Petition for Writ of Certiorari — Saelee v. Chater
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sa Supreme Gourt, U.S.
FILED
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96 902 DEC 5 19%
In The
Supreme Court of the United States
October Term, 1996
+
CHIAD SAELEE,
Petitioner,
SHIRLEY S. CHATER, Commissioner,
Social Security Administration,
Respondent.
Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
+
PETITION FOR A WRIT OF CERTIORARI
#
RaLPpH Wivsorn, Attorney at Law
Counsel of Record For Petitioner
RALPH WILBORN & Etta L. Wisorn, P.C.
1580 Valley River Drive, Suite 170
Eugene, Oregon 97401
(541) 485-4265
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Where the claimant in a Supplemental Security
Income disability benefits case bears the burden of proof
in establishing disability, and where the agency’s regula-
tions provide claimants the right to be represented by an
attorney, does the ALJ impermissibly deny the claimant
due process, the right to counsel, and/or the right to
effective assistance of counsel, when he rejects a medical
opinion on the grounds that it was solicited by the claimant's
attorney for the purposes of the administrative hearing?
2. In Supplemental Security Income disability benefits
cases, 20 C.F.R. § 416.912(e)(1) requires the adjudicator to
“ ... seek additional evidence or clarification from [the
claimant’s] medical source when the report from [the
claimant’s] medical source contains a conflict or ambi-
guity that must be resolved, the report does not contain
all the necessary information, or does not appear to be
based on medically acceptable clinical and laboratory
diagnostic techniques . . . ” Without first complying with the
foregoing regulation, may an administrative law judge
reject the disability opinion of a claimant’s physician on
the grounds that there appears to be no objective medical
basis for the opinion or that it contains conflicts or ambi-
guities?
3. The Social Security Act “contemplates that disability
hearings will be individualized determinations based on
evidence adduced at a hearing.” Heckler v. Campbell, 461
U.S. 458, 467, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66, 74
(1983).
il
QUESTIONS PRESENTED - Continued
Where, as here, in finding the claimant not disabled, the
administrative law judge relies on_racially and/or eth-
nically biased reports of a one-time consultative examiner
and a non-examining medical advisor, does the ALJ
deprive the claimant of equal protection and/or the right
to an individualized determination because the deter-
mination is based on impermissible considerations of race
and/or ethnicity?
4. In a Supplemental Security Income disability benefits
case where the claimant, who is illiterate in all languages
and who speaks only Mien, undergoes a psychiatric
examination by an English speaking psychiatrist, does the
administrative law judge deny the claimant due process
by basing a claim denial on the psychiatrist’s report when
the psychiatrist conducts the claimant’s psychiatric exam-
ination using an interpreter who speaks “only Hmong,
Laotian, and English, the latter minimally;” and when the
interpreter must relay the psychiatrist’s questions
through the claimant’s friend who speaks only “Mien,
Laotian, and a “smattering of English?”
5. Can the psychiatric report resulting from the imme-
diately above-detailed examination constitute substantial
evidence?
iil
TABLE OF CONTENTS
Page
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APPENDIX TABLE OF CONTENTS................ vii
PETITION FOR A WRIT OF CERTIORARI......... 1
i el se ShSeh ss ce cek ve6deesadesss 1
GROUNDS FOR JURISDICTION ............-..000. 2
REGULATIONS INVOLVED IN THIS CASE........ 3
PRIRRMOEMEE SIP SEEM GAGE 5c csscnnccncercenesece 3
THE CONSULTATIVE PSYCHIATRIC EXAMINA-
ET PURO RCE ile kan We akndc kécvesebocsccsosves 6
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eS er 12
THE OPINION OF THE NINTH CIRCUIT COURT
ES No aie oop cobb icee vhs os 40b%0005 12
REASONS FOR GRANTING THE WRIT: ARGU-
iv
TABLE OF CONTENTS - Continued
Page
THE NINTH CIRCUIT DECISION CONDONES
DENYING DISABILITY CLAIMANTS DUE PRO-
CESS, THE RIGHT TO COUNSEL, AND THE
RIGHT TO EFFECTIVE ASSISTANCE OF COUN-
SEL BY PERMITTING ALJS TO REJECT A TREAT-
ING PHYSICIAN’S OPINION, IN PART, BECAUSE
IT WAS OBTAINED BY THE CLAIMANT’S
ATTORNEY FOR PURPOSES OF THE ADMINIS-
STRATA EG Seas 0 6 sd ov dvite panies eeheeenesss 15
THE NINTH CIRCUIT HOLDING RENDERS
MEANINGLESS THE AGENCY’S REGULATIONS
IMPOSING UPON DISABILITY ADJUDICATORS
THE DUTY TO CONTACT AND RECONTACT
DISABILITY CLAIMANTS’ MEDICAL SOURCES
BEFORE REJECTING OPINIONS OF THOSE
SOURCES ON THE GROUNDS THAT THE OPIN-
IONS CONTAIN CONFLICTS, ARE AMBIGUOUS,
OR ARE NOT SUPPORTED BY OBJECTIVE MEDI-
CARs EVM 5 6 edo sisa cxanns$cets Reins bere 21
THE NINTH CIRCUIT HOLDING AFFIRMS THE
ALJ’S DEPRIVING THE CLAIMANT OF EQUAL
PROTECTION AND OF AN INDIVIDUALIZED
DISABILITY DETERMINATION BY ALLOWING
THE ALJ TO BASE THE DETERMINATION ON
IMPERMISSIBLE CONSIDERATIONS OF RACE
PITRE EET ES Fo oo cbs ahs kes cdn sveatceees 24
RAITT is 6 be Aae eee RAT CRASL Ov dans Feee een 28
Vv
TABLE OF AUTHORITIES
Page
CASEs
Bowen v. Yuckert, 107 S.Ct. 2287 (1987) ........... 15, 16
Burkhart v. Bowen, 856 F.2d 1335 (9th Cir. 1988) ..... 18
Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76
eR Re A ee rae Pre a ee 27
Miles v. Chater, 84 F.3d 1397 (11th Cir. 1996)...... 20, 21
STATUTES
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REGULATIONS
ye MS > Se a rn rs nae ee eee 3, 23
Se a ca ER 5 Se Sheek a bee kee he ee ens 16
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PE EOE soci vecteassasuasiatans tm 2
eS I bss ie v'h oo 65:04 se cusee kbd one buden 3, 19
ee ns ae EOD 5 i vob cs ac cenakbeved tains 17, 18
EN sis by ka od 600 6 bbe eXSE Abas KO 3, 23
Bi ook ok coho ccc 23
vi
TABLE OF AUTHORITIES — Continued
Page
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20 CER. Gi Fae cranks acke ects ees eek cas cca vies 19
2 CBR. © Ga ob ine ea ha cree ine an desagess 19
OTHER
Diagnostic and Sta:istical Manual of Mental Disor-
ders, Third Edition, Revised (1987) (DSM-III-R)
eee et eer 6, 11, 26
Dorland’s Illustrated Medical Dictionary, 26th Edi-
PEPER ee ee ane FEO rey eee 4
Supreme Cotert TIGG6 Ga si cisc os tenes exec easeeeer ees 2
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Vii
APPENDIX TABLE OF CONTENTS
APPENDIX PAGE
Order And Amended Opinion, U.S. Court of
Appeals For The Ninth Circuit, filed August 12,
i ERENT oe OL TE CE Te tee E EE ET OF ETT ETOET App. 1
Judgment In A Civil Action, U.S. District Court,
WO TUE Boy. SEP ica is sy akeivsescoensaivens App. 11
Order Adopting Report And Recommendation Re:
Plaintiff’s Motion For Summary Judgment
And/Or Remand And Defendant’s Cross-
Motion For Summary Judgment, July 14,
aoe Pe NY AROS EOL Ra Rig ae Rap pore App. 12
Report And Recommendation Re: Plaintiff's
Motion For Summary Judgment/Remand And
Defendant’s Cross-Motion For Summary Judg-
a IE BU SRP ivckdi ss dentesnccsd ests App. 18
Action of Appeals Council on Request for Review,
SS OE I SP ei ace ceenvetvesineuces App. 31
Decision of Administrative Law Judge, dated July
i ee koe Es PACS erro ke buen vik dake ea ea ees App. 34
Order denying Appellant's petition for rehearing
and rejecting the suggestion for rehearing en
banc, U.S. Court of Appeals For The Ninth Cir-
cuit, filed September 6, 1996................. App. 58
i EE Sins sc tiibavvissnscennivakan App. 59
ME SEED cones cccscvaadurbecseuct hens App. 63
a ED icc ga cs sbe es tacscoccesvenacs App. 67
BF NnBiiee GEO DE wise cstneceecs err Tere ees App. 73
Viii
APPENDIX TABLE OF CONTENTS - Continued
Letter from Attorney Ishikawa to Dr. Aleman,
August 1, IFFD....ccevcsscccvccccnnseenasees App. 75
Letter from Dr. Aleman to Attorney Ishikawa ..App. 76
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Chiad Saelee, respectfully petitions this
Court to issue a writ of certiorari to review the August 12,
1996, Order and Amended Opinion of the United States
Court of Appeals for the Ninth Circuit affirming the final
decision of the Commissioner of the Social Security
Administration! which denied Petitioner’s application for
Supplemental Security Income (SSI) disability benefits.
+
OPINIONS BELOW
Following mesne administrative proceedings, by
decision dated July 27, 1992, an administrative law judge
(ALJ) found that Petitioner was not disabled and not
eligible for SSI disability benefits. (App. 34-57). On March
9, 1993, the Appeals Council of the Social Security
Administration declined to review the ALJ’s decision.
(App. 31-34). This action resulted in the ALJ’s decision
becoming the agency’s final decision.
Petitioner appealed to the U.S. District Court for the
Eastern District of California where a magistrate judge
1 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 administrative decision in this case, the
undersigned refers to “the Commissioner” throughout this
petition for the sake of convenience.
recommended affirming the ALJ’s decision in a report
and recommendation filed March 16, 1994. (App. 18-30).
On July 14, 1994, the Honorable Oliver W. Wanger, U.S.
District Judge, adopted the magistrate judge’s report and
recommendation. (App. 12-17). Judgment in the district
court was filed July 15, 1994. (App. 11). Petitioner then
appealed to the U.S. Court of Appeals for the Ninth
Circuit. By opinion filed May 9, 1996, (reported at 88 F.3d
322) and amended by order and opinion filed August 12,
1996, (reported at 94 F.3d 520) the court of appeals
affirmed the ALJ’s decision finding Petitioner not dis-
abled. (App. 1-10).
By Order filed September 6, 1996, the U.S. Court of
Appeals for the Ninth Circuit denied Petitioner’s petition
for rehearing and rejected the suggestion for rehearing en
banc. (App. 58).
GROUNDS FOR JURISDICTION
The Order and Amended Opinion of the U.S. Court
of Appeals for the Ninth Circuit was entered August 12,
1996. (App. 1-10). Petitioner’s petition for rehearing was
denied by Order filed September 6, 1996. (App. 58). This
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 and 30.1. The jurisdiction of
this Court is invoked pursuant to 28 U.S.C. § 1254(1).
I re SO NE Nil, cg tg ig ins Pa Kt gen SW AA Mie INO. Re A ADM BAC. Fil ete tll?
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Ben a ie PS aR DN AN ae WON acratts whine Fi AEM Se
REGULATIONS INVOLVED IN THIS CASE
The following regulations are involved in this case.
Because they are voluminous, they are set out in full in
the Appendix beginning at the designated pages.
20 C.ER. § 416.912. ......0 cece cere creer rereees App. 59
20 C.ER. § 416.913. ....... ec cece eee eer e eee eees App. 63
20 C.F.R. § 416.927......- cer eee sree cece eeerees App. 67
20 C.E.R. § 416.928. ....... eee eee eee cere eee eeee App. 73
*
STATEMENT OF THE CASE
Because Petitioner (hereinafter, Saelee) seeks review
of a judgment of the U.S. Court of Appeals for the Ninth
Circuit, she notes that the basis for federal jurisdiction in
the court of first instance, the U.S. District Court for the
Eastern District of California, was pursuant to 42 U.S.C.
§ 405(g), following issuance of a final decision by the
Commissioner of the Social Security Administration find-
ing Saelee not disabled and not eligible for SSI disability
benefits.
Saelee is a Laotian-born Mien. She speaks no English,
is illiterate in all languages, and has no formal education.
She seeks SSI disability benefits, pursuant to applications
filed in April, 1988, and December, 1989, on the basis of
combined physical and mental impairments.
Gary Graham, M.D., examined Saelee on 10/26/89,
and concluded “the patient has functional blindness in
both eyes...” On 1/15/90, he reported Dr. Chan also
had completed a neurological workup and concluded that
Saelee “had functional blindness.”
Dr. Porter examined Saelee on 1/12/90. Her right eye
vision was 20/200, but she admitted only light perception
in the left eye. Dr. Porter diagnosed astigmatism, myopic,
simple, mild, bilateral; pterygium, left; and amblyopia?,
probably due to hysteria or malingering. He concluded
that Saelee “is psychologically disturbed and that she is
unable to work because of this.”
Dr. Aleman began treating Saelee on 1/25/89. His
clinical assessments of Saelee’s medical problems
included insomnia from nightmares, hypertension; severe
bilateral hearing loss; chronic dizziness and possible ver-
tigo of middle ear origin; and chronic back pain related to
old trauma and degenerative joint disease. In March,
1989, he noted the “language barrier and the patient’s
tendency to somatisize makes the diagnosis even more
difficult.” In October, 1989, Dr. Aleman noted his suspi-
cion that Saelee was suffering from a psychosomatic dis-
order, and in February, 1990, he opined that her
symptoms of chest pain, dizziness and shortness of
breath seemed to be psychosomatic.
2 Amblyopia is “dimness of vision without detectable
organic lesion of the eye.” Hysterical amblyopia is “that which is
associated with hysteria.” Hysteria is a “psychoneurosis, the
symptoms of which are based on conversion and which is
characterized by lack of control over acts and emotions, by
morbid self-consciousness, by anxiety, by exaggeration of the
effect of sensory impressions, and by simulation of various
disorders.” Dorland’s Illust. Med. Dict. 26th Ed.
In preparation for her administrative hearing,
Saelee’s attorney asked Dr. Aleman to address “[w]hether
Ms. Saelee can perform sedentary work as defined by the
Social Security Administration.” He enclosed the defini-
tion of the term “sedentary” for Dr. Aleman’s review, and
he asked the doctor to support his opinion with clinical
and laboratory evidence. (App. 75-76).
Dr. Aleman responded on 8/9/90 by summarizing
the conditions for which he had been treating Saelee, and
concluded as follows:
I do not believe that any of these problems
individually would prevent the patient from
pursuing a sedentary job, however, her history
of lower back pain, leg pain, dizziness, hearing
loss, visual difficulties, depression, and anxiety
taken as a whole make it very unlikely that she
can realistically perform any sedentary job... .
The prognosis . . . is very poor.
(App. 77-78).
In a follow-up letter to Saelee’s attorney on 4/2/92,
Dr. Aleman wrote that Saelee’s medical conditions
remained essentially unchanged from that described in
his 8/9/90 letter, and that Saelee’s combined impair-
ments “make it very unlikely she can realistically perform
any sedentary job at this time.”
Saelee received treatment from Merced County Men-
tal Health (MCMH) from 5/21/90 through 2/4/92. Ini-
tially, through a Mien interpreter, she reported having
had a 7-year depression. The mental health staff assessed
her Global Assessment of Functioning (GAF) at a level of
45, with a high of 55° in the past year.
On 9/24/91, she was diagnosed as having a Somatiz-
ation Disorder and Dependent Personality Disorder, and
on 1/31/92, her physicians assessed her current GAF at
21 with a past year high of 314.
THE CONSULTATIVE PSYCHIATRIC EXAMINA-
TIONS:
At the agency’s request, Saelee underwent 3 consul-
tative psychiatric examinations, the first, on 6/7/88, with
David Rodgin, M.D., Ph.D., a diplomate of the American
Board of Psychiatry and Neurology. The evaluation was
conducted via an interpreter who spoke “passable” but
“far from fluent” English. Because of the interpreter’s
3 A GAF level of 41 through 50 is defined as:
Serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a
job). (Emphases in original).
Diagnostic and Statistical Manual of Mental Disorders, Third
Edition, Revised (1987) (DSM-III-R at 12).
4 A GAF level of 21-30 is:
Behavior is considerably influenced by delusions or
hallucinations OR serious impairment in
communication or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicidal
preoccupation) OR inability to function in almost all
areas (e.g., stays in bed all day; no job, home, or
friends). (Emphases in original).
(DSM-III-R at 12).
lack of complete fluency in English, Dr. Rodgin could not
conduct a formal mental status examination. He reported
his diagnosis and prognosis as follows:
... her psychiatric diagnoses fall into the cate-
goriesy [sic] of depressive disorder not other-
wise specified and undifferentiated somatoform
disorder. These, of course, are potentiated by
severe culture shock. :
. . . Prognosis is guarded and it is felt that her
symptoms will continue to cause significant
problems until consaiderably [sic] more assimi-
lation and familiarization with this culture has
taken place. .. . She is not considered capable of
managing her own funds.
On August 30, 1988, with the assistance of a Hmong
interpreter and Saelee’s friend, Wesley Fielding, M.D.,
conducted Saelee’s second psychiatric examination. The
Hmong interpreter “spoke only Hmong, Laotian, and
English, the latter minimally.” Saelee spoke only Mien.
