Audon Vidal, Jr. v. Patricia R. Harris, Secretary of Health and Human Services

637 F.2d 710, 1981 U.S. App. LEXIS 20720
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 26, 1981
Docket78-1547
StatusPublished
Cited by66 cases

This text of 637 F.2d 710 (Audon Vidal, Jr. v. Patricia R. Harris, Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Audon Vidal, Jr. v. Patricia R. Harris, Secretary of Health and Human Services, 637 F.2d 710, 1981 U.S. App. LEXIS 20720 (9th Cir. 1981).

Opinions

ORRICK, District Judge.

The two major questions raised by appellant, Audon Vidal, Jr., in his appeal from the district court’s judgment granting the motion for summary judgment of the Secretary of Health and Human Services1 (the “Secretary”), denying him disability benefits, and denying his motion for summary judgment are: (1) that the findings of the Secretary that he is not disabled for purposes of receiving benefits is not supported by substantial evidence, and (2) that the case should be remanded for further hearing because he was not represented by counsel and because the administrative law judge did not adequately inform him of his right to an attorney and did not fairly conduct the hearing to protect his interest. We find that the administrative law judge failed to “scrupulously and conscientiously probe into, inquire of and explore for all relevant facts” in accordance with the very heavy burden we imposed upon him in Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978), when the plaintiff is not represented by counsel, and we, accordingly, reverse and remand the case to the court below to conduct further proceedings not inconsistent with this Opinion.

I

On October 22, 1975, Vidal applied for supplemental security income benefits based on disability, alleging that he had been unable to work since September, 1975. He had been working as a farm laborer in the fields, the only type of work he had ever performed. He was slower than most workers and had to find employers who would let him work at his own pace. After September, 1975, he was laid off and could not find any other employer who would hire him, letting him perform at his own pace.

Vidal’s claim of disability is based chiefly upon the results of having contracted polio, which crippled his left leg, making it shorter than his right leg, thus requiring him to use a long leg brace, knee locks and cages, and a 2V2" lift on his shoe. If he stands on his right leg for more than IV2 hours or walks Vi to Vz mile, it collapses. The medical reports related to inspections of the leg brace, which was in need of repair at the time of the hearing before the administrative law judge. The reports did not otherwise relate to his physical condition. In his application for benefits, he also alleged that his left leg swelled after eight hours work, and his right leg buckled and cramped.

Vidal completed ten grades of school in the “slow” track and had a “C” or “D” average. He quit school in the eleventh grade because he did not like it. Although [712]*712he completed ten grades, he indicated that he cannot read well; he could not read an unidentified document in front of him at the hearing, nor does he read newspapers. He had to have someone read him some of the questions on the written drivers’ licensing examination because he could not understand them all. When asked how far he could count, Vidal answered that he could count to 100 but not to 1,000 and could not always determine the right amount of change when grocery shopping. He can only subtract from 100 when using a pencil. Psychometric tests administered to him classified him as borderline mentally retarded, two IQ tests showing scores of 73 and 78. Career training was advised.

A vocational expert, Professor Everett Stude (Ph.D.) of Fresno State University reviewed all the documentary evidence and heard Vidal’s testimony. Stude noted that Vidal had worked as a farm laborer from age 12 to 21, mostly raking leaves and chopping cotton, and that Vidal could no longer perform the job of farm laborer. He testified that there were light or sedentary jobs Vidal could perform in the farm labor area without special training. Stude specifically selected two jobs (both classified as “sedentary” in the Department of Labor’s Dictionary of Occupational Titles). These jobs were “inspector” and “sorter of agricultural produce.” For the job of inspector, Stude testified there were 160 jobs available in the region and named specific companies. For the job of sorter, he estimated approximately 1,000 positions and again named some specific firms. His source of information was vocational surveys and personal observations, within the previous two weeks.

Stude recognized that Vidal is a slow learner and would be foreclosed from many other jobs because of his lack of reading skills, trouble with calculations, and physical problems. He further recognized that a person with average learning ability could learn certain jobs within a period of hours or a day, but that Vidal would take one to three months to learn them. He also testified that Vidal has certain transferable skills not diminished by his impairment, such as manual dexterity, eye-hand coordination, and ability to follow instructions.

Vidal was not represented by counsel at the hearing, although he was told by the administrative law judge that he could have counsel. The administrative law judge found that Vidal could no longer engage in his usual job of field farm laborer. But he also found that Stude, the vocational expert, had specifically identified two sedentary jobs Vidal could perform based on his age, education, work experience, and current impairments; that approximately 1,160 such jobs existed in the Fresno region; and that Vidal had the residual physical capacity to perform sustained sedentary work activity, including the jobs enumerated by Stude, and thus he was not under a disability within the definition of the Social Security Act.

II

A

Under 42 U.S.C. §§ 1383(c)(3) and 405(g), the jurisdiction of the court is limited to the question of whether the findings of the Secretary are supported by substantial evidence. Hall v. Secretary of HEW, 602 F.2d 1372, 1374 (9th Cir. 1979). Applying this test, the court must uphold the Secretary’s determination that appellant is not disabled for the purposes of receiving benefits if the findings are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 1375; Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1977). The court must look at the record as a whole and not merely the evidence tending to support a finding. Cox v. Califano, supra, 587 F.2d at 990; Walker v. Matthews, 546 F.2d 814, 818 (9th Cir. 1976). The statute, 42 U.S.C. § 423(d) (2)(A), makes legally irrelevant any consideration of whether a claimant, would actually be hired if he applied for work. Walker, supra, 546 F.2d at 818. The statutory standard is not employability, but rather capacity (/. e., not whether Vidal could actually find a job but whether health limi[713]*713tations would prevent him from engaging in substantial gainful work). Miranda v. Secretary of HEW,

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637 F.2d 710, 1981 U.S. App. LEXIS 20720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/audon-vidal-jr-v-patricia-r-harris-secretary-of-health-and-human-ca9-1981.