a disability. Accordingly, I

find that the claimant is "not disabled," as defined by the

Social Security Act.

After careful consideration of the entire record, the

Administrative Law Judge makes the following findings:

1. The claimant met the disability insured status

requirements of the Act on June 7, 1991, the date the

Claimant stated she became unable to work, and will

continue to meet them through at least

December 31, 1995.

2. The claimant has not engaged in substantial gainful

activity since June 7, 1991.

3. The medical evidence establishes that the claimant has

a combination of severe impairments, but that she does

not have an impairment or combination of impairments

listed in, or medically equal to one listed in Appendix

1, Subpart P, Regulations No. 4.

4. The claimant's testimony, and that of her husband, was

not fully credible.

5. The claimant has the residual functional capacity to

perform work as described in the decision above (20 CFR

404.1545).

6. The claimant is unable to perform her past relevant

work as a head cook, a baker, and a manager of a school

lunch room progran.

7. The claimant's residual functional capacity for the

full range of sedentary work is reduced by the

limitations described the decision above.

8. The claimant is 47 years old, which is defined as a

younger individual (20 CFR 404.1563).

9. The claimant has the equivalent of a high school

education (20 CFR 404.1564).

are Tues BAT hen

Appendix - Page 36

Sandra K. Forney

546-66-9538

10.

il.

12.

13.

12

Consider the claimant's younger age, transferability

of skills is not a material factor in the determination

of disability; however, the claimant has acquired work

skills which are transferable to other semi-skilled

work, such as working with and serving the public.

Based on an exertional capacity for sedentary work, and

the claimant's age, education, and work experience,

section 404.1569 and Rules 201.21 and 201.22, Table No.

1, Appendix 2, Subpart P, Regulations No. 4 would

direct a conclusion of "not disabled."

Although the claimant's additional nonexertional

limitations do not allow her to perform the full range

of sedentary work, at the hearing a vocational expert

testified that there are a significant number of jobs

in the national economy which she could perforn.

Examples of such jobs are: food and beverage order

clerk and telephone answering service operator. There

are over 850,000 such jobs in the national economy.

The claimant was not under a "disability," as defined

in the Social Security Act, at any time through the

date of this decision (20 CFR 404.1520(f)).

| ATATVWOS BAT nen

Appendix - Page 37

——ee =

Sandra K. Forney 25

546-66-9538 -

DECISION

It is the decision of the Administrative Law Judge that, based on

the application filed on November 18, 1991, the claimant is not

entitled to a period of disability or disability insurance

benefits under sections 216(i) and 223, respectively, of the

Social Security Act.

P - KRAMER

Administrative Law Judge

APR | 8 94

Date

“TATMUS BAT HSS

Appendix - Page 38

“_,

Nowe

ee

DEPARTMENT OF HEALTH & HUMAN SERVICES Social Security Administration

Refer to: S3GCM Office of Hearings and Appeals

546-66-9538 5107 Leeshurg Pike

Falls Church, VA 22041-3255

ACTION OF APPEALS COUNCIL ON REQUEST FOR REVIEW

Ms. Sandra K. Forney

61354 Blakley, Apt Al

Bend, OR 97702

Dear Ms. Forney:

The Appeals Council has considered the request for review of the Administrative Law

Judge’s decision issued on April 18, 1994.

Social Security Administration regulations provide that the Appeals Council will grant a

request for review where: (1) there appears to be an abuse of discretion by the

Administrative Law Judge; (2) there is an error of law; (3) the Administrative Law

Judge’s action, findings, or conclusions are not supported by substantial evidence; or (4)

there is a broad policy or procedural issue which may affect the general public interest.

The regulations also provide that where new and material evidence is submitted with the

request for review, the entire record will be evaluated and review will be granted where

the Appeals Council finds that the Administrative Law Judge’s actions, findings, or

conclusion is contrary to the weight of the evidence currently of record

(20 CFR 404.970).

The Appeals Council has concluded that there is no basis under the above regulations

for granting your —- for review. Accordingly, your request is denied and the

Administrative Law Judge’s decision stands as the final decision of the Secretary in your

case. Inr this conclusion, the Council has considered the applicable

Statutes, regulations, and rulings in effect as of the date of this action.

The Appeals Council considered your attorney's brief dated June 8, 1994. He contended

that the Administrative Law J pte te fen be . i

evidence; that he did not

The decision contains extensive rationale on the conclusions cites

clinical me Ep Ieper been emt orm pir te

’ no s brief for

changing the decision. ~

Appendix - Page 39

oe

If you desire a court review of the Administrative Law Judge’s decision, you may

commence a civil action by filing a complaint in the United States District Court for the

judicial district in which you reside within sixty (60) days from the date of the receipt of

this letter. It will be presumed that this letter is received within five (5) days after the

date shown above unless a reasonable showing to the contrary is made. The complaint

should name the Secretary of Health and Human Services as the defendant and should

include the Social Security number(s) shown at the top of this notice. The right to court

review is provided for in section 205(g) of the Social Security Act, as amended

(42 U.S.C. 405(g)).

If you cannot file your complaint within 60 days, you may ask the Appeals Council to

extend the time in which you may begin a civil action. However, the Council will only

extend the time if you provide a good reason for not meeting the deadline. Your

reason(s) must be set forth clearly in your request.

If a civil action is commenced, the Secretary must be served by sending a copy of the

summons and complaint by registered or certified mail to the General Counsel of the

Department of Health and Human Services at 200 Independence Avenue, S.W.,

Washington, D.C. 20201. (See rules 4(c)(2) and (d)(4) and (5) of the Federal Rules of

Civil Procedure and Part 45, Section 4.1 of the Code of Federal Regulations.) In

addition, you must serve the United States Attorney for the district in which you file

your complaint and the Attorney General of the United States, as provided in the

Federal Rules of Civil Procedure.

Sincerely yours,

ORIGINAL SIGNED BY

Peter A. Greenlee

Administrative Appeals Judge

cc:

Philip H. Garrow, Esq.

HO, Eugene, OR (ALJ Kramer)

Appendix - Page 40

NOT FOR PUBLICATION F | | F D

IN THE UNITED STATES COURT OF APPEALS MAY 29 1997

FOR THE NINTH CIRCUIT

QUHYA Ce

Us COUR! OF WLS

SANDRA K. FORNEY,

Plaintiff-Appellant,

CA No. 94@-35560

Vv DC No. -94-06357

SHIRLEY S. CHATER, Secretary,

Commiseioner, Socie! Security’

Administration, ORDER

Defendant -Appellee.

ee ee ee ee ee ee ee ee ee

.

‘BEFORE: CANBY, RYMER and KLEINFELD, Circuit Judges

Appellant’s petition for rehearing is DENIED.

Appendix - Page 41