Saelee’s friend spoke Mien, Laotian, and a “smattering of
English.” In relevant part, Dr. Fielding reported:
No further historical information could be
obtained under the language limitations of this
evaluation. ...
In spite of his inability to conduct a proper psychiatric
examination, Dr. Fielding issued a written report replete
with racially and/or ethnically biased comments as fol-
lows:
She was dressed in the usual costume of Mien
people in Merced, a dirty wide skirt and
unmatched print blouse with a filthy colored rag
wrapped around her head. She was an excep-
tion, however among members of the Mien
tribe, or group, in that she wore glasses. She did
not seem to have any trouble seeing objects in
the room and did not run into anything in the
small office on arriving and on leaving. As far as
I could determine she did not really understand
why she had come to see me, and she didn’t
seem to care anyway.
* * *
She never looked directly at me or at anyone
else, which seems to be the cultural norm for
these races in the women particularly, who are
taught to be obsequeous [sic] to the men at all
times.
+ * om
Hmong and Miens seem to have no negative
psychological attitudes towards people who
claim disabilities. If someone says they don’t
feel well enough to work, their statement is
never questioned by anyone else. This is not
true in this country where every child tries,
usually without success, to avoid having to go
to school because they are “sick.” Here, one
must prove that one is not malingering. Not so
in Laos.
In the same cultural-difference vein, the
word malingering does not carry with it the
same stigma in these people that it does in
America. To malinger and to claim disabilities
seems to be almost a natural maneuver for them,
not some dark moral misbehavior it indicates
here. It is hard to judge harshly a child who tries
to malinger and it is hard to judge a Hmong or a
Mien, too, and for the same reason: one cannot
9
be too hard on someone who does not know any
better.
DIAGNOSTIC IMPRESSIONS:
AXIS ONE........... POSSIBLE MALINGERING
POSSIBLE MILD
SOMATIFORM [SIC]
DISORDER
AXIS TWO........... POSSIBLE HISTRIONIC
PERSONALITY DISORDER
AXIS THREE....... VAGUE SOMATIC
COMPLAINTS, LIKELY
WITHOUT PHYSICAL OR
LABORATORY
VERIFICATION
Dr. Fielding’s foregoing report is based not on evidence
obtained from his limited psychiatric evaluation of
Saelee, but on the doctor’s speculation and his racial and
ethnic preconceptions. Similarly, his concluding remarks
are based not on evidence obtained from his limited
psychiatric examination, but on further speculation and
racial and ethnic preconceptions. Those remarks follow:
I found nothing psychiatrically in this indi-
vidual to label her disabled in any significant
way. Like so many Mien and Hmong women she
has likely found a good way, without having to
lose face, to avoid having to work too hard in
her home and to escape the excessive labors of
too much work and too many children foisted
on the women of her racial group by cultural
values. At the same time, her inadequacies
likely bolster the image of her husband, who has
no way of feeling or acting important to his
family in America, in comparison to the usual
10
ways he had in Southeast Asia. He gains some
respect within his family by taking over his
wife’s responsibilities.
From the psychiatric viewpoint there is no
reason this woman could not be employed, if
anyone would hire such a person.
Maximo Parayno, Jr., M.D., performed Saelee’s third
psychiatric examination on 2/17/90. Assisted by a pro-
fessional interpreter, Dr. Parayno diagnosed hypo-
chondriasis, astigmatism, myopia, pterygium, hysterical
amblyopia5, and culture shock. He assessed Saelee’s cur-
rent and past year GAF at 50.
THE HEDBERG REPORT:
At Saelee’s initial hearing held 10/23/90, she pre-
sented testimony through a Mien-English interpreter. No
other witnesses testified. Post-hearing, the ALJ sent to
Allan Hedberg, Ph.D., 15 interrogatories, seeking his
“assistance as a mental health expert with the above-
described case.” Dr. Hedberg responded in what the ALJ
has termed the “Hedberg Report.” (See App. 42).
In the Hedberg Report, Dr. Hedberg, a psychologist,
has set forth his interpretation of both the medical and
the psychological evidence. Moreover, and contrary to the
opinions of Saelee’s treating and examining physicians,
relying largely on Dr. Fielding’s racially and/or eth-
nically biased report, Dr. Hedberg concluded, in effect,
that because Saelee is “Southeast Asian, from Laos and
Mien,” any referenced somatoform disorder cannot be a
5 See footnote 2, supra.
11
disabling psychological disorder because “cultural
allowances mitigate any alleged or assumed disabling
condition, and also put it on a voluntary basis.”
Saelee’s attorney requested the right to cross-
examine Dr. Hedberg, and a supplemental hearing for
this purpose was held on April 7, 1992. Upon cross-
examination, contrary to the Diagnostic and Statistical Man-
ual of Mental Disorders, Third Edition, Revised (1987)
(DSM-III-R), Dr. Hedberg testified, inter alia, that, malin-
gering is “one of the factitious disorders.” Dr. Hedberg
also admitted that he could not identify reference sources
which suggested that it was acceptable within the Mien
culture for one to make physical complaints as described
by Dr. Fielding. He stated:
I'll call it a sub culture within the Southeast
Asian. However, it is referred to as a pattern
that is not uncommon within the Southeast
Asian. ... It’s not a dominant feature, but it’s
an allowable feature within the culture and it
does occur with some degree of regularity . . .
Dr. Hedberg admitted, that in formulating his opin-
ions, he gave no weight to the opinions of Saelee’s oph-
thalmologists that Saelee’s functional blindness and
inability to work was based on a psychological distur-
bance. He also admitted that, in reaching his conclusions,
he gave no greater weight to the opinions of treating
physicians over those of consultative examiners.
12
THE ALJ’S DECISION:
In finding Saelee not disabled, the ALJ relied on the
Hedberg Report and Dr. Hedberg’s testimony. Speci-
fically, the ALJ adopted Dr. Hedberg’s opinion that “the
claimant only suffers from mild depression which is com-
plicated by her cultural background.” (App. 49).
The ALJ rejected treating physician Aleman’s opinion
as follows:
I find specific, legitimate reasons for disre-
garding this opinion. It was given for the pur-
pose of this proceeding and differs significantly
from the doctor’s treatment notes as well as
being contradicted by other medical findings
and opinions in the record. The opinion is
worded in such a way that it strikes me as an
effort by the physician to assist a patient even
though there is no objective medical basis for
the opinion. Perhaps most important is the con-
cession by Dr. Aleman that he was unable to
establish any organic basis for most of her com-
plaints and was relying on her subjective allega-
tions. As discussed later, I find those allegations
to be entirely untrustworthy.
(App. 41).
THE OPINION OF THE NINTH CIRCUIT COURT OF
APPEALS:
Addressing Saelee’s allegation that the physicians’
opinions on which the ALJ relied were biased because
they attributed her ailments in part to her culture, the
Ninth Circuit held:
13
-. . As a Mien, two consulting physicians
concluded, Saelee suffered from a tendency to
malinger which they suggested was common
among people of her southeast Asian cultural
descent.
While this analysis implicates concerns of
ethnic stereotyping, the decision of the ALJ was
not based on that, but rather upon the lack of
any connection between Saelee’s complaints and
some organic medical condition. To the extent
the ALJ discussed Saelee’s supposed cultural
tendencies, it was offered only as a possible
explanation for the otherwise inexplicable
causes of her complaints.
(App. 8).
Affirming the propriety of the AL]’s rejecting Dr.
Aleman’s disability opinion, in part, because it was
obtained by Saelee’s attorney, the Ninth Circuit stated:
. the ALJ had discretion to disregard Dr.
Aleman’s diagnosis. Andrews, 53 F.3d at 1041.
Exercising that discretion, the ALJ found Dr.
Aleman’s report untrustworthy because it was
obtained solely for purposes of the administra-
tive hearing, varied from Dr. Aleman’s own
treatment notes, and was worded ambiguously
in an apparent attempt to assist Saelee in obtain-
ing social security benefits.
(App. 9).
The Ninth Circuit then held that the ALJ's rejection of Dr.
Aleman’s report on the grounds that it was solicited by
Saelee’s attorney was a permissible credibility determina-
tion. (App. 9-10).
14
REASONS FOR GRANTING THE WRIT: ARGUMENT
This case presents a conflict between the Ninth and
Eleventh Circuits on an important federal question. There
are compelling reasons for this Court to grant the petition
for a writ of certiorari to resolve that conflict. Moreover,
this case involves a decision of the U.S. Court of Appeals
for the Ninth Circuit which has decided important ques-
tions of federal law which have not been, but for which
there are compelling reasons that they should be, settled
by this Court.
Because the Supplemental Security Income disability
program is a needs based federal program, national in
scope, there is a compelling need for consistent, uniform,
and fair application of the agency’s implementing regula-
tions.
Where, as here, a disability claimant’s race and/or
ethnic identity is used to justify a finding of no disability,
the claimant is denied the right to an individualized
determination guaranteed by the Social Security Act and
recognized in this Court’s precedent.
Where, as here, the disability claimant bears the bur-
den of proof and is given a regulatory right to be repre-
sented by an attorney, that right is rendered meaningless
if the agency, via a “credibility determination,” can dis-
count a medical opinion on the grounds that it was
obtained by the claimant's attorney for purposes of the
administrative hearing. Such a rule results in the de facto
denial of the right to counsel and the effective assistance
of counsel. The Ninth Circuit’s decision implicates com-
pelling federal questions of due process, equal protection,
and the right to counsel.
15
THE NINTH CIRCUIT DECISION CONDONES DENY-
ING DISABILITY CLAIMANTS DUE PROCESS, THE
RIGHT TO COUNSEL, AND THE RIGHT TO EFFEC-
TIVE ASSISTANCE OF COUNSEL BY PERMITTING
ALJs TO REJECT A TREATING PHYSICIAN’S OPIN-
ION, IN PART, BECAUSE IT WAS OBTAINED BY THE
CLAIMANT’S ATTORNEY FOR PURPOSES OF THE
ADMINISTRATIVE HEARING
In a Social Security disability case, the claimant bears
the burden of proving disability. The Supreme Court
recognized this burden in Bowen v. Yuckert, 107 S.Ct. 2287
(1987), as follows:
The Secretary, moreover, has express statutory
authority to place the burden of showing a med-
ically determinable impairment on the claimant.
The Act provides that “[a]n individual shall not
be considered to be under a disability unless he
furnishes such medical and other evidence of
the existence thereof as the Secretary may
require.” § 423(d)(5)(A) (1982 ed. and Supp. III).
See Mathews v. Eldridge, 424 U.S. 319, 336, 96
S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
Moreover, this Court acknowledged a settled allocation of
burdens of proof in disability proceedings as follows:
. . . The claimant first must bear the burden at
step one of showing that he is not working, at
step two that he has a medically severe impair-
ment or combination of impairments, and at
step four that the impairment prevents him from
performing his past work. If the process ends at
step two, the burden of proof never shifts to the
Secretary. Similarly, if the impairment is one that
is conclusively presumed to be disabling, the
claimant is not required to bear the burden of
showing that he is unable to perform his prior
16
work. See Bluvband v. Heckler, 730 F.2d 886, 891
(CA2 1984). This allocation of burdens of proof
is well within the Secretary’s “exceptionally
broad authority” under the statute. Schweiker v.
Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633,
2639, 69 L.Ed.2d 460 (1981). It is not unreason-
able to require the claimant, who is in a better
position to provide information about his own
medical condition, to do so.
Bowen v. Yuckert, 107 S.Ct. at 2311 n.5.
In conformity with the foregoing, 20 C.F.R.
§ 416.912(a) explains to claimants their burden of proof,
in relevant part, as follows:
General. In general, you have to prove to us that
you are blind or disabled. Therefore, you must
bring to our attention everything that shows
that you are blind or disabled. This means that
you must furnish medical and other evidence
that we can use to reach conclusions about your
medical impairment(s) and, if material to the
determination of whether you are blind or dis-
abled, its effect on your ability to work on a
sustained basis. We will consider only impair-
ment(s) you say you have or about which we
receive evidence.
(App. 59).
Further, 20 C.F.R. § 416.912(c) explains to claimants
their responsibility for providing evidence, in relevant
part, as follows:
Your responsibility. You must provide medical
evidence showing that you have an impair-
ment(s) and how severe it is during the time you
say that you are disabled... .
(App. 60)
17
On the other hand, 20 C.E.R. § 416.912(d) explains the
agency’s responsibilities. It provides, in relevant part:
Our responsibility. Before we make a determina-
tion that you are not disabled, we will develop
your complete medical history for at least the 12
months preceding the month in which you file
your application unless there is a reason to
believe that development of an earlier period is
necessary or unless you say that your disability
began less than 12 months before you filed your
application. We will make every reasonable
effort to help you get medical reports from your
own medical sources when you give us permis-
sion to request the reports.
(App. 61).
Moreover, in addressing the contents of requested medi-
cal reports, 20 C.E.R. § 416.913(b)(6) provides that medical
reports should include:
A statement about what you can still do, despite
your impairment(s) based on the medical
source’s findings on the factors under para-
graphs (b)(1) through (b)(5) of this section
(except in statutory blindness claims). Although
we will request a medical source statement
about what you can still do despite your
impairment(s), the lack of the medical source
statement will not make the report incomplete.
See § 416.927.
(Bold emphasis added) (App. 64).
In the instant case, as the hearing approached, medi-
cal reports from Saelee’s treating physician, Dr. Aleman,
did not contain a “medical source statement about what
18
[Saelee] can still do despite [her] impairment(s)”. Con-
trary to his regulatory duty set out in 20 C.E.R.
§ 416.913(b)(6), the ALJ had not requested such a state-
ment. As the foregoing discussion establishes, Saelee had
both a right, and the duty, to solicit a medical source
statement to corroborate her claim for benefits. Accord-
ingly, Saelee’s attorney requested the statement. (See
App. 75-76). In his decision, the ALJ rejected Dr. Ale-
man’s statement, in part, because “[i]t was given for the
purpose of this proceeding . . . ” (App. 41).
The Ninth Circuit affirmed, holding that the ALJ’s
rejection of the doctor’s opinion letter on the grounds
that it had been solicited by the claimant’s counsel was a
permissible credibility determination. Citing Burkhart v.
Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988), the Ninth
Circuit stated:
.. we [] have permitted an ALJ to question a
doctor’s credibility because, as here, the doc- ~~~
tor’s opinion letter had been solicited by the
claimant’s counsel.
(App. 9-10).
Saelee contends that the Ninth Circuit’s holding
affirms the ALJ’s denying her due process, the right to
counsel and the right to effective assistance of counsel.
The Supreme Court has not recognized a constitutional
right to counsel at a Social Security disability hearing.
Moreover, while the Social Security Act (42 U.S.C.
§ 406(a)(1)) gives to certain attorneys in good standing a
statutory right to represent claimants before the agency,
the Act, itself, does not guarantee to claimants the right
to counsel at a disability hearing.
19
Although claimants may not have a constitutional or
statutory right to counsel at Social Security disability
hearings, by regulation, the Social Security Administra-
tion guarantees claimants the right to be represented by
certain attorneys in good standing. 20 C.F.R. §§ 416.1500
& 416.1505(a).
Here, Saelee exercised her regulatory right to be rep-
resented by an attorney in good standing, Mr. Ishikawa.
Undertaking his ethical responsibilities competently to
represent his client’s interests, when the ALJ had failed to
discharge his own regulatory duty to request a medical
source statement from Dr. Aleman, Attorney Ishikawa
sought and obtained it, only to have it rejected in part,
because “[i]t was given for the purpose of this proceed-
Be ee
Although the agency guarantees a claimant the right
to be represented by an attorney, that right is rendered
meaningless ab initio when, as here, the product of that
representation can be nullified on the grounds that the
attorney procured it for purposes of the claimant’s
administrative hearing.
Because the claimant bears the burden of proving
disability, the claimant has both a right, and the duty, to
solicit a medical opinion to corroborate her claim for
benefits. 20 C.F.R. § 416.913. The purpose for which medi-
cal reports are obtained does not provide a legitimate
basis for rejecting them. An examining or treating doc-
tor’s findings and opinions are entitled to no less weight
when they are procured by the claimant’s attorney than
when they are obtained by the Commissioner. In the
20
absence of affirmative evidence of the fact, the Commis-
sioner may not assume that doctors routinely lie in order
to help their patients collect disability benefits. The Ninth
Circuit is alone among the courts of appeal in condoning
such an overt violation of the Social Security Act, the
Act’s implementing regulations, and due process.
The Eleventh Circuit was faced with a similar situa-
tion in Miles v. Chater, 84 F.3d 1397 (11th Cir. 1996), where,
in a decision issued after the hearing, the ALJ rejected the
opinion of the claimant’s physician, Dr. McLain, in a
“credibility determination,” which included an observa-
tion that “Dr. McLain’s examinations for Mr. McCluskey
{Miles’ attorney] almost invariably conclude that the per-
son being examined is totally disabled.” In reversing and
remanding for a new hearing, the Eleventh Circuit rea-
soned as follows:
The ALJ plays a crucial role in the disability
review process. Not only is he duty-bound to
develop a full and fair record, he must carefully
weigh the evidence, giving individualized con-
sideration to each claim that comes before him.
