20 CFR 404.1560-404.1569

SSR 82-36c

Simonsen v. Secy., HHS, USDC, S.D. CALIF., Civ. No. 79-927-T (1/14/81)

The plaintiff, who had back surgery and complained or numbness in his leg, appealed the denial of his application for Disability Insurance Benefits. The Social Security Administration (SSA) had determined that the plaintiff was incapable of performing his former job as a painter, but that he still had the ability to do light work. In making this determination, SSA did not specify exactly what kind of light work the plaintiff could perform. The plaintiff alleged that he had been hospitalized and had undergone further surgery since the administrative hearing, but he failed to submit corroborating evidence in support of this contention. Since the plaintiff's impairment prevented him from performing his former job, the court found in its review that the regulations on vocational considerations permitted SSA to consider the plaintiff's age, education, and other factors in determining whether he could perform other work. Held, the plaintiff's unsubstantiated allegation regarding the existence of relevant evidence pertaining to his medical treatment since the administrative hearing was insufficient to support a remand order. Further held, because the new vocational regulations take administrative notice of unskilled jobs in the national economy, SSA was not required to point out a particular job that the plaintiff could perform. Further held, the medical evidence of record supported SSA's determination that the plaintiff was not disabled.

TURRENTINE, District Judge:

Claimant seeks judicial review of the denial of his claim for disability insurance benefits by the Secretary of Health and Human Services. See 42 U.S.C. § 405(g). The Secretary has moved for summary judgment. The Magistrate has made a recommendation that the case be remanded for the taking of further evidence, to which the Secretary has objected. Local Rule 506. The limited role of a district court under 42 U.S.C. § 405(g) is to determine whether the Secretary's findings are supported by substantial evidence. Chavies v. Finch, 443 F.2d 356, 357 (9th Cir. 1971).

The Administrative Law Judge (ALJ) found that claimant was no longer capable of performing his former work as a painter, but that he still had the ability to do work of a light nature. Claimant has had back surgery and complains of numbness in his leg.

Apparently remand has been suggested to take evidence on further surgery and a hospital stay which occurred after the administrative hearing. But claimant has failed to tender any new evidence to the Court. The Secretary's Appeals Council, in affirming the ALJ's decision, invited claimant to submit updated evidence in a letter dated June 29, 1979, but at no time has he submitted any additional evidence which would call for remand. See Perez v. Mathews, 411 F.Supp. 1276, 1279-80 (E.D. Cal. 1976). His unsubstantiated assertion that there is additional relevant evidence is insufficient to support a remand order. Hall v. Secretary of HEW, 602 F.2d 1372, 1377 (9th Cir. 1979); Hutchinson v. Weinberger, 399 F.Supp. 426, 428 (E.D. Mich. 1975). In addition, the failure to present the new evidence prevents the Court from determining whether there is a reasonable chance the Secretary would reach a different conclusion based on this evidence. See Lindberg v. Califano, 469 F.Supp. 920, 921 (N.D. Cal 1979) (Williams, J.).

As two whether substantial evidence supports the Secretary's decision, the record contains medical evidence which indicates claimant is not completely disabled. While it is true that there is evidence which could support a contrary conclusion, it is up to the Secretary to resolve conflicts in the evidence, and the Court should not substitute its own judgement. Jacobs v. Finch, 421 F.2d 843 (9th Cir. 1970).

There is a question whether the Secretary erred in not specifying exactly what kind of light work plaintiff is capable of performing. See Hall, 602 F.2d at 1377. The reason no job was specified is that new regulations basically eliminate the need for a vocational expert to testify. Instead, the regulations call for examination of age, education, and other factors. If the claimant's characteristics meet those set out in the regulations, then he is conclusively either disabled or not disabled, depending on which regulation is being used. Thus, the Secretary committed no error in not pointing to a particular job which plaintiff is capable of performing. See Boyce v. Harris, 492 F.Supp. 751, 752 (D. S.C. 1980); Crowe v. Harris, 489 F.Supp. 683, 689 (E.D. Tenn. 1980).

If claimant's condition has worsened since the Secretary's decision, he is free to file a new disability claim for his present condition. Based on the present record summary judgment should be granted for the Secretary.


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