Because of the deferential standard of review
applied to his decision-making, the ALJ’s reso-
lution will usually be the final word on a claim-
ant’s entitlement to benefits. The impartiality of
the ALJ is thus integral to the integrity of the
system. See Johnson v. Mississippi, 403 U.S. 212,
216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423, 427
(1971) (citations omitted) (“Trial before ‘an unbi-
ased judge’ is essential to due process.”).
The ALJ’s observations here with respect to
the medical opinions rendered by McLain for
McCluskey’s clients, without any evidence in
support thereof, reflect that the process was
21
compromised in this case. [Footnote omitted].
We therefore hold that Miles is entitled to an
unbiased reconsideration of her application for
benefits before a different Abe es
84 F.3d at 1401.
In the instant case, the Ninth Circuit’s decision
unfairly singles out SSI disability applicants within its
states to receive disparate treatment in the evaluation of
their claims when those claims are supported by medical
source statements obtained by claimants’ attorneys. In
light of the apparent conflict in the circuits over this
issue, but just as importantly, given the national scope of
the Social Security Act and its implementing regulations,
and given the compelling need for consistent, uniform,
and fair application thereof, there is a compelling need
for this court to review the Ninth Circuit’s decision.
THE NINTH CIRCUIT HOLDING RENDERS MEAN-
INGLESS THE AGENCY’S REGULATIONS IMPOSING
UPON DISABILITY ADJUDICATORS THE DUTY TO
CONTACT AND RECONTACT DISABILITY CLAIM-
ANTS’ MEDICAL SOURCES BEFORE REJECTING
OPINIONS OF THOSE SOURCES ON THE GROUNDS
THAT THE OPINIONS- CONTAIN CONFLICTS, ARE
AMBIGUOUS, OR ARE NOT SUPPORTED BY OBJEC-
TIVE MEDICAL EVIDENCE.
Here, the ALJ also rejected Dr. Aleman’s report
because it purportedly varied from the doctor’s treatment
notes, was contradicted by other findings and opinions,
and because the “opinion is worded in such a way that it
strikes me as an effort by the physician to assist a patient
even though there is no objective medical basis for the
22
opinion.” (App. 41). The Ninth Circuit affirmed the ALJ's
actions on the grounds that the report -
. varied from-Dr. Aleman’s own treatment
notes, and was worded ambiguously in an
apparent attempt to assist Saelee in obtaining
social security benefits.
(App. 9).
In Supplemental Security Income disability benefits
cases, 20 C.F.R. § 416.912(e)(1) requires adjudicators to -
. seek additional evidence or clarification
from [the claimant’s] medical source when the
report from [the claimant’s] medical source con-
tains a conflict or ambiguity that must be
resolved, the report does not contain all the
necessary information, or does not appear to be
based on medically acceptable clinical and labo-
ratory diagnostic techniques... ”
(App. 62).
In the instant case, in light of the ALJ‘s concerns that
Dr. Aleman’s report contained a conflict or ambiguity
that must be resolved or that it did not appear to be
based on medically acceptable clinical and laboratory
diagnostic techniques, the ALJ was required to recontact
Dr. Aleman to seek additional evidence or clarification.
Instead, the ALJ ignored 20 C.F.R. § 416.912(e)(1) and
solicited a post-hearing report, upon which to base his
decision, from a non-examining, non-treating psycholo-
gist, Dr. Hedberg.
Saelee’s attorney then requested that Dr. Hedberg be
subpoenaed for cross-examination. Under cross-examination,
Dr. Hedberg conceded that, in reaching his conclusions, he
23
was speculating about various opinions in the record. He
also conceded he was according no special weight to opin-
ions based on treating as opposed to examining and non-
examining relationships, and his testimony established that
there were unresolved ambiguities and conflicts in the
record. With express knowledge of such ambiguities and
conflicts, however, again the ALJ ignored 20 C.FR.
§ 416.912(e)(1) and simply rejected Dr. Aleman’s report, rely-
ing solely on Dr. Hedberg’s interpretation of the record.
Not only does the ALJ's action contravene 20 C.ER.
§ 416.912(e)(1), but it also contravenes the agency’s regu-
lations which govern how the agency will evaluate medi-
cal opinions about a claimant's impairments or disability.
(See 20 C.F.R. § 416.927 set out in full at App. 67-73). The
AL]J’s action contravenes § 416.927(c)(3) which recognizes
the adjudicator’s obligation to recontact medical sources
under the provisions of § 416.912. Additionally, the ALJ's
action contravenes § 416.927(d) which requires that, after
full development of the claimant's medical history, medi-
cal opinions be weighed based on such enumerated crite-
ria as whether the medical source is a treating,
examining, or non-examining source; the nature and
extent of the treatment relationship; the length of the
treatment relationship and the frequency of examination;
consistency; and specialization.
The Ninth Circuit’s affirming the AL]’s rejection of
Dr. Aleman’s report, without requiring the ALJ to recon-
tact Saelee’s medical sources to resolve the ambiguities
and conflicts and then to weigh the medical opinions
pursuant to the express regulatory criteria, permits the
ALJ to ignore both the ambiguities and conflicts in the
24
record, to weigh the medical opinions by improper crite-
ria, and to base his decision solely upon the interpreta-
tion of the record by a non-examining medical advisor,
effectively rendering the agency’s regulations super-
fluous and of no force and effect.
THE NINTH CIRCUIT HOLDING AFFIRMS THE
ALJ’S DEPRIVING THE CLAIMANT OF EQUAL PRO-
TECTION AND OF AN INDIVIDUALIZED DISABIL-
ITY DETERMINATION BY ALLOWING THE AL] TO
BASE THE DETERMINATION ON IMPERMISS!IBLE
CONSIDERATIONS OF RACE AND/OR ETHNICITY
As set out above, the Ninth Circuit recognized that
Dr. Fielding and Dr. Hedberg concluded that “[a]s a
Mien, . . . Saelee suffered from a tendency to malinger
which they suggested was common among people of her
southeast Asian cultural descent.” (App. 8). The Ninth
Circuit then held -
While this analysis implicates concerns of
ethnic stereotyping, the decision of the ALJ was
not based on that, but rather upon the lack of
any connection between Saelee’s complaints and
some organic medical condition. To the extent
the ALJ discussed Saelee’s supposed cultural
tendencies, it was offered only as a possible
explanation for the otherwise inexplicable
causes of her complaints.
(App. 8).
The Ninth Circuit’s opinion notwithstanding, the
ALJ's analysis did implicate concerns of ethnic stereotyp-
ing and the ALJ did base his decision on that. The Ninth
_ Circuit expressly held that the “ALJ’s primary reliance on
the findings of Dr. Hedberg, a medical consultant, was
25
not an abuse of discretion.” (App. 8). As set out above,
Dr. Hedberg relied largely on the ethnically biased report
of Dr. Fielding and upon his own ethnic bias in writing
his report and in testifying upon cross-examination.
Dr. Fielding’s report was tainted not only by his
ethnic bias but by his use of a three-way relay of unqual-
ified interpreters to conduct his psychiatric examination.
A report resulting from such an examination should be
held not capable of being substantial evidence. Moreover,
Dr. Hedberg’s adoption of that report must be viewed as
equally tainted and as equally insubstantial.
Although admitting he could not identify reference
sources which suggested it was acceptable within the
Mien culture to malinger symptoms, Dr. Hedberg nev-
ertheless insisted there was what he called “a subculture
within the Southeast Asian.” He stated that malingering
symptoms was “referred to as a pattern that is not
uncommon within the Southeast Asian. .. . it’s an allow-
able feature within the culture and it does occur with
some degree of regularity... ”
From that background knowledge, without any evi-
dence that Saelee was a member of the referenced “sub
culture,” Dr. Hedberg concluded Saelee could not have a
disabling somatoform disorder because she is a member
of the Southeast Asian culture. In other words, Dr. Hed-
berg concluded that if Saelee were not Southeast Asian,
she could have a disabling somatoform disorder (as sev-
eral of her physicians opined she did). However, accord-
ing to Dr. Hedberg, because Saelee is Southeast Asian,
her allegations of physical symptoms ~ not resulting from
26
organic pathology — must be malingered, and, therefore,
cannot be disabling.
The American Psychiatric Association’s Diagnostic
And Statistical Manual III, (Third Edition-Revised) (DSM
III-R), page 255, describes somatoform disorders, in rele-
vant part, as follows:
The essential features of this group of disorders
are physical symptoms suggesting physical dis-
order (hence, Somatoform) for which there are
no demonstrable organic findings or known
physiologic mechanisms, and for which there is
positive evidence, or a strong presumption, that
the symptoms are linked to psychological fac-
tors or conflicts. Unlike in Factitious Disorder or
Malingering, the symptom production in
Somatoform Disorders is not intentional, i.e., the
person does not experience the sense of control-
ling the production of the symptoms. Although
the symptoms of Somatoform Disorders are
“physical,” the specific pathophysiologic pro-
cesses involved are not demonstrable or under-
standable by existing laboratory procedures and
are conceptualized most clearly by means of
psychological constructs. For that reason, these
are classified as mental disorders.
As the DSM III-R establishes, it is the very nature of
somatoform disorders that, for individuals with such dis-
orders, there are no demonstrable organic findings or
medical conditions underlying the individual’s somatic
complaints. Accordingly, the Ninth Circuit disin-
genuously holds the ALJ’s discussion of Saelee’s ethnicity
“was offered only as a possible explanation for the other-
wise inexplicable causes of her complaints.” In the factual
circumstances of this case, the court and the ALJ ignored
27
that the “otherwise inexplicable cause[] of [Saelee’s]
complaints,” is that, in spite of being Southeast Asian, she
has a disabling somatoform disorder as diagnosed by
several treating and examining physicians. Where, as
here, the ALJ finds Saelee does not have a somatoform
disorder because she is Southeast Asian, the AL]’s deci-
sion is based on impermissible considerations of race and
ethnicity and deprives Saelee of the right to an individu-
alized determination.
This Court has recognized that the Social Security
Act “contemplates that disability hearings will be indi-
vidualized determinations based on evidence adduced at
a hearing.” Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct.
1952, 1957, 76 L.Ed.2d 66, 74 (1983). Where, as here, in
finding the claimant not disabled, the ALJ relies on
racially and/or ethnically biased reports of a one-time
consultative examiner and a non-examining medical
advisor to find that a claimant does not have a disabling
somatoform disorder, the ALJ deprives the claimant of
equal protection and the right to an individualized deter-
mination because the determination is based on imper-
missible considerations of race and/or ethnicity.
+
28
CONCLUSION
For the foregoing reasons, Saelee respectfully prays
that this Court issue a writ of certiorari to review the
decision of the United States Court of Appeals for the
Ninth Circuit.
Respectfully submitted,
RatPpH WILBorN, Attorney at Law
Counsel Of Record For Petitioner
RALPH WiLsorRN & Etta L. Wicsorn, P.C.
1580 Valley River Drive, Suite 170
Eugene, Oregon 97401
(541) 485-4265
App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Defendant-Appellee.
) No. 94-16664
CHIAD SAELEE, )
+ ecee ) D.C. No.
Plaintiff-Appellant, CV-93-5220 OWW
v. ) (DLB)
SHIRLEY S. CHATER, ) ORDER AND
Commissioner of the Social ) AMENDED
Security Administration,* OPINION
)
)
Appeal from the Unit:d States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
: Submitted December 7, 1995**
San Francisco, California
Filed May 9, 1996
*In accordance with section 106(d) of the Social Security
Independence and Program Improvements Act of 1994, P.L. No.
103-296, Shirley S. Chater, the Commissioner of Social Security,
is substituted for Donna E. Shalala, Secretary of Health and
Human Services, as defendant-appellee. Because the Secretary
of Health and Human Services was responsible for actions of
the Social Security Administration during the earlier
proceedings reviewed here, we will refer to the defendant-
appellee as “Secretary” rather than “Commissioner” for
convenience.
“*The panel unanimously finds this case suitable for disposition
without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.
App. 2
Amended August 12, 1996
Before: J. Clifford Wallace and David R. Thompson, Cir-
cuit Judges, and John W. Sedwick, District Judge.***
Per Curiam
SUMMARY
Government Law/Social Security
The court of appeals affirmed a decision of the Com-
missioner of Social Security. The court held that a consult-
ing physician’s attribution of a malingering tendency to
the cultural background of an applicant for social security
benefits is insufficient to negate a finding of no disability
that is based on a lack of an organic basis for the claim-
ant’s physical complaints.
Appellant Chiad Saelee applied for supplementary
income disability benefits under the Social Security Act.
Saelee complained of physical and psychological ail-
ments. Except for a hearing impairment, consulting medi-
cal examinations did not reveal an underlying medical
cause for Saelee’s complaints. This was corroborated by
the opinions of examining and consulting physicians that
were based on independent clinical findings. In one
instance Saelee was able to move about in a doctor’s
office although she claimed to be blind; in another she
walked steadily into a doctor’s examination room and
limped out. Two consulting physicians concluded that
***Hon. John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
App. 3
Saelee had a tendency to malinger that was associated
with her southeast Asian cultural background.
Dr. Aleman, Saelee’s treating physician, reached con-
clusions contrary to those of the other doctors in a report
that was worded ambiguously and had been prepared
solely to help Saelee obtain social security benefits.
An administrative law judge (ALJ) determined that
Saelee’s psychological ailments were non-severe and that
her hearing impairment was treatable. However, the ALJ
concluded that no physician linked Saelee’s ailments to
known medical pathologies and that her complaints were
extremely vague. The ALJ found Dr. Aleman’s report
untrustworthy. Relying primarily on Dr. Hedberg’s find-
ings, the ALJ concluded that Saelee was not disabled and
therefore not entitled to benefits.
Relying on the recommendation of a magistrate
judge, the district court found that the AL]’s findings
were supported by substantial evidence.
On appeal, Saelee contended that the physicians’
opinions on which the ALJ relied were biased against her
because of her southeast Asian cultural descent, and that
the ALJ should not have disregarded Dr. Aleman’s opin-
ion.
The decision of the ALJ was not based on ethnic
stereotyping, but on the lack of any connection between
Saelee’s complaints and some organic condition. The
findings of a nontreating consulting physician can
amount to substantial evidence, so long as other evidence
supports them.
App. 4
Dr. Hedberg’s opinion was corroborated by the opin-
ions of other examining and consulting physicians, which
were based on independent clinical findings. Because Dr.
Hedberg and the other examining physicians’ opinions
were based on independent clinical findings, the ALJ had
discretion to disregard Dr. Aleman’s diagnosis. The AL]’s
conclusion that Dr. Aleman’s solicited report was untrust-
worthy was a permissible credibility determination.
COUNSEL
Robert Ishikawa, Bromberg & Ishikawa, Fresno, Califor-
nia, for the appellant.
Donna Wade Anderson, Assistant Regional Counsel,
Department of Health and Human Services, San Fran-
cisco, California, for the appellee.
ORDER
The opinion filed May 9, 1996, and published at 83
F.3d 322 (9th Cir. 1996) is amended as follows:
At slip op. 5676-77, the last sentence of the last para-
graph of the text, which sentence begins “In these circum-
stances,” is deleted, and the following additional two
paragraphs are inserted as the last paragraphs of the text
of the opinion:
We have consistently held that “questions of
credibility and resolution of conflicts in the tes-
timony are functions solely of the Secretary.”
Allen v. Heckler, 749 F.2d 577, 580 n.1 (9th Cir.
1985) (quotations omitted). “The ALJ is respon-
sible for determining credibility and resolving
App. 5
conflicts in medical testimony.” Magallanes, 881
F.2d at 750. Although in Lester v. Chater, 81 F.3d
821 (9th Cir. 1996), we stated that “[t]he purpose
for which medical reports are obtained does not
provide a legitimate basis for rejecting them,” id.
at 832, we also have permitted an ALJ to ques-
tion a doctor’s credibility because, as here, the
doctor’s opinion letter had been solicited by the
claimant’s counsel. See Burkhart v. Bowen, 856
F.2d 1335 (9th Cir. 1988). In Burkhart, we
explained that the ALJ’s comment was “a per-
missible credibility determination given the evi-
dence before the ALJ.” Id. at 1339. Because Lester
could not have superseded our law established
in Allen and Burkhart, see United States v. Camper,
66 F.3d 229, 232 (9th Cir. 1995) (“only a panel
sitting en banc may overturn existing Ninth Cir-
cuit precedent”), we assume Lester is limited to
the particular circumstances presented therein.
As in Burkhart, here the ALJ’s conclusion
that Dr. Aleman’s solicited report was untrust-
worthy was a permissible credibility determina-
tion. The ALJ stated that Dr. Aleman’s opinion
“is worded in such a way that it strikes [him] as
an effort by the physician to assist a patient
even though there is no objective medical basis
for the opinion.” The ALJ pointed out that Dr.
Aleman himself stated that he was unable to
establish any organic basis for most of Saelee’s
complaints and that he relied on her subjective
allegations, which the ALJ, in his discretion,
disregarded as “entirely untrustworthy.” Thus,
the ALJ cited to evidence of “actual impropri-
eties” in Dr. Aleman’s report. See Lester, 81 F.3d
at 832. In these circumstances, the ALJ did not
App. 6
abuse his discretion in rejecting Dr. Aleman’s
opinion. 3
AFFIRMED.
OPINION
PER CURIAM.
Chiad Saelee appeals the district court’s summary
judgment in favor of the Commissioner of the Social
Security Administration (Commissioner) in her action
challenging the Commissioner’s denial of supplemental
income disability benefits under the Social Security Act
(the Act), 42 U.S.C. § 405(g). The administrative law judge
(ALJ) found that Saelee was not disabled within the
meaning of the Act, and the district court, relying on the
recommendation of the magistrate judge, found that the
ALJ’s findings were supported by substantial evidence
and granted summary judgment to the Commissioner.
Saelee appeals and we affirm.
DISCUSSION
Saelee raises two issues on appeal. She contends the
ALJ’s finding that she was not disabled within the mean-
ing of the Act was not supported by substantial evidence.
Saelee also contends the ALJ erred in rejecting the find-
ings and opinions of her treating physician in favor of the
findings and opinions of nontreating consultants.
The standard of review of a district court’s grant of
summary judgment is de novo. Marcia v. Sullivan, 900
F.2d 172, 174 (9th Cir. 1990). Summary judgment is appro-
priate if there are no disputed issues of material fact and
"a
App. 7
the moving party is entitled to judgment as a matter of
law. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985).
When reviewing factual determinations by the Commis-
sioner, acting through the ALJ, regarding an individual's
disability, we affirm if “substantial evidence” supports
the determinations. 42 U.S.C. § 405(g); Jones v. Heckler, 760
F.2d 993, 995 (9th Cir. 1985). Substantial evidence is
“more than a mere scintilla,” Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal quotations omitted), but less
than a preponderance. Sorenson v. Weinberger, 514 F.2d
1112, 1119 n.10 (9th Cir. 1975).
There is ample evidence in the record to support the
ALJ’s determination that Saelee is not disabled. Saelee
complains of numerous physical and psychological ail-
ments that prevent her from engaging in any substantial
work. With regard to Saelee’s psychological impairments,
the evidence showed that Saelee suffered from mild
depression and possibly factitious disorder. The ALJ cor-
rectly determined that these psychological ailments were
“nonsevere.”
With regard to Saelee’s physical condition, except for
her hearing impairment, numerous medical examinations
failed to disclose any underlying medical cause of the
ailments of which Saelee complained. With regard to
Saelee’s hearing impairment, the ALJ found her to be
hearing impaired in one ear, but capable of normal hear-
ing with the assistance of a hearing aid.
The ALJ’s decision discusses each of Saelee’s alleged
ailments in detail and correctly concludes that no physi-
cian has been able to find a link between Saelee’s com-
plaints and known medica! pathologies. Lacking any
App. 8
organic basis, Saelee’s complaints were deemed
“extremely vague” by the ALJ.
Saelee’s conduct also raised doubts about the integ-
rity of her complaints; in one instance, she was able to
move about a doctor’s office at ease despite claiming to
be blind and, in another, she left a doctor’s examination
room limping heavily although she had no noticeable
limp when she entered the room.
Saelee argues that the physicians’ opinions on which
the ALJ relied were biased because they attributed her
ailments in part to her culture. As a Mien, two consulting
physicians concluded, Saelee suffered from a tendency to
malinger which they suggested was common among peo-
ple of her southeast Asian cultural descent.
While this analysis implicates concerns of ethnic ste-
reotyping, the decision of the ALJ was not based on that,
but rather upon the lack of any connection between
Saelee’s complaints and some organic medical condition.
To the extent the ALJ discussed Saelee’s supposed cul-
tural tendencies, it was offered only as a possible expla-
nation for the otherwise inexplicable causes of her
complaints.
The ALJ’s primary reliance on the findings of Dr.
Hedberg, a medical consultant, was not an abuse of dis-
cretion. We have held that the findings of a nontreating,
nonexamining physician can amount to substantial evi-
dence, so long as other evidence in the record supports
those findings. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th
Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir.
1989). Dr. Hedberg’s opinion was corroborated by the
opinions of other examining and consulting physicians,
App. 9
which in turn were based on independent clinical find-
ings. The essence of these opinions was that Saelee suf-
fered from no demonstrable physical condition, which
controverted the testimony of Dr. Aleman, Saelee’s treat-
ing physician.
Because Dr. Hedberg and the other examining physi-
cians’ opinions were based on “independent clinical find-
ings,” the ALJ had discretion to disregard Dr. Aleman’s
diagnosis. Andrews, 53 F.3d at 1041. Exercising that discre-
tion, the ALJ found Dr. Aleman’s report untrustworthy
because it was obtained solely for the purposes of the
administrative hearing, varied from Dr. Aleman’s own
treatment notes, and was worded ambiguously in an
apparent attempt to assist Saelee in obtaining social secu-
rity benefits.
We have consistently held that “questions of cred-
ibility and resolution of conflicts in the testimony are
functions solely of the Secretary.” Allen v. Heckler, 749 F.2d
577, 580 n.1 (9th Cir. 1985) (quotations omitted). “The ALJ
is responsible for determining credibility and resolving
conflicts in medical testimony.” Magallanes, 881 F.2d at
750. Although in Lester v. Chater, 81 F.3d 821 (9th Cir.
1996), we stated that “[t]he purpose for which medical
reports are obtained does not provide a legitimate basis
for rejecting them,” id. at 832, we also have permitted an
ALJ to question a doctor’s credibility because, as here, the
doctor’s opinion letter had been solicited by the claim-
ant’s counsel. See Burkhart v. Bowen, 856 F.2d 1335 (9th
Cir. 1988). In Burkhart, we explained that the ALJ’s com-
ment was “a permissible credibility determination given
the evidence before the ALJ.” Id. at 1339. Because Lester
could not have superseded our law established in Allen
App. 10
and Burkhart, see United States v. Camper, 66 F.3d 229, 232
(9th Cir. 1995) (“only a panel sitting en banc may over-
turn existing Ninth Circuit precedent”), we assume Lester
is limited to the particular circumstances presented
therein.
As in Burkhart, here the ALJ’s conclusion that Dr.
Aleman’s solicited report was untrustworthy was a per-
missible credibility determination. The ALJ stated that
Dr. Aleman’s opinion “is worded in such a way that it
strikes [him] as an effort by the physician to assist a
patient even though there is no objective medical basis
for the opinion.” The ALJ pointed out that Dr. Aleman
himself stated that he was unable to establish any organic
basis for most of Saelee’s complaints and that he relied on
her subjective allegations, which the ALJ, in his discre-
tion, disregarded as “entirely untrustworthy.” Thus, the
ALJ cited to evidence of “actual improprieties” in Dr.
Aleman’s report. See Lester, 81 F.3d at 832. In these cir-
cumstances, the ALJ did not abuse his discretion in reject-
ing Dr. Aleman’s opinion.
AFFIRMED.
App. 11
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CHIAD SAELEE,
(S.S. #566-91-7485), JUDGMENT IN A
Plaintiff, CIVIL ACTION
on CV-F-92-5220
OWW/DLB
SECRETARY OF HEALTH
AND
HUMAN SERVICES,
Defendant.
/
DECISION BY COURT: This action came to trial or
hearing before the Court. The issues have been tried or
heard and a decision has been rendered.
IT Is HEREBY ORDERED AND ADJUDGED that the
Magistrate’s Report and Recommendation is ADOPT ED;
plaintiff’s motion for summary judgment and/or remand
is DENIED; defendant’s motion for summary judgment is
GRANTED.
Date: July 15, 1994
JACK L. WAGNER, Clerk
/s/ By S Dilley
Deputy Clerk
App. 12
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CHIAD SAELEE,
(S.S. # 566-91-7485, CV-F-93-5220 OWW DLB
Plaintiff, ORDER ADOPTING
si REPORT AND
RECOMMENDATION
SECRETARY OF HEALTH RE: PLAINTIFF’S
AND HUMAN SERVICES, MOTION FOR
SUMMARY JUDGMENT
AND/OR REMAND
AND DEFENDANT'S
CROSS-MOTION FOR
SUMMARY JUDGMENT
Defendant.
i i
This case comes before the Court on plaintiff's
motion for summary judgment and/or remand and
defendant’s cross-motion for summary judgment. The
Magistrate Judge filed a report and recommendation on
March 17, 1994. Plaintiff has filed objections. The Court
has reviewed the report and recommendation of the Mag-
istrate and the underlying file pursuant to the provisions
of 28 U.S.C. § 636(b) (1). Under that standard, a de novo
review is conducted for those portions of the Magistrate’s
report to which a litigant has filed an objection. 28 U.S.C.
§ 636(b) (1) (C); Fed.R.Civ.P. 72(a).
Plaintiff argues that the Magistrate relied solely on
the testimony of Dr. Hedberg, an impartial medical con-
sultant who had never examined plaintiff, in finding that
the ALJ’s decision was based on substantial evidence.
App. 13
“A report of a non-examining, non-treating physician
Should be discounted and is not substantial evidence
when contradicted by all other evidence in the record.”
Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). But
reliance on a consultant is appropriate if the consultant’s
testimony is not contradicted by all other evidence in the
record, and the ALJ’s determination rests in part on other
evidence. Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989).
Here, the ALJ did not rely solely on the testimony and
report of Dr. Hedberg, but found plaintiff did not qualify
for benefits because the record as a whole lacked evi-
dence that plaintiff’s impairment was severe or that she
was incapable of work. The ALJ pointed out that other
physicians had found plaintiff’s complaints of left leg
pain, back pain, severe depression and severe vision
impairment were without medical basis, including a
treating physician who conceded he was unable to estab-
lish any organic basis for most of plaintiff’s complaints.
The ALJ may properly rely on Dr. Hedberg’s assessment
to the extent it is consistent with other independent evi-
dence in the record. Magallanes, 881 F.2d at 752. The
Magistrate also relied on Dr. Hedberg’s report, which was
based on a review of all doctor’s reports and their under-
lying, independent clinical findings. A non-treating phy-
sician’s opinion, if based on objective medical tests, can
constitute substantial evidence. Miller v. Heckler, 770 F.2d
845, 849 (9th Cir. 1985). Plaintiff’s objection that the Mag-
istrate improperly found the opinion of Dr. Hedberg con-
stituted substantial evidence is over-ruled.
Plaintiff argues that Dr. Hedberg’s criticism of con-
sultive psychiatrist Dr. Maximo Parayno’s findings are
baseless, because Dr. Hedberg lacked familiarity with Dr.
App. 14
~- Parayno’s methodology. Dr. Parayno assessed plaintiff's
global functioning (“GAF”) at 50, stating:
We have a 39 y/o woman who complains of
multiple physical symptoms. After a physical
workup, apparently there is nothing organic
that would explain the physical symptoms.
There apparently has been no history of any
serious medical problems such as injury or
infection. The patient continues to complain of
sensory deficits, particularly to her vision. It
would seem that the patient is having a
sonamoform [sic] disorder, particularly hypo-
chondriasis. Her activities of daily living are
restricted and this would be consistent within
the culture in which the identified patient
assumes a complete dependency status and her
needs are met by the apparently well off mem-
bers of her family.
AR, Exhibit 38. Dr. Hedberg stated a GAF 50 was incon-
sistent with the remainder of the report, explaining, “I
think [Dr. Parayno]’s saying that because of her prefer-
ence to assume a sick role and to be dependent upon her
family she functions at a low level and he described it as
a 50.” AR 123. Plaintiff argues when Dr. Parayno assessed
a GAF 50, “there should have been no doubt, in the
absence of contrary evidence, that he was correctly using
the GAF scale to indicate ‘serious’ impairments related to
mental disorders.” But evidence contradicting the GAF 50
exists within the same report which determined it, that of
Dr. Parayno. Dr. Hedberg merely explained that finding
in the context of Dr. Parayno’s report, in which Dr. Paray-
no concludes that “nothing organic . . . would explain
[plaintiff’s] physical symptoms,” and that plaintiff’s fail-
ure to attain a higher-functioning GAF was voluntary. Dr.
App. 15
Hedberg also points out that Dr. Parayno’s report fails to
enumerate a disability causing symptoms consistent with
a GAF 50. It was not error for the ALJ to rely on Dr.
Hedberg’s critique of Dr. Parayno’s GAF finding.
Plaintiff contends that Dr. Hedberg’s discussion of
the conflict between Dr. Parayno and Dr. Jeffers is mean-
ingless, because both concur that plaintiff's impairment
was at least moderate. Plaintiff's argument is sound, if
the GAF rating of both Dr. Parayno and Dr. Jeffers are
reliable. But as previously discussed, the ALJ did not err
in disregarding Dr. Parayno’s GAF rating as it was incon-
sistent with other evidence and analysis in Dr. Parayno’s
report. Regarding Dr. Jeffers’s GAF rating, the ALJ found
independent evidence supported Dr. Hedberg’s conclu-
sion that plaintiff’s depression was not disabling. AR 23
(discussing other physician’s medical reports and a pre-
scription for Elavil, which indicated plaintiff’s depression
was mild). Because substantial evidence supports a find-
ing that neither Dr. Parayno and Dr. Jeffer’s GAF were
reliable, plaintiff's objection on this ground is over-ruled.
Plaintiff argues that Dr. Hedberg’s testimony was
heavily weighted with cultural bias. Dr. Hedberg
attempted to explain the opinions of both Dr. Fielding
and Dr. Parano [sic], who stated that plaintiff’s failure to
participate in daily activities was due to a voluntary
dependence on family members, a trait found acceptable
in the Hmong/Mien cultures. Dr. Hedberg found Dr.
Fielding’s and Dr. Parano’s [sic] opinions consistent with
articles and other literature that Dr. Hedberg had read on
that topic concerning Southeast Asians generally. Dr.
Hedberg also found this explanation persuasive in plain-
tiff’s case.
App. 16
Dr. Hedberg’s cultural explanation was shared by
two other experts, who agreed that plaintiff’s symptoms
were, in part, voluntary. Plaintiff does rot argue that the
other two physicians were culturally biased. Nor does the
expianation, even if seen as bias, negate that the record
lacks objective evidence, found credible by the ALJ, that
plaintiff is disabled. To the contrary, the record contains
consistent findings by various physicians and experts
that, upon examining plaintiff or her medical records,
insufficient evidence of a disability exists.
Plaintiff does not assert that the ALJ was biased, as
the factfinder in the proceedings. The ALJ’s opinion
reflects only partial reliance on Dr. Hedberg’s
unchallenged cultural explanation, focusing primarily on
the lack of objective evidence to support plaintiff’s claim.
Because the record does not indicate that plaintiff's case
was affected by alleged cultural bias, this objection is
over-ruled.
Because plaintiff’s objections to the Magistrate’s
report and recommendation are overruled, and the stan-
dard of review under 28 U.S.C. § 636(b)(1) having been
met, IT IS ORDERED that the Magistrate’s report and
recommendation is ADOPTED;
FURTHER ORDERED that plaintiff’s motion for sum-
mary judgment and/or remand is DENIED;
FURTHER ORDERED that defendant’s motion for
summary judgment is GRANTED.
App. 17
DATED: July 14, 1994.
SO ORDERED.
/s/ Oliver W. Wanger
Oliver W. Wanger
UNITED STATES
DISTRICT JUDGE
C:/Saelee.2
App. 18
UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF CALIFORNIA
CHIAD SAELEE,
(S.S. #566-91-7485,
CV-F-93-5220-OW W-DLB
REPORT AND
Plaintiff, RECOMMENDATION
wn RE: PLAINTIFF’S
MOTION FOR
SECRETARY OF HEALTH SUMMARY
AND HUMAN SERVICES, JUDGMENT/REMAND
AND DEFENDANT’S
CROSS-MOTION FOR
SUMMARY JUDGMENT
Defendant.
i
Plaintiff, Chiad Saelee, seeks judicial review of a final
decision of the Secretary of Health and Human Services
(“Secretary”) denying her application for disability-based
supplemental security income (“SSI”) benefits pursuant
to Title XVI of the Social Security Act (“Act”). Jurisdiction
exists under 42 U.S.C. § 405 (g).
FACTS AND PRIOR PROCEEDINGS
Plaintiff filed two applications for disability-based
SSI benefits. An April 15, 1988 application (alleging dis-
ability since January 15, 1985 due to hearing and vision
loss and blackouts) was denied initially and upon recon-
sideration. Mrs. Saelee requested a hearing on October 6,
1988. Prior to a hearing, she withdrew her request and on
April 26, 1989, a dismissal order was issued by an
Administrative Law Judge (“ALJ”). Mrs. Saelee subse-
quently filed another application on December 6, 1989,
(alleging disability since February 1, 1975 due to head-
aches, vision and hearing loss, blackouts, dizziness, and
vuishitaicbseeiabeie aac tie aa ait aa Sa ec et ee
PALES
Sas Lileched Ga Mi eae
is Senlaasihhdctaea vig bi tases, 2
App. 19
chest pain) which was denied initially and after recon-
sideration. An ALJ conducted a hearing on October 23,
1990, and issued an adverse decision on January 24, 1991.
The plaintiff requested review of the ALJ’s decision
by the Appeals Council, which remanded on September
16, 1991. The Appeals Council directed a reevaluation of
plaintiff’s mental condition and a vocational expert’s tes-
timony. The plaintiff appeared with counsel, Mr. Robert
Ishikawa. She testified before an ALJ with the assistance
of both a Laotian and Mien interpreter.
Mrs. Saelee was born in Laos on June 14, 1950. She
has no formal education and is illiterate in English. (AR
25) Her only employment was in Laos as a rice farmer.
She emigrated to Thailand for ten years, then to the
United States. (AR 271)
Mrs. Saelee’s medical complaints include sinusitis,
hypertension, chronic lower back pain, chronic leg pain,
vision and hearing loss, and depression. She has been
diagnosed and successfully treated for sinusitis and
hypertension. (AR 401)
All the medical reports state no objective medical
basis was found for the claims of chronic back and leg
pain, severe depression and severe vision impairment.
(AR 182, 223, 234, 235, 238, 239, 241, 250, 296, 336, 417,
and 443)
Plaintiff's hearing loss has been tested in 1987, 1988,
and 1990. The audiometric testing showed no hearing
response in her right ear and decreased hearing response
in her left ear. She was given a hearing aid and subse-
quently a more powerful hearing aid which increased her
App. 20
hearing ability as well as her speech reception threshold.
(AR 423) Evidently, she can understand normal conversa-
tion when wearing the aid. (AR 241, 250, and 336)
Plaintiff also claims bilateral vision loss. A
pterygium! in her left eye extending over the corneal
margin was removed. (AR 234, 333) Dr. Graham adminis-
tered a visual evoked response test. The results were
normal. Dr. Graham reported widely varying visual acu-
ity, and although the visual fields examination was
grossly abnormal, he did not consider it diagnostic. (AR
238) In addition, other physicians noted that plaintiff was
able to successfully maneuver around obstacles in their
offices, despite her claims of blindness. (AR 234, 333) Dr.
George Porter’s January 12, 1990 report states he found
the pterygium had reoccurred over the left eye, but both
lenses were clear. There was no evidence of hemorrhages
or exudates. However, Dr. Porter found a small amount
of simple myopic astigmatism in both eyes, secondary to
hysteria or malingering. No pathological evidence existed
to support her claimed visual disability. (AR 333)
Mrs. Saelee has claimed depression for several years.
(AR 443) She has received psychiatric examinations (AR
235, 250, 347, and 431) and counseling from the Merced
County Department of Mental Health. (AR 431) Plaintiff
was referred to Southeast Asian woman’s group therapy
for socialization. The psychiatric consultants and treating
physicians gave various diagnoses including unspecified
1 A fleshy growth of conjunctiva (lines the back of the eye
lid) onto the cornea. The Merck Manual, 15th Ed., Pg. 2218
App. 21
depressive disorder, undifferentiated somatoform disor-
der (AR 235); mild depression and multiple somatic com-
plaints (AR 244); hypochondriasis (AR 347); major
depression, single episode, and somatization disorder
(AR 431); possible malingering with motives of secondary
gain (AR 250); and somatization, dependent-personality
disorder, auditory impairment and culture shock. (AR 443
and 486) Additionally, plaintiff’s counselor reported she
was well oriented, had a good memory, but had poor
insight. (AR 431-438)
Dr. Aleman, a treating physician, stated that Mrs.
Saelee’s ailments taken as a whole would make ii very
unlikely that she could perform any sedentary job. (AR
429) Dr. Hedberg’s consultative report on the other hand,
States that in view of all the medical evidence, Mrs.
Saelee’s symptoms are mild in nature, and are based
largely on culture shock factors. When taken as a whole
they would not prevent her from performing sedentary
work. (AR 467) Additionally, the Vocational Expert, Dian
Bower, testified that, considering her limitations, plaintiff
can perform light sedentary work. (AR 143)
Based upon this record, the ALJ issued his decision
on January 24, 1991 denying plaintiff’s claim for benefits.
Thereafter, the Appeals Council denied Mrs. Saelee’s
request for review of the hearing decision and on April 2,
1993, plaintiff timely filed her complaint in this case.
The matter is currently before the Court on plaintiff’s
Motion for Summary Judgment/Remand and Defen-
dant’s Cross-Motion for Summary Judgment, which were
referred, without oral argument, to Dennis L. Beck,
United States Magistrate Judge, pursuant to 28 U.S.C.
App. 22
§ 636 (b)(1)(B) and Rule 305 of the Local Rules of Practice
for the United States District Court, Eastern District of
California, for a Report and Recommendation. For the
reasons that follow, the Magistrate Judge recommends
that the Court affirm the Secretary’s final decision deny-
ing plaintiff benefits.
SCOPE OF REVIEW
Congress has provided a limited scope of judicial
review of the Secretary’s decision to deny benefits under
the Act. In reviewing findings of fact with respect to such
determinations, the court must determine whether the
decision of the Secretary is supported by substantial evi-
dence. 42 U.S.C. § 405 (g). Substantial evidence means
“more than a mere scintilla,” [Richardson v. Perales, 402
U.S. 389, 402 (1971)], but less than a preponderance.
Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir.
1975). It is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Rich-
ardson, supra, 402 U.S. at 401. The record as a whole must
be considered, weighing both the evidence that supports
and the evidence that detracts from the Secretary’s con-
clusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
In weighing the evidence and making findings, the Secre-
tary must apply the proper legal standards. E.g., Burkhart
v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court
must uphold the Secretary’s determination that the plain-
tiff is not disabled if the Secretary applied the proper
legal standards, and if the Secretary’s findings are sup-
ported by substantial evidence. See, Sanchez v. Secretary of
Health and Human Services, 812 F.2d 509, 510 (9th Cir.
1987).
a a
App. 23
REVIEW
In order to qualify for benefits, a plaintiff must estab-
lish that she is unable to engage in substantial gainful
activity due toa medically determinable physical or men-
tal impairment which has lasted or can be expected to last
for a continuous period of not less than 12 months. 1382c
(a)(3)(A) (SSI disability benefits). A claimant “will be
found disabled only if the impairment is so severe that,
considering his age, education, and work experience, he
is unable to ‘engage in any other kind of substantial
gainful work which exists in the national economy.’ ”
1382c (a)(3)(B) (SSI disability benefits).
In an effort to achieve uniformity of decisions, the
Secretary has promulgated regulations which contain,
inter alia, a five-step sequential disability evaluation pro-
cess. 20 C.ER. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1993)2.
Applying steps one through three of this Process, the ALJ
found that: (1) Plaintiff has not engaged in substantial
gainful activity since April 15, 1988, the date of her prior
application; (AR 25) (2) plaintiff suffers from sinusitis,
mild depression, a corrected severe hearing impairment,
and a visual impairment; but (3) 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. Therefore, disability cannot be estab-
lished pursuant to 20 C.FR. § 416.920(e). (AR 24-26)
At step four, the ALJ found that plaintiff was unable
to perform sedentary work requiring binaural hearing.
* All references are to the 1993 version of the Code of
Federal Regulations unless otherwise noted.
App. 24
The ALJ also found that plaintiff’s mild depression com-
plicated by her cultural background affects her ability to
understand and follow complex instructions. (AR 25)
At step five, the ALJ found that a significant number
of other jobs existed which plaintiff remained capable of
performing and thus concluded that Mrs. Saelee was “not
disabled.” (AR 25)
On appeal, plaintiff claims the ALJ’s finding of no
severe mental impairment was not supported by substan-
tial evidence. The ALJ’s findings do not specifically state
that plaintiff has “no mental impairment”, simply that
she has a “severe” impairment associated with a loss of
hearing in her right ear, with a factitious disorder or mild
depression, (AR 24) but “ . . . 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.” (AR 24)
At step two of the sequential disability analysis, the
“severity regulation” provides that “[i]f you do not have
any impairment . . . which significantly limits your
. . ability to do basic work activities, we will find that
you do not have a severe impairment and are therefore,
not disabled. We will not consider your age, education,
and work experience.” 20 C.F.R. § 416.920(c). The validity
of the severity regulation was confirmed by the United
States Supreme Court in Bowen v. Yuckert, 482 U.S. 137,
107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
Under this regulation, the Secretary must determine,
“on a strictly medical basis and without regard to voca-
tional factors, whether the individual’s impairments, con-
sidered in combination, are medically severe.” Yuckert,
OL ge TT aT
oF usher ica eect ee EEO
App. 25
482 U.S. at 147, 107 S.Ct. at 2296, 96 L.Ed.2d 119 (1987)
citing S.Rep. No. 98-466 P- 22 (1984) (the Senate Report
which accompanied the 1984 amendments to the Act.)
Where they are not, “[the claimant] is not eligible for
benefits, and there is no reason for the Secretary to con-
sider [the claimant's] age, education, and work experi-
ence.” Id.
The Ninth Circuit, on remand from the U. S. Supreme
court, in Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 1988),
took the position that the current severity regulation is to
be read in light of the earlier regulations defining severe
impairment adopted in 1968, since the new terminology
was intended to clarify, not to change, the definition of
“severe impairment.” id., at 306. The 1968 regulations
defined a non-severe impairment as,” ... a slight neu-
rosis, slight impairment of sight or hearing, or other
slight abnormality or combination of abnormalities.” 20
C.ER. § 404.1520 (a) (1968).
The Court noted that the Secretary’s interpretation of
“not severe” impairments contained in Social Security
Ruling (“SSR”) 85-28 also suggests that the severity regu-
lation should be applied in light of the 1968 regulation.3
Yuckert, supra, 841 F.2d at 306. According to this ruling, an
impairment or combination of impairments is found “not
severe” and a finding of “not disabled” will be made at
this step when medical evidence establishes only a slight
abnormality or a combination of slight abnormalities
which would have no more than a minimal effect on an
3 The Yuckert Court declined to construe SSR 85-28.
Yuckert, supra, at 1564, n. 12.
App. 26
individual’s ability to work, even if the claimant’s age,
education, or work experience were specifically consid-
ered.
A mental impairment will be found to be non-severe
if the rating for daily living and social functioning is none
or slight, the rating for concentration, persistence and
pace is never or seldom, and the rating for deterioration
or decompensation in work or work-like settings is never.
20 C.F.R. § 416.920a (c)(1)
In this case, the ALJ concluded that plaintiff did not
suffer from a “severe” mental impairment as contem-
plated by the regulations. This finding is supported by
substantial evidence of record. Several doctor’s consulta-
tive reports and treating physicians reports found plain-
tiff to be suffering from mild depression,
hypochondriasis, and/or slight personality disorder. (AR
244, 347). None of the doctors found evidence of psycho-
tic process, nor that plaintiff was delusional or hallucinat-
ing. (AR 235, 244, 250, 347, 431, 443, and 486). Dr. Parayno
diagnosed the plaintiff's Global Assessment of Function-
ing* (“GAF”) at 50. (AR 347) However, Dr. Hedburg
testified that 50, the scale mid point, is sometimes given
without consideration to its implications. Further, if a low
level of functioning exists, it is due to plaintiff’s cultural
assimilation problems, not a psychiatric disorder. (AR
122) Dr. Hedburg also took into account the lack of any
4 The clinician can give an overall judgment of a person’s
psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness, excluding
physical or environmental limitations. Diagnostic and Statistical
Manual of Mental Disorders, 3rd Ed Revised, Pgs. 12, 20
ee
App. 27
medical basis for plaintiff’s complaints. In a 1992 report,
Dr. Jeffries gave a GAF of 21. (AR 486) Dr. Hedburg
testified that this low figure conflicts with Dr. Jeffries
diagnosis of moderate impairments. The low GAF rating
may be a result of plaintiff’s total but voluntary depen-
dence on her family to take care of her. (AR 132)
The Court finds these consultative reports constitute
substantial evidence from which the AL] could find that
Plaintiff does not suffer from a “severe” mental impair-
ment. Although the reports from Dr. Aleman show vari-
ances in plaintiff’s depression, it is the ALJ who must
interpret the evidence. Neither the District Court nor the
Court of Appeals can substitute its own determination of
what the evidence shows for the ALJ’s conclusion if there
is sufficient evidence to support the AL]’s outcome. Key v.
Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
Similarly, the ALJ found that piaintiff’s lower back
Pain, dizziness, loss of vision, sinusitis, and hypertension
are not “severe” impairments. (AR 24) There is no objec-
tive evidence of record that shows plaintiff suffers from
an impairment that is reasonably likely to cause the
above complaints other than the severe hearing loss,
which is corrected with a hearing aid. Therefore, the ALJ
was correct in finding them “not severe” and in discount-
ing plaintiff’s testimony regarding pain under Social
Security Ruling 88-13 and Varney v. Secretary of Health and
Human Services, 859 F.2d 1396 (9th Cir. 1988).
Additionally, plaintiff appeals the ALJ's rejection of a
treating source opinion of disability. Plaintiff contends
the ALJ failed to provide sufficient reasons to justify
App. 28
rejection of her treating physician’s opinion. More speci-
fically, plaintiff argues that it was error for the ALJ to rely
on the opinion of a nontreating physician in place of her
treating physician, Dr. Aleman’s opinion. The Court dis-
agrees.
The Ninth Circuit has held that a treating physician’s
opinion is to be afforded great weight in disability cases
because he “is employed to cure and has a greater oppor-
tunity to know and observe the patient as an individual.”
Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The
treating physician’s opinion is not, however, conclusive
as to either a claimant's physical condition or the ultimate
issue of disability and may be disregarded by the ALJ
even where it is not contradicted. Rodriguez v. Bowe, 876
F.2d 759, 761-62 & n. 7 (9th Cir. 1989); Cotton v. Bowen, 799
F.2d 1403, 1408 (9th Cir. 1986) To reject the uncon-
troverted opinion of a treating physician, the ALJ must
set forth clear and convincing reasons for doing so.
Rodriguez, supra, 876 F.2d at 761-62. Where the opinion of
the treating physician conflicts with that of an examining
physician, the ALJ must present “specific, legitimate rea-
sons for doing so that are based on substantial evidence
in the record.” Magallanes v. Bowen, 881 F.2d 747 (9th Cir.
1989) (citations omitted). This rule does not apply when a
nontreating physician bases his opinion on independent
clinical findings which differ from those of the treating
physician. Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.
1985). When a nontreating physician’s opinion rests on
objective clinical tests, it must be viewed as substantial
evidence. Id.
The record in this case has shown that Dr. Hedberg’s
consultative report is based on his review of all the
App. 29
doctor’s reports with their underlying clinical findings,
including Dr. Aleman’s records. Dr. Hedberg’s expert
opinion is that plaintiff’s mild Symptoms taken as a
whole, would not prevent performance of sedentary
work. (AR 467) Therefore, the record contains substantial
evidence supporting the ALJ’s decision Jenying plaintiff
benefits.
CONCLUSION
Based on the foregoing, the Magistrate Judge recom-
mends that the final decision of the Secretary denying the
plaintiff benefits be AFFIRMED. I further recommend
that plaintiff’s Motion for Summary Judgment and/or
Remand be DENIED and defendant’s Motion for Sum-
mary Judgment be GRANTED.
This report and recommendation is submitted to the
Honorable Oliver W. Wanger, United States District Court
Judge, pursuant to the Provisions of 28 U.S.C. § 631 (b)
(1)(B) and Rule 305 of the Local Rules of Practice for the
United States District Court, Eastern District of Califor-
nia. Within ten court days (plus three days if served by
mail) after being served with a copy, any party may serve
on opposing counsel and file with the court written objec-
tions to such proposed findings and recommendations.
Such a document should be captioned “Objections to
Magistrate Judge’s Report and Recommendations.” Rep-
lies to the objections shall be served and filed within ten
(10) court days (plus three days if served by mail) after
service of the objections. The Court will then review the
Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
(b)(1).
App. 30
FAILURE TO FILE OBJECTIONS WITHIN THE
SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE
MAGISTRATE JUDGE’S FACTUAL FINDINGS, BUT
WILL NOT AFFECT YOUR RIGHT TO APPEAL THE
CONCLUSIONS OF LAW.
DATED: March 16, 1994
/s/ Dénnis L. Beck
DENNIS L. BECK
United States Magistrate
Judge
App. 31
(Seal) Social Security Administration
DEPARTMENT OF HEALTH
& HUMAN SERVICES
Refer to: S3GCP Office of Hearings and Appeals
566-91-7485 PO Box 3200
Arlington VA 22203
MAR 9 1993
ACTION OF APPEALS COUNCIL
ON REQUEST FOR REVIEW
Ms. Chiad O. Saelee
549 Canal St.
Merced, CA 95340
Dear Ms. Saelee:
The request for review of the Administrative Law Judge's
decision in your case has been considered.
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 submit-
ted 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. (These provisions are
contained in 20 CFR 404.970 for Social Security claims
App. 32
under Title II of the Social Security Act and in 20 CFR
416.1470 for Supplemental Security Income claims under
Title XVI of the Act.)
The Appeals Council has concluded that there is no basis
under the above regulations for granting your request for
review. In reaching this conclusion, the Appeals Council
has considered the applicable statutes, regulations, and
rulings in effect as of the date of this action. Accordingly,
your request is denied and the Administrative Law
Judge’s decision stands as the final decision of the secre-
tary in your case.
The Appeals Council also considered the arguments
made by your representative in the letter dated Septem-
ber 22, 1992 and the April 2, 1992 statements made by Dr.
Aleman, but decided they provided no basis to change
the hearing decision. The information provided by Dr.
Aleman basically represents a rephrasing of his prior
assessment. The Administrative Law Judge acknowl-
edged that opinion and cited reasons (which are sup-
ported by the record) for not accepting it.
In addition, the medical expert and the Administrative
Law Judge explained why they were not accepting certain
findings or conclusions contained in the reports of record.
The medical expert stated that he considered all the
reports of record, and provided specific information in
support of his opinions regarding the severity of your
mental problems. In addition to the medical expert, two
psychiatrists also discussed the effect of cultural consid-
erations on your ability to function. Further, your repre-
sentative raised no objection during the oral hearing
regarding Dr. Hedberg serving as a medical expert.
pe ee ee ee
App. 33
Although the Psychiatric Review Technique form
appended to the decision reflects your mental problems
to be “non-severe,” the Administrative Law Judge deter-
mined that you cannot perform work involving complex
instructions. Moreover, the vocational expert took that
limitation into account when she cited the jobs the hypo-
thetical individual could perform. As far as your alleged
physical problems, the record shows that those com-
plaints have not been confirmed by clinical and labora-
tory diagnostic techniques, as required by section
223(d)(3) of the Social Security Act.
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)) for claims under Title II
and in section 1631(c)(3) of the Act (42 U.S.C. 1383(c)(3))
for claims under Title XVI.
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
App. 34
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 Pro-
cedure.
Sincerely yours,
ORIGINAL SIGNED BY
Catherine Ravinski
Administrative Appeals Judge
ce:
Robert Ishikawa, Esq.
HO, Fresno, CA (ALJ Dail, Jr.)
DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS
DECISION
IN THE CASE OF CLAIM FOR
Chiad Orn Saelee S
upplemental Security
(claimant) enn
566-91-7485
(Wage Earner) (Social Security Number)
STATEMENT OF THE CASE
The claimant filed an application for supplemental secu-
rity income benefits on April 15, 1988, which was denied
initially and after reconsideration. She filed a request for
RES i
Bi
A ETERS. ER
ee
App. 35
hearing on October 6, 1988; however, she withdrew her
request prior to a hearing, and a dismissal order was
issued by an Administrative Law Judge on April 26, 1989.
Thereafter, she filed her current application on December
6, 1989, which was denied initially and after reconsidera-
tion. I conducted a hearing on October 23, 1990, and
issued an adverse decision on January 24, 1991.
The claimant requested review of my decision by the
Appeals Council, which remanded by order dated Sep-
tember 16, 1991, directing reevaluation of the claimant's
mental condition and testimony of a vocational expert.
The record was developed further as described herein,
and a supplemental hearing was held in Fresno, Califor-
nia, on April 7, 1992. Testifying at the supplemental hear-
ing were Dr. Allan G. Hedberg, a psychologist and
medical expert, and Ms. Dian Bower, a vocational expert.
The claimant is represented by Mr. Robert Ishikawa,
Attorney at Law.
The general issue in this case is whether the claimant is
under a “disability” within the meaning of section 1614 of
the Social Security Act. The specific issues to be decided
are whether the claimant has any severe, medically deter-
minable physical or mental impairment(s) which make
the claimant unable to engage in any substantial gainful
activity; whether any such impairment(s) found can be
expected to result in death or last for a continuous period
of not less than 12 months; and, if found disabled, when
such disability began.
In order to resolve these issues, a five-step sequential
evaluation process has been established under 20 CFR
416.920. In applying those sequential steps, after having
App. 36
reviewed with care all the documentary evidence of
record, and after having considered the testimony at the
hearings and arguments made on the claimant's behalf, I
conclude that work which the claimant is capable of
performing exists in significant numbers in the economy.
Consequently, it must be found that the claimant is not
disabled within the meaning of the Act.
RATIONALE
The claimant was born on June 14, 1950, and is 42 years of
age. She has not received any formal education and is
unable to read, write, speak or understand English. The
claimant has not engaged in substantial gainful activity in
the past 15 years. Disability is alleged due to a combina-
tion of problems associated with hearing, blackouts,
vision, chest pains, seizures and depression (Exhibit 6).
The medical record details care associated with child-
births on December 28, 1987, and March 1, 1990. During
her second pregnancy, the claimant developed diabetes
mellitus and was placed on insulin therapy (Exhibit 39).
Subsequent to the latest birth, she had an episode of
postpartum depression and was referred to a mental
health clinic (Exhibit 40). The claimant has been treated
symptomatically for sinusitis, taking primarily Actifed.
Additionally, it was noted that the claimant was hyper-
tensive, and she was prescribed medication which con-
trolled the condition reasonably well (Exhibit 41).
Audiometric testing was performed in 1987, 1988 and
1990, and it was noted that she had no hearing response
in her right ear and decreased hearing in her left ear. The
latter was improved with a more powerful hearing aid,
a
App. 37
and her speech reception threshold was also increased
significantly (Exhibit 42). When she wears her hearing
aid, it appears that the claimant is able to understand
normal conversation without difficulty (Exhibits 18; 20;
37, p. 1).
Although the claimant claims bilateral loss of vision, the
only objective medical finding was a pterygium in the left
eye extending over the corneal margin, and even this was
removed (Exhibits 14, 35). She underwent a visual evoked
response test which was essentially normal (Exhibit 16).
Dr. Gary C. Graham reported widely varying visual acu-
ity, and although his examination was grossly abnormal,
he did not consider it diagnostic (Exhibit 16). Attending
Physicians reported in 1988 and 1990 that, although she
claimed she was blind, the claimant was able to maneu-
ver around obstacles in their offices without difficulty
(Exhibits 14, 35). A report by Dr. George W. Porter dated
January 12, 1990, indicates he had treated the claimant off
and on for her decreased vision. The only relevant find-
ing included a pterygium which had recurred over the
left eye, although her lenses were clear. There was no
evidence of any hemorrhages or exudates. Refraction test-
ing revealed a small amount of simple myopic astigma-
tism in both eyes. It was Dr. Porter’s assessment that the
claimant had amblyopia probably secondary to hysteria
or malingering. There was no evidence to demonstrate a
pathology which would account for her claimed visual
disability (Exhibit 35).
The claimant has undergone several consultative and
other psychiatric examinations (Exhibits 15, 20, 38, 44).
They resulted in various diagnoses, to include depressive
disorder, not otherwise specified; undifferentiated
App. 38
somatoform disorder, (Exhibit 15); hypochondriasis
(Exhibit 38); major depression, single episode, and
somatization disorder (Exhibit 44); and possible malin-
gering (Exhibit 20). Counseling notes from the Merced
County Department of Mental Health (Exhibit 44) indi-
cate the claimant underwent counseling from a social
worker, Sao Yang, M.S.W., and was prescribed Amitrip-
tyline. She was also referred to ongoing women’s group
therapy for socialization and peer support. Her counselor
reported that the claimant was able to communicate
through an interpreter. Her memory was described as
being good and she was well oriented, although she was
described as having poor insight (Exhibit 44).
A consultative psychiatric examination performed by Dr.
Maximo A. Parayno on February 17, 1990, found the
claimant alert, although she was not well oriented to
place or person. Her affect was flat, and her mood
appeared mildly depressed. The claimant was relevant in
her responses. Because of her lack of education, she could
not perform serial sevens. Dr. Parayno diagnosed hypo-
chondriasis. He specifically noted that upon review of the
medical records, there was no organic basis for her physi-
cal symptoms. She did not have a history of serious
medical problems related to an injury or infection.
Although the claimant continued to complaint of sensory
deficits, primarily related to her vision, these complaints
were not corroborated by the record. Her activities of
daily living were restricted, but this was consistent with
her culture in which such an individual becomes com-
pletely dependent and her needs are met by other family
members (Exhibit 38).
App. 39
Reports in 1988 from the Family Practice Clinic also con-
tain the assessment of depression with multiple somatic
complaints (Exhibit 19).
The report of Dr. David W. Rodgin (Exhibit 15), another
psychiatric consultative examiner on June 7, 1988, indi-
cated the claimant was able to respond to the translator’s
questions although she did not always provide the infor-
mation. Dr. Rodgin opined the claimant would gain some
benefit from attending her immigrant group meetings on
a more regular basis. He indicated her Symptoms were in
the categories of a depressive disorder, not otherwise
specified, and also an undifferentiated somatoform disor-
der. Dr. Rodgin stated these symptoms were potentiated
by severe cultural shock. Dr. Rodgin reported that when
the claimant began the interview, she did not have any
type of noticeable limp, but upon leaving the room after
the evaluation, she limped heavily on the right side.
A consultative psychiatric examination by Dr. Wesley
Fielding on September 6, 1988, similarly did not report
any type of psychiatric disability and indicated possible
malingering and secondary gain (Exhibit 20).1
’ At the supplemental hearing, the claimant's attorney
objected to Exhibit 20, which had already been admitted into
evidence without objection. He based his objection upon the fact
that Dr., Fielding had used two interpreters. This motion/
objection is denied. It goes to the weight of the evidence not its
admissability. As Dr. Hedberg, the medical expert, testified and
as discussed below, this practice sometimes must be followed
because of the exigencies of interpretation (the claimant's native
language is Mien) and must be considers4 hi assigning the
appropriate weight to an evaluation. Dr. Hedberg considered
this interpretation difficulty in arriving at his opinion.
App. 40
The claimant was treated in 1989 by Dr. John Aleman of
the Childs Avenue Clinic (Exhibits 37, 43). Dr. Aleman
reported that her hearing loss was not too severe. She can
hear the spoken word when she wears a hearing aid on
the left side. He reported there was no muscle loss,
atrophy or objective findings or abnormalities to account
for her subjective complaints of dizziness or tendency to
limp. He reported she had a grossly normal affect. There
was no evidence of muscle weakness in either the lower
or upper extremities. Dr. Aleman was unable to demon-
strate any clear neurological deficits. He noted that the
language barrier and the claimant’s tendency to somati-
cize made diagnoses even more difficult. Various medica-
tions including antidepressants and nonsteroidal anti-
inflammatories were tried for her various complaints
with little symptomatic improvement. At the request of
the claimant’s representative, Dr. Aleman submitted on
August 9, 1990, a letter regarding the claimant’s multiple
medical problems, indicating many were caused by or
related to a post-traumatic stress syndrome, depression
or anxiety. He reported she had anatomical disorders
including a left-sided cataract, bilateral hearing loss, and
chronic sinusitis. He reported she experienced chronic
left leg pain of uncertain etiology that resulted in a limp
and unsteady gait and chronic dizziness of uncertain
etiology. He was unable to demonstrate any clear neuro-
logical or anatomical lesions to explain her chronic left
leg pain or chronic lower back pain; however, he believed
this was secondary to degenerative joint disease of the
spine, even though no such condition was demonstrated
on x-ray. It was his opinion that none of the problems the
App. 41
claimant had individually would prevent her from pursu-
ing a sedentary job; however, her history of lower back
pain, leg pain, dizziness, hearing loss, visual difficulties,
depression and anxiety taken as a whole make it very
unlikely that she could realistically perform any seden-
tary job (Exhibit 43).2
_ Subsequent to the initial hearing, reports were submitted
from Dr. Robert B. Culberson dating from August 13 to
October 16, 1990. This was Outpatient care associated
with sinusitis, which was treated conservatively. A CT
scan of the claimant’s sinuses revealed only mild ethmoid
sinusitis (Exhibit 46, p. 2).
Additionally reports were Supplied from the Merced
County Department of Mental Health dating from May
1990 through February 1992. These reports describe the
claimant as suffering from a somatization and dependent-
personality disorder as well as an auditory impairment
and culture shock. She was referred to a woman’s sup-
port group, with little apparent improvement in her
symptoms. Specifically, she complained of multiple phys-
ical problems, to include blackouts when she became
2 I find specific, legitimate reasons for disregarding this
opinion. It was given for the Purpose of this proceeding and
there is no objective medical basis for the opinion. Perhaps most
important is the concession by Dr. Aleman that he was unable to
establish any organic basis for most of her complaints and was
relying on her subjective allegations. As discussed later, I find
those allegations to be entirely untrustworthy.
App. 42
angry, lack of energy, chest pains, headaches, back pains,
and an intermittent inability to move or speak (Exhibits
47, 55).
I referred the medical evidence to Allan G. Hedberg,
Ph.D., a clinical psychologist and medical expert. He
submitted a written report of November 13, 1991 (Exhibit
50; hereinafter referred to as the Hedberg Report), and he
was cross-examined at the supplemental hearing. The
Hedberg Report notes that the claimant’s complaints
included chronic leg pain, chronic visual complaints,
chronic hearing loss, an alleged seizure disorder, chronic
generalized pain syndrome, and chronic complaints of
dizziness, coughing, bronchitis, gastritis and sinusitis.
The claimant’s subjective complaints were not substanti-
ated by any anatomical, physiological or psychological
diagnostic procedures. Rather, these complaints were
either rejected or suggested to be of a mild nature and not
a basis to conclude that she was disabled (Exhibit 50, p.
2). Overall, Dr. Hedberg did not believe that any of the
claimant’s impairments were severe even if they did have
a legitimate basis. His analysis included consideration of
the fact that the claimant may be setting forth a factitious
disorder for secondary gain. Dr. Hedberg commented
that the claimant did have a positive response to the
combination of medication, immigrant group therapy and
general advice regarding the care of her children. The
claimant’s symptoms may be aggravated by a cultural
conflict of wanting to return to Southeast Asia as com-
pared to staying in the United States where she feels
pressured to learn English and become adjusted to Amer-
ican culture (Exhibit 50, p. 4).
eo ee ee
App. 43
At the supplemental hearing, Dr. Hedberg testified that
he has read psychological literature involving Southeast
Asians, specifically involving psychological testing, psy-
chotherapy, religion, and culture. Based upon his training
as a psychologist, he is capable of analyzing medical
reports, aitriough he does not make diagnoses as a medi-
cal doctor would. Additionally, he has taught courses on
functional overlay and managed the pain clinic at the
Fresno Community Hospital. In reference to his comment
on Exhibit 50, p. 3, that the claimant had negative audi-
ological findings, Dr. Hedberg stated that the claimant's
allegations that she was not able to hear were not consis-
tent with the findings in the record which establish that
she could hear normal conversational tones with her left
ear. He noted that six or seven other reports in the record
spoke to this issue. Overall, the record establishes that
her hearing is not dysfunctional. In reference to Exhibit
50, p. 2, paragraph 7, Dr. Hedberg clarified that the
psychiatrists he relied on primarily were Drs. Fielding
and Parayno, and to a lesser degree, Dr. Rodgin. The
conclusions expressed in paragraph 7 of his report were
based on Exhibits 15, 20 and 38. Dr. Parayno’s evaluation
supported the existence of a cultural component to the
claimant’s symptoms with minimal psychiatric factors.
He is of the opinion that the claimant suffers from only
mild depression, with most of her symptoms being asso-
ciated with cultural factors. There were no organic bases
for the claimant's subjective complaints. Her problems
are mainly associated with cultural adaption, as opposed
to being of a psychiatric nature. He Stated that cultural
factors mitigate psychiatric conditions, and if conduct is
normal in a culture, it is not considered a psychiatric
App. 44
disorder. Dr. Hedberg stated that a factitious disorder is a
psychiatric disorder which involves alleging symptoms in
order to obtain a sick role. He distinguished it from
malingering when it is done to obtain a specific identifia-
ble goal such as benefits or family support. He described
hypochondriasis as care-seeking behavior with no
organic basis; essentially it is attention seeking. A depen-
dent personality is not, per se, a psychiatric disorder, but
rather, a lifestyle. Based upon his experience, Dr. Hed-
berg stated that conduct similar to the claimant’s is not
uncommon in the claimant’s culture.
In reference to the global assessment of functioning of 50
provided by Dr. Parayno, Dr. Hedberg stated that this is
inconsistent with the findings in Dr. Parayno’s report,
and he noted that many practitioners select “50” as the
midpoint of the scale with no particular underlying ratio-
nale. Although Dr. Fielding did not have a certified inter-
preter directly familiar with the claimant’s language, he
did appear to use caution in interpreting the responses
provided by the interpreters who were present. Dr. Hed-
berg stated that responses in this manner are considered
along with the observations of the psychiatrist in order to
weigh consistency and credibility. Simply because Dr.
Fielding used a three-way interpretation did not mean
that his report was invalid, and at times, Dr. Hedberg has
been forced by circumstances to use similar procedures.
With respect to Dr. Fielding’s discussion of the claimant’s
lack of daily activities, in terms of the Hmong and Mien
culture, Dr. Hedberg reported that studies have been
performed in Southeast Asian Centers in St. Paul and San
Diego, and there are numerous psychological publica-
tions which have spoken to this matter. In Dr. Hedberg’s
App. 45
professional opinion, such conduct is within the Hmong /
Mien cultural pattern.
In refererice to the Hedberg Report, Dr. Hedberg stated
that his comments on page 2, last paragraph, relate to the
lack of anatomical, physiological or psychological find-
ings supporting the claimant’s complaints. This assess-
ment is substantiated by the report of Dr. Fielding and by
Exhibits 15, 35, 38, 41 and 43. Dr. Hedberg stressed that
he was not taking the claimant out of her culture and
judging her by standards of the American culture. He
pointed out that culturalization is not a medical problem,
but is a social problem. In his opinion, the overall evi-
dence establishes that Ms. Saelee has only mild depres-
sion which is enhanced by her cultural background.
With respect to Exhibit 44, page 3, which is the purported
assessment of Dr. Jeffers as the claimant's treating physi-
cian, Dr. Hedberg pointed out that Dr. Jeffers was not the
claimant’s treating physician, but rather, her therapist
was a Ms. Lee. Dr. Hedberg stated that it is common for
county mental health physicians to sign off on reports in
this manner. Exhibits 35, 38 (page 2), 43 (page 2), and 44
all support his conclusion that the claimant suffers from
only mild depression. This conclusion is consistent with
the prescription of Elavil, which is often used in connec-
tion with mild depression or to help a person sleep. In Dr.
Hedberg’s opinion a global assessment of functioning of
45 (Exhibits 44, p. 3; 21, p. 1) is not consistent with the
description of the claimant in the medical reports. Those
reports indicate the claimant has a moderate degree of
depression which would be inconsistent with this global
assessment of functioning, which would mean that the
claimant was totally dependent. Dr. Hedberg’s medical
App. 46
assessment (Exhibit 50, pp. 10-12) used the definitions of
“fair” and “good” as they are defined in the assessment
form (Exhibit 50, p. 10).
At the initial hearing, the claimant testified that she did
not know her age, date of birth, or if she had any educa-
tion. She reported performing subsistence farming in
Laos raising corn, rise, chickens and cattle. The claimant
was unable to recall how many children she had and did
not know the names of any of her treating physicians.
Generally, Ms. Saelee alleged poor memory and visual
and hearing loss. However, I noted that she was able to
hear the interpreter who sat on her left side. The claimant
alleged that she suffered from pain involving her waist,
legs, and right knee. Because of her symptoms, she
allegedly had difficulty sleeping. The claimant walked
with a four-pronged cane, but could not explain why she
needed to use it. She stated that she cries often because
her life is not happy. The claimant could not relate
whether she lived in an apartment or a house but did
know that she lived with her husband and children. She
did not perform any of the-household chores such as
cooking, cleaning, or shopping. During a typical day, she
took Meclizine one to four times because of dizziness.
The claimant previously underwent surgery on her left
eye, and claimed that light now causes pain in her eye.
She maintained that she could not see or discern the
features of the interpreter who was sitting next to her
when she wore her dark glasses. When she takes her
glasses off, she can see a little light in her right eye but
nothing from her left eye. During a typical day, she stays
at home and is not active. Her sponsor comes to visit her
App. 47
occasionally, and her children may take her to the doc-
tors.
I have evaluated the claimant's subjective complaints
within the context of SSR 88-13 and 20 CFR 416.929. There
is substantial evidence in this record to refute the claim-
ant’s allegation of blindness. There is no ocular pathology
that would impair her vision, and a treating physician
has indicated that her visual acuity is far better than
tested. Accordingly, there is no organic pathology associ-
ated with her alleged visual loss, and there is likewise no
evidence of any associated severe functional loss as evi-
denced by the report and testimony of Dr. Hedberg.
Although the record indicates the claimant is deaf in her
right ear, with the use of a hearing aid the hearing in her
left ear is improved to near-normal levels. This is further
corroborated by an auditory brain stem response which
was obtained in September 1988 (Exhibit 42). This impair-
ment would preclude work which requires binaural hear-
ing.
Overall, the nature, location, onset, duration, frequency,
radiation and intensity of the claimant's alleged pain and
associated symptoms are extremely vague. There is no
clear evidence of any precipitating or aggravating factors
other than a claimed general inability to function. The
claimant is not taking the type or amount of pain medica-
tion which is consistent with a severe pain syndrome
(Exhibit 56). There was no evidence of any adverse side
effects from the medication she takes. The claimant does
not have any of the physical findings consistent with
chronic pain such as atrophy, muscle spasms, radicular
pain, loss of sensation, or decreased strength. The claim-
ant has not received the type of care consistent with
App. 48
chronic pain such as repeated emergency room visits, use
of a TNS unit, acupuncture, biofeedback, or attendance at
a pain clinic. As indicated by the persuasive testimony of
the medical expert, Ms. Saelee does not have any real
functional limitation and could even engage in the heavy
levels of exertion. Although the claimant's daily activities
are limited, Dr. Hedberg explained that this appears to be
more an aspect of her culture than the result of any type
of medical problem of a physical or psychiatric nature.
Accordingly, based upon the overall record presented,
and specifically including the persuasive testimony of Dr.
Hedberg, I did not find the claimant’s subjective com-
plaints to be credible or probative.
Under the sequential evaluation process, the second
determination is whether the claimant suffers from any
“severe” medically determinable impairment or combina-
tion of impairments, which are defined as more than
slight abnormalities that have more than a minimal effect
upon the claimant’s ability to work (SSR 85-28). The
claimant does have a “severe” impairment associated
with a loss of hearing in her right ear. She also has a
factitious disorder or mild depression, which are consid-
ered nonsevere because they only precludes [sic] work
which requires complex instructions. Her “severe”
impairment does not meet or equal the level of severity
discussed in any section of Appendix 1, Subpart P, of
Regulations No. 4. Thus, disability cannot be established
pursuant to 20 CFR 416.920(e).
At the fourth step, I conclude the claimant possesses the
residual functional capacity to engage in an unlimited
range of work activity from an exertional standpoint. This
record persuasively demonstrates that she does not have
App. 49
any type of exertional limitation. The only physical lim-
itation is an inability to perform work requiring binaural
hearing. My analysis is also corroborated by the opinion
of Dr. Hedberg, the medical expert, who testified per-
suasively at the hearing and supported his opinion by
references to the medical record as discussed above. In
this regard, he clearly testified that the claimant only
suffers from mild depression which is complicated by her
cultural background. As indicated, while this is not a
“severe” impairment under Social Security law, it does
affect the ability to understand and carry out complex
instructions.
Once it has been established that an individual does not
have any past relevant work history, as here, at step 5 of
the sequential process the burden of proof shifts to the
Secretary to establish that work which the claimant is
capable of performing exists in significant numbers in the
economy.
The vocational expert, Dian Bower, was asked to assume
an individual 41 years of age without formal education,
illiterate and unable to communicate in English, who has
an unlimited exertional capacity, but who is unable to
perform work which requires binaural hearing or the
following of complex instructions. She identified several
unskilled jobs which such an individual could perform:
factory line worker (approximately 39,000 jobs in the
region and approximately 100,000 in the nation); house-
keeper (6,100 and 70,000); farm laborer (4,900 and 60,000);
vegetable or fruit picker (6,900 and 60,000); dishwasher
3,800 and 35,000); and bench assembler (13,000 and
190,000). In response to questioning by the claimant’s
attorney, the vocational expert opined that even if the
App. 50
individual's ability to function independently is seriously
limited, this would not affect her ability to perform the
jobs identified. They are very structured, with the indi-
vidual knowing exactly what she has to do, and there is
relatively close supervision.
The Secretary sustains his burden by application of Sec-
tion 204.00 of the Medical-Vocational Guidelines (Appen-
dix 2, Subpart P, Regulations No. 4) as a framework in
conjunction with the testimony of the vocational expert.
They require a conclusion the claimant is not disabled.
FINDINGS
After careful consideration of the entire record, the
Administrative Law Judge makes the following findings:
1. The claimant has not engaged in substan-
tial gainful activity since April 15, 1988, the
date of her prior application, up to and
through the date of this decision.
2. The medical evidence establishes the claim-
ant has a hearing loss in the right ear, but
she does not have an impairment or combi-
nation of impairments listed in or medi-
cally equal to one listed in, Appendix 1,
Subpart P, Regulations No. 4.
3. The claimant’s subjective complaints, as
discussed in the body of this decision, are
not found to be credible.
4. The claimant has the residual functional
capacity to perform the nonexertional
requirements of work except for work
which requires binaural hearing or which
App. 51
involves complex instructions. There are no
exertional limitations.
The claimant does not have any past rele-
vant work history.
The claimant is 41 years old, which is
defined as a younger individual (20 CFR
416.963).
The claimant is illiterate and unable to
communicate in English (20 CFR 416.964).
If the claimant’s nonexertional limitations
did not significantly compromise her abil-
ity to perform work at all exertional levels,
section 204.00, Appendix 2, Subpart P, Reg-
ulations No. 4 indicates that a finding of
not disabled would be appropriate. If her
capacity to work at all levels were signifi-
cantly compromised, the remaining work
which she would functionally be capable of
performing would be considered in combi-
nation with her age, education, and work
experience to determine whether a work
adjustment could be made.
Considering the types of work which the
claimant is still functionally capable of per-
forming in combination with her age, edu-
cation and work experience, she can be
expected to make a vocational adjustment
to work which exists in significant numbers
in the national economy. Examples of such
jobs are factory line worker, housekeeper,
farm laborer, vegetable and fruit picker,
dishwasher and bench assembler. All of
these jobs exist in significant numbers in
the economy.
App. 52
10. 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 416.920(f)).
DECISION
It is the decision of the Administrative Law Judge that,
based on the applications filed on April 15, 1988, and
December 6, 1989, the claimant is not eligible for supple-
mental security income under sections 1602 and
1614(a)(3)(A) of the Social Security Act.
/s/ Joseph G. Dail, Jr.
Joseph G. Dail, Jr.
Administrative Law Judge
July 27, 1992
Date
App. 53
OHA PSYCHIATRIC REVIEW TECHNIQUE FORM
Name: Chiad Orn Saelee SSN: 566-91-7485
Assessment is for: Current Evaluation
Administrative Law Judge’s Signature Date
/s/ Joseph G. Dail, Jr. July 27, 1992
I. MEDICAL SUMMARY
A. Medical Disposition(s):
Impairment(s) Not Severe
B. Based Upon Category(ies):
12.07, 12.08
Il. Reviewer’s Notes (Does not apply to OHA)
Il. DOCUMENTATION OF FACTORS THAT EVI-
DENCE THE DISORDER (Evaluation of the exis-
tence of a sign or symptom CLUSTER or
SYNDROME for the Listed Disorder.)
PRES- AB-
ENT SENT
[] [x] A. 12.02 Organic Mental
Disorders
[ } pe: & ee Schizophrenic,
Paranoid and other
Psychotic Disorders
ss [x] 12.04 Affective Disorders
{ ] [x] D. 12.05 Mental Retardation
and Autism
[] [x] E. 12.06 Anxiety Related
Disorders
(x) [] F. 12.07 Somatoform Disorders
ee ee Se Personality Disorders
O
vs
[x]
App. 54
H. 12.09 Substance Addiction
Disorders
F. 12.07 Somatoform Disorders — Physical symptoms for
which there are no demonstrable organic findings or
known physiological mechanisms, as evidenced by at
least one of the following:
PRESENT-ABSENT-INSUFFICIENT EVIDENCE
1.
4.
[ ]
[x]
[x]
[ ]
[ ]
A history of multiple physical
symptoms of several years dura-
tion beginning before age 30, that
have caused the individual to take
medicine frequently, see a physi-
cian often and alter life patterns
significantly
Persistent nonorganic disturbance
of one of the following:
a. [ ] Vision, or
b. [ ] Speech, or
c. [ ] Hearing, or
d. [ ] Use of a limb, or
e. [ ] Movement and its control
(e.g., coordination distur-
bances, psychogenic sei-
zures, akinesia, dyskinesia),
or
f. [ ] Sensation (e.g., diminished
or heightened)
Unrealistic interpretation of physi-
cal signs or sensations associated
with the preoccupation or belief
that one has a serious disease or
injury
[ ] Other: Factitious disorder
App. 55
G. 12.08 Personality Disorders — Inflexible and mal-
adaptive personality traits which cause either signifi-
cant impairment in social or occupational
functioning or subjective distress, as evidenced by at
least one of the following:
PRESENT-ABSENT-INSUFFICIENT EVIDENCE
ae og
2 [] [x]
3. [] [x]
4 [] [x]
% [] [x]
‘643
7, [x] []
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
Seclusiveness or autistic thinking
Pathologically inappropriate sus-
piciousness or hostility
Oddities of thought, perception,
speech and behavior
Persistent disturbances of mood or
affect
Pathological dependence, pas-
Sivity, or aggressivity
Intense and unstable interpersonal
relationships and impulsive and
damaging behavior
Other: Dependent personality dis-
order
IV. RATING OF IMPAIRMENT SEVERITY
A. “B” Criteria of the Listings
The following functional limitations (which apply to
paragraph B of listings 12.02-12.04 and 12.06-12.08 and
paragraph D of 12.05) exist as a result of the individual’s
mental disorder(s).
NOTE: Items 3 and 4 below are more than measures of
frequency. Duration and effects of the deficien-
cies (item 3) or episodes (item 4) are discussed in
the decision.
App. 56
Listing(s) under which the items below are being rated:
12.07, 12.08
FUNCTIONAL LIMITATION AND
DEGREE OF LIMITATION
1. Restrictions of Activities of Daily Living:
None[ ] Slight[x] Moderate[ ] Marked*[ ] Extreme[ ]
Insuff Evid[ ]
2. Difficulties in Maintaining Social Functioning:
None[ ] Slight[x] Moderate[ ] Marked*[ ] Extreme[ ]
Insuff Evid[ ]
3. Deficiencies of Concentration, Persistence or Pace
Resulting in Failure to Complete Tasks in a Timely
Manner (in work settings or elsewhere):
Never[ ] Seldom[x] Often{ ] Frequent*[{ ] Constant[ ]
Insuff Evid[ ]
4. Episodes of Deterioration or Decompensation in
Work or Work-Like Settings Which Cause the Individ-
ual to Withdraw from that Situation or to Experience
Exacerbation of Signs and Symptoms (which may
Include Deterioration of Adaptive Behaviors):
Never[x] Once/Twice[ ] Repeated*(3+)[ ] Continual[ ]
Insuff Evid[ }
*Degree of limitation that satisfies the Listings: Extreme,
Constant and Continual also satisfy that requirement.
App. 57
B. Summary of Functional Limitation Rating for ”B”
Criteria
NO. OF FUNCTIONAL LIMITATIONS MANIFESTED
AT THE LISTING LEVEL: [0] (The number must be at
least 2 to satisfy the requirements of paragraph B in
Listings 12.02, 12.03, 12.04 and 12.06 and paragraph D
in 12.05; and at least 3 to satisfy the requirements in
paragraph B in Listings 12.07 and 12.08.)
App. 58
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHIAD SAELEE, ) No. 94-16664
Plaintiff-Appellant, : D.C. No.
a CV-93-5220
; OWW (DLB)
SHIRLEY S. CHATER, Secretary
of Health and Human Services, ‘ ORDER
i (Filed
Defendant-Appellee. Sep. 6, 1996)
Before: WALLACE and THOMPSON, Circuit Judges,
and SEDWICK, District Judge.*
The panel, as constituted above, has unanimously
voted to deny the petition for rehearing. Judge Thompson
voted to reject the suggestion for rehearing en banc and
Judges Wallace and Sedwick so recornmend.
The suggestion for en banc rehearing has been circu-
lated to the full court, and no judge of the court has
requested a vote on the suggestion for rehearing en banc.
Fed. R. App. P. 35(b).
The petition for rehearing is DENIED and the sugges-
tion for a rehearing en banc is REJECTED.
* Hon. John W. Sedwick, United States District Judge for
the District of Alaska, sitting by designation.
App. 59
EVIDENCE
§ 416.912 Evidence of your impairment.
(a) General. In general, you have to prove to us that
you are blind or disabled. Therefore, you must bring to
our attention everything that shows that you are blind or
disabled. This means that you must furnish medical and
other evidence that we can use to reach conclusions about
your medical impairment(s) and, if material to the deter-
mination of whether you are blind or disabled, its effect
on your ability to work on a sustained basis. We will
consider only impairment(s) you say you have or about
which we receive evidence.
(b) What we mean by “evidence.” Evidence is any-
thing you or anyone else submits to us or that we obtain
that relates to your claim. This includes, but is not limited
to:
(1) Objective medical evidence, that is, medical
signs and laboratory findings as defined in § 416.928 (b)
and (c); ;
(2) Other evidence from medical sources, such as
medical history, opinions, and statements about treatment
you have received;
(3) Statements you or others make about your
impairment(s), your restrictions, your daily activities,
your efforts to work, or any other relevant statements
you make to medical sources during the course of exam-
ination or treatment, or to us during interviews, on appli-
cations, in letters, and in testimony in our administrative
proceedings;
App. 60
(4) Information from other sources, as described in
§ 416.913(e);
(5) Decisions by any governmental or nongovern-
mental agency about whether you are disabled or blind;
and
(6) At the administrative law judge and Appeals
Council levels, certain findings, other than the ultimate
determination about whether you are disabled, made by
State agency medical or psychological consultants and
other program physicians or psychologists, and opinions
expressed by medical advisors based on their review of
the evidence in your case record. See § 416.927(f) (2) and
(3).
(c) Your responsibility. You must provide medical
evidence showing that you have an impairment(s) and
how severe it is during the time you say that you are
disabled. If we ask you, you must also provide evidence
about:
(1) Your age;
(2) Your education and training;
(3) Your work experience;
(4) Your daily activities both before and after the
date you say that you became disabled;
(5) Your efforts to work; and
(6) Any other factors showing how your impair-
ment(s) affects your ability to work. In §§ 416.960 through
416.969, we discuss in more detail the evidence we need
when we consider vocational factors.
App. 61
(d) Our responsibility. Before we make a determina-
tion that you are not disabled, we will develop your
complete medical history for at least the 12 months pre-
ceding the month in which you file your application
unless there is a reason to believe that development of an
earlier period is necessary or unless you say that your
disability began less than 12 months before you filed your
application. We will make every reasonable effort to help
you get medical reports from your own medical sources
when you give us permission to request the reports.
(1) “Every reasonable effort” means that we will
make an initial request for evidence from your medical
source and, at any time between 10 and 20 calendar days
after the initial request, if the evidence has not been
received, we will make one followup request to obtain the
medical evidence necessary to make a determination. The
medical source will have a minimum of 10 calendar days
from the date of our followup request to reply, unless our
experience with that source indicates that a longer period
is advisable in a particular case.
(2) By “complete medical history,” we mean the
records of your medical source(s) covering at least the 12
months preceding the month in which you file your
application. If you say that your disability began less
than 12 months before you filed your application, we will
develop your complete medical history beginning with
the month you say your disability began unless we have
reason to believe that your disability began earlier.
(e) Recontacting medical sources. When the evidence
we receive from your treating physician or psychologist
or other medical source is inadequate for us to determine
App. 62
whether you are disabled, we will need additional infor-
mation to reach a determination or a decision. To obtain
the information, we will take the following actions.
(1) We will first recontact your treating physician or
psychologist or other medical source to determine
whether the additional information we need is readily
available. We will seek additional evidence or clarifica-
tion from your medical source when the report from your
medical source contains a conflict or ambiguity that must
be resolved, the report does not contain all the necessary
information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques.
We may do this by requesting copies of your medical
source’s records, a new report, or a more detailed report
from your medical source, including your treating source,
or by telephoning your medical source. In every instance
where medical evidence is obtained over the telephone,
the telephone report will be sent to the source for review,
signature and return.
(2) We may not seek additional evidence or clari-
fication from a medical source when we know from past
experience that the source either cannot or will not pro-
vide the necessary findings.
(f) Need for consultative examination. If the informa-
tion we need is not readily available from the records of
your medical treatment source, or we are unable to seek
clarification from your medical source, we will ask you to
attend one or more consultative examinations at our
expense. See §§ 416.917 through 416.919t for the rules
governing the consultative examination process. Gener-
ally, we will not request a consultative examination until
App. 63
we have made every reasonable effort to obtain evidence
from your own medical sources. However, in some
instances, such as when a source is known to be unable to
Provide certain tests or procedures or is known to be
nonproductive or uncooperative, we may order a consul-
tative examination while awaiting receipt of medical
source evidence. We will not evaluate this evidence until
we have made every reasonable effort to obtain evidence
from your medical sources.
[56 FR 36963, Aug. 1, 1991]
§ 416.913 Medical evidence of your impairment.
(a) Acceptable sources. We need reports about your
impairments from acceptable medical sources. Acceptable
medical sources are —
(1) Licensed physicians;
(2) Licensed osteopaths;
(3) Licensed or certified psychologists;
(4) Licensed optometrists for the measurement of
visual acuity and visual fields (see paragraph (f) of this
section for the evidence needed for statutory blindness);
and
(5) Persons authorized to send us a copy or sum-
mary of the medical records of a hospital, clinic, san-
atorium, medical institution, or health care facility.
Generally, the copy or summary should be certified as
accurate by the custodian or by any authorized employee
of the Social Security Administration, Veterans’ Adminis-
tration, or State agency. However, we will not return an
App. 64
uncertified copy or summary for certification unless there
is some question about the document.
(6) <A report of an interdisciplinary team that con-
tains the evaluation and signature of an acceptable medi-
cal source is also considered acceptable medical evidence.
(b) Medical reports. Medical reports should include -
(1) Medical history;
(2) Clinical findings (such as the results of physical
or mental status examinations);
(3) Laboratory findings (such as blood pressure,
X-rays);
(4) Diagnosis (statement of disease or injury based
on its signs and symptoms);
(5) Treatment prescribed with response, and prog-
nosis; and
(6) A statement about what you can still do despite
your impairment(s) based on the medical source’s find-
ings on the factors under paragraphs (b)(1) through (b)(5)
of this section (except in statutory blindness claims).
Although we will request a medical source statement
about what you can still do despite your impairment(s),
the lack of the medical source statement will not make the
report incomplete. See § 416.927.
(c) Statements about what you can still do. Statements
about what you can still do (based on the medical
source’s findings on the factors under paragraphs (b)(1)
through (b)(5) of this section) should describe, but are not
limited to, the kinds of physical and mental capabilities
listed below. See §§ 416.927 and 416.945(c).
App. 65
(1) The medical source’s opinion about your ability,
despite your impairment(s), to do work-related activities
such as sitting, standing, walking, lifting, carrying, han-
dling objects, hearing, speaking, and traveling; and
(2) In cases of mental impairment(s), the medical
source’s opinion about your ability to understand, to
carry out and remember instructions, and to respond
appropriately to supervision, coworkers, and work pres-
sures in a work setting.
(3) If you are a child, the medical source’s opinion
about your physical or mental abilities to function inde-
pendently, appropriately, and effectively in an age-appro-
priate manner, as described in § 416.924d.
(d) Completeness. The medical evidence, including
the clinical and laboratory findings, must be complete
and detailed enough to allow us to make a determination
about whether you are disabled or blind. It must allow us
to determine -
(1) The nature and limiting effects of your impair-
ment(s) for any period in question;
(2) The probable duration of your impairment; and
(3) Your residual functional capacity to do work-
related physical and mental activities.
(e) Information from other sources. Information from
other sources may also help us to understand how your
impairment(s) affects your ability to work or, if you are a
child, your ability to function independently, appro-
priately, and effectively in an age-appropriate manner.
Other sources may include, and are not limited to -
App. 66
(1) Public and private social welfare agencies and
social workers;
(2) Observations by people who know you (for
example, spouses, parents and other caregivers, siblings,
other relatives, friends or neighbors, clergy);
(3) Other practitioners (for example, nurse practi-
tioners and physicians’ assistants, naturopaths, and chi-
ropractors);
(4) Therapists (for example, physical, occupational,
or speech and language therapists); and
(5) Educational agencies and personnel (for exam-
ple, school teachers, school psychologists who are not
acceptable medical sources under paragraph (a), school
counselors, preschools, early intervention teams, devel-
opmental centers, and daycare centers).
(f) Evidence we need to establish statutory blindness. If
you are applying for benefits on the basis of statutory
blindness, we will require an examination by a physician
skilled in diseases of the eye or by an optometrist, which-
ever you may select.
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553,
Feb. 11, 1991; 56 FR 36964, Aug. 1, 1991; 58 FR 47577,
Sept. 9, 1993]
App. 67
§ 416.927 Evaluating medical opinions about your
impairment(s) or disability.
(a) General. (1) You can only be found disabled if
you are unable to do any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or
which has lasted or can be expected to last for a contin-
uous period of not less than 12 months. See § 416.905.
Your impairment must result from anatomical, physi-
ological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and labora-
tory diagnostic techniques. See § 416.908.
(2) Evidence that you submit or that we obtain may
contain medical opinions. Medical opinions are state-
ments from physicians and psychologists or other accept-
able medical sources that reflect judgments about the
nature and reflect judgments about the nature and sever-
ity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.
(b) How we consider medical opinions. In deciding
whether you are disabled, we will always consider the
medical opinions in your case record together with the
rest of the relevant evidence we receive.
(c) Making disability determinations. After we review
all of the evidence relevant to your claim, including med-
ical opinions, we make findings about what the evidence
shows.
(1) If all of the evidence we receive, including all
medical opinion(s), is consistent, and there is sufficient
evidence for us to decide whether you are disabled, we
App. 68
will make our determination or decision based on that
evidence.
(2) If any of the evidence in your case record,
including any medical opinion(s), is inconsistent with
other evidence or is internally inconsistent, we will weigh
all of the evidence and see whether we can decide
whether you are disabled based on the evidence we have.
(2) If the evidence is consistent but we do not have
sufficient evidence to decide whether you are disabled,
or, if after weighing the evidence we decide we cannot
reach a conclusion about whether you are disabled, we
will try to obtain additional evidence under the provi-
sions of §§ 416.912 and 416.919 through 416.919h. We will
request additional existing records, recontact your treat-
ing sources or any other examining sources, ask you to
undergo a consultative examination at our expense, or
ask you or others for more information. We will consider
any additional evidence we receive together with the
evidence we already have.
(4) When there are inconsistencies in the evidence
that cannot be resolved, or when despite efforts to obtain
additional evidence the evidence is not complete, we will
make a determination or decision based on the evidence
we have.
(d) How we weigh medical opinions. Regardless of its
source, we will evaluate every medical opinion we
receive. Unless we give a treating source’s opinion con-
trolling weight under paragraph (d)(2) of this section, we
consider all of the following factors in deciding the
weight we give to any medical opinion.
App. 69
(1) Examining relationship. Generally, we give more
weight to the opinion of a source who has examined you
than to the opinion of a source who has not examined
you.
(2) Treatment relationship. Generally, we give more
weight to opinions from your treating sources, since these
sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspec-
tive to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of
individual examinations, such as consultative examina-
tions or brief hospitalizations. If we find that a treating
source’s opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evi-
dence in your case record, we will give it controlling
weight. When we do not give the treating source’s opin-
ion controlling weight, we apply the factors listed below,
as well as the factors in paragraphs (d)(3) through (5) of
this section in determining the weight to give the opin-
ion. We will always give good reasons in our notice of
determination or decision for the weight we give your
treating source’s opinion.
(i) Length of the treatment relationship and the fre-
quency of examination. Generally, the longer a treating
source has treated you and the more times you have been
seen by a treating source, the more weight we will give to
the source’s medical opinion. When the treating source
has seen you a number of times and long enough to have
obtained a longitudinal picture of your impairment, we
App. 70
will give the source’s opinion more weight than we
would give it if it were from a nontreating source.~
(ii) Nature and extent of the treatment relationship.
Generally, the more knowledge a treating source has
about your impairment(s) the more weight we will give
to the source’s medical opinion. We will look at the
treatment the source has provided and at the kinds and
extent of examinations and testing the source has per-
formed or ordered from specialists and independent labo-
ratories. For example, if your ophthalmologist notices
that you have complained of neck pain during your eye
examinations, we will consider his or her opinion with
respect to your neck pain, but we will give it less weight
than that of another physician who has treated you for
the neck pain. When the treating source has reasonable
knowledge of your impairment(s), we will give the
source’s opinion more weight than we would give it if it
were from a nontreating source.
(3) Supportability. The more a medical source pre-
sents relevant evidence to support an opinion, partic-
ularly medical signs and laboratory findings, the more
weight we will give that opinion. The better an explana-
tion a source provides for an opinion, the more weight we
will give that opinion. Furthermore, because nonexamin-
ing sources have no examining or treating relationship
with you, the weight we will give their opinions will
depend on the degree to which they provide supporting
explanations for their opinions. We will evaluate the
degree to which these opinions consider all of the perti-
nent evidence in your claim, including opinions of treat-
ing and other examining sources.
App. 71
(4) Consistency. Generally, the more consistent an
opinion is with the record as a whole, the more weight we
will give to that opinion.
(5) Specialization. We generally give more weight to
the opinion of a specialist about medical issues related to
his or her area of specialty than to the opinion of a source
who is not a specialist.
(6) Other factors. When we consider how much
weight to give to a medical opinion, we will also consider
any factors you or others bring to our attention, or of
which we are aware, which tend to support or contradict
the opinion.
(e) Medical source Opinions on issues reserved to the
Secretary.
(1) Opinions that you are disabled. We are responsi-
ble for making the determination or decision about
whether you meet the statutory definition of disability. In
so doing, we review all of the medical findings and other
evidence that support a medical source’s statement that
you are disabled. A statement by a medical source that
you are “disabled” or “unable to work” does not mean
that we will determine that you are disabled.
(2) Other opinions on issues reserved to the Secre-
tary. We use medical sources, including your treating
source, to provide evidence, including opinions, on the
nature and severity of your impairment(s). Although we
consider opinions from treating and examining sources
on issues such as whether your impairment(s) meets or
equals the requirements of any impairment(s) in the List-
ing of Impairments in Appendix 1 to subpart P of part
App. 72
404 of this chapter, your residual functional capacity (see
§§ 416.945 and 416.946), or the application of vocational
factors, the final responsibility for deciding these issues is
reserved to the Secretary. We will not give any special
significance to the source of the opinion on these issues.
(f) Opinions of nonexamining medical and psychological
consultants and other nonexamining physicians and psycholo-
gists. We consider all evidence from nonexamining physi-
cians and psychologists to be opinion evidence. When we
consider the opinions of nonexamining sources on the
nature and severity of your impairments, we apply the
rules set forth in paragraphs (a) through (e) of this sec-
tion. In addition, the following rules apply to State
agency medical and psychological consultants, and to
medical advisors we consult in connection with adminis-
trative law judge hearings and Appeals Council review.
(1) At the initial and reconsideration steps in the
administrative review process, except in disability hear-
ings, State agency medical and psychological consultants
are members of the teams that make the determinations
of disability. A State agency medical or psychological
consultant will consider the evidence in your case record
and make findings of fact about the medical issues,
including, but not limited to, the existence and severity of
your impairment(s), the existence and severity of your
symptoms, whether your impairment(s) meets or equals
the requirements for any impairment listed in Appendix 1
to subpart P of part 404 of this chapter, and your residual
functional capacity. These administrative findings of fact
are based on the evidence in your case record but are not
themselves evidence at these steps.
App. 73
(2) Administrative law judges are responsible for
reviewing the evidence and making findings of fact and
conclusions of law, Administrative law judges are not
bound by any findings made by State agency medical or
psychological consultants. However, these findings are
considered at the hearing level. See § 416.912(b)(6). When
administrative law judges consider these findings, they
will evaluate them using the rules set forth in paragraphs
(a) through (e) of this section. Also, administrative law
judges may ask for and consider the opinions of medical
advisors on the nature and severity of your impair-
ment(s) and whether your impairment(s) equals the
requirements of any listed impairment in appendix 1 to
subpart P of part 404 of this chapter.
(3) When the Appeals Council makes a decision, it
will follow the same rules for considering opinion evi-
dence as administrative law judges follow.
[56 FR 36968, Aug. 1, 1991]
§ 416.928 Symptoms, signs, and laboratory findings.
Medical findings consist of symptoms, signs, and
laboratory findings:
(a) Symptoms are your own description of your
physical or mental impairment. If you are a child under
age 18 and are unable to adequately describe your symp-
tom(s), we will accept as a statement of this symptom(s)
the description given by the person who is most familiar
with you, such as a parent, other relative, or guardian.
Your statements (or those of another person) alone, how-
ever, are not enough to establish that there is a physical
or mental impairment.
App. 74
(b) Signs are anatomical, physiological, or psycho-
logical abnormalities which can be observed, apart from
your statements (symptoms). Signs must be shown by
medically acceptable clinical diagnostic techniques. Psy-
chiatric signs are medically demonstrable phenomena
which indicate specific abnormalities of behavior, affect,
thought, memory, orientation and contact with reality.
They must also be shown by observable facts that can be
medically described and evaluated.
(c) Laboratory findings are anatomical, physiological,
or psychological phenomena which can be shown by the
use of a medically acceptable laboratory diagnostic tech-
niques. Some of these diagnostic techniques include
chemical tests, electrophysiological studies (electrocar-
diogram, electroencephalogram, etc.), roentgenological
studies (X-rays), and psychological tests.
[45 FR 55621, Aug. 20, 1980, as amended at 58 FR 47586,
Sept. 9, 1993]
App. 75
ROBERT ISHIKAWA
ATTORNEY AT LAW
2300 TULARE, SUITE 350
FRESNO, CALIFORNIA 93721
(209) 445-0630
August 1, 1990
John C. Aleman, M.D.
Medical Director
727 W. Childs Ave.
P.O. Box 858
Merced, CA 95341
RE: Chiad Saelee
SSN: 566-91-7485
DOB: 06-14-50
Dear Dr. Aleman:
I represent Ms. Chiad Saelee in her claim for Supplemen-
tal Security Income Disability benefits. enclosed [sic]
please find an authorization for the release of her medical
records.
She has requested a hearing and a hearing will be held in
the near future. At that hearing the following issues will
be litigated:
1. Whether Ms. Saelee has a severe impairment which
would limit her ability to engage in any type of work.
2. Whether her impairments will last or have lasted
more than 12 months.
3. Whether Ms. Saelee can perform sedentary work as
defined by the Social Security Administration. I have
enclosed the definition of this term for your review.
App. 76
Please substantiate your opinion with any clinical or lab-
oratory evidence available to you. As a treating physician
the Social Security Adimnistration [sic] places great
weight on your opinion and therefore your opinion will
be very helpful to Ms. Saelee’s case.
Very truly yours,
ROBERT ISHIKAWA
RI/dk
Encl.
[LOGO]
MERCED FAMILY HEALTH CENTERS, INC.
Administration « 727 West Childs Ave,
P.O. Box 858 Merced, CA 95341
(209) 383-1848
Childs Avenue Clinic Planada Family
Merced Health Center
383-7441 Planada
382-0253
Family Health Center West Modesto
Nueva Esperanza Medical Clinic
Los Banos Modesto
826-1045 576-2845
Patterson Medical Clinic Dos Palos Health Center
Patterson Dos Palos
892-8441 392-722?
WIC Program
Merced and Mariposa
Counties
383-7454
August 9, 1990
App. 77
Mr. Robert Ishikawa
Attorney at Law
2300 Tulare, Suite 350
Fresno, California 93721
RE: Chiadorn Saelee
DATE OF BIRTH: 06-14-50
SS# 566-91-7485
pfn# 1-26123
Dear Mr. Ishikawa:
I received your request for a medical opinion regarding
Ms. Saelee’s claim for supplemental Social Security Dis-
ability Income benefits. It can be readily seen from her
medical records that Ms. Saelee has multiple medical
problems, many of which are caused by or related to a
post-traumatic stress syndrome, depression,
This text is long and has been trimmed here. Open the source document for the complete record.
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