Wanda GREGORY, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee

844 F.2d 664, 1988 U.S. App. LEXIS 4823, 1988 WL 32544
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 14, 1988
Docket87-3540
StatusPublished
Cited by122 cases

This text of 844 F.2d 664 (Wanda GREGORY, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee) 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.

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Wanda GREGORY, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee, 844 F.2d 664, 1988 U.S. App. LEXIS 4823, 1988 WL 32544 (9th Cir. 1988).

Opinion

GOODWIN, Circuit Judge:

Wanda Gregory appeals from a judgment denying her claim that she was disabled within the meaning of the Social Security Act. The district court upheld the administrative law judge’s decision denying the claim. Gregory argues that the administrative decision was not supported by substantial evidence. She also seeks attorneys’ fees under 42 U.S.C. § 406(b)(1) (1982). We reverse and remand.

Gregory was born on June 25,1921. She has a high-school education. She has worked as a clerk-typist at various times, most recently for the State of Oregon. She was discharged from that job in April 1979 because she worked too slowly. Gregory’s Social Security insured status expired on September 30, 1981.

Gregory has a long history of lower back problems. In August 1981, she underwent pelvic and bladder reconstructive surgery to correct urinary incontinence. She also has significant mental and emotional problems that adversely affect her ability to work.

Under 42 U.S.C. § 405(g) (1982), the Secretary’s findings of fact are conclusive if supported by substantial evidence. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir.1985). “Substantial evidence is ‘ “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” ’ ” Id. at 848 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938))).

Disability is statutorily defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not *666 less than 12 months.” 42 U.S.C.A. § 423(d)(1)(A) (West Supp.1987); see 20 C.F.R. § 404.1505(a) (1987). Under this definition, Gregory must show that as of September 30, 1981 — the date that her insured status expired — she had “a severe impairment, which [made her] unable to do [her] previous work or any other substantial gainful activity which exists in the national economy.” Id.

Gregory claims that she should have been deemed disabled under the medical-vocational grids, which mandate a finding of disability where individuals satisfy certain requirements of residual functional capacity, age, education and work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1987). Under the appropriate provision, Rule 201.06 of the grids, Gregory should be deemed disabled if she is found to be unable to return to her past work. 1

We reject the Secretary’s claim that we should give res judicata effect to a September 24, 1981 agency decision rejecting Gregory’s application for benefits. The doctrine of res judicata should not be applied rigidly in administrative proceedings. See Lyle v. Secretary of Health and Human Servs., 700 F.2d 566, 568 n. 2 (9th Cir.1983). Because Gregory’s 1983 application raised the new issue of psychological impairments, it would be inappropriate to apply res judicata to bar her claim. See Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985) (suggesting that res judicata may be inappropriate where the claimant has presented new facts to demonstrate that a prior determination of nondisability may have been incorrect); Thompson v. Schweiker, 665 F.2d 936, 940-41 (9th Cir.1982) (same). Because Gregory was not represented by counsel when she filed her 1981 claim, the rigid application of res judi-cata would be undesirable. Cf. Thompson, 665 F.2d at 941 (observing that the ALJ has a more exacting duty to probe for relevant facts where a claimant is not represented by counsel). Finally, the AU’s effective decision to reopen the 1981 claim by considering on the merits the issue of Gregory’s disability during the time covered by the 1981 claim precludes agency reliance upon res judicata. See Singer v. Weinberger, 513 F.2d 176, 178 (9th Cir.1975).

In deciding whether the administrative law judge’s decision was supported by substantial evidence, we must “consider the combined effect of all of [Gregory’s] impairments without regard to whether any such impairment, if considered separately, would be of [sufficient medical] severity.” 42 U.S.C.A. § 1382c(a)(3)(G) (West Supp. 1987); see 20 C.F.R. § 404.1523 (1987); Beecher v. Heckler, 756 F.2d 693, 694-95 (9th Cir.1985).

We find that substantial evidence supported the Secretary’s decision that Gregory’s bladder problems and incontinence did not render her disabled under the regulations. Although testimony indicated that Gregory’s bladder leakage had recurred and that she might require an additional operation, she presented no evidence that her incontinence or her need for additional surgery would have made her unable to work “for a continuous period of not less than 12 months.” 42 U.S.C.A § 423(d)(1)(A) (West Supp.1987); 20 C.F.R. § 404.1505(a) (1987).

We also find that substantial evidence supports the Secretary’s finding that Gregory’s lengthy history of lower back problems did not render her disabled. Gregory’s testimony indicated that she retains the physical capacity to do her prior work; she testified that she could lift ten pounds, walk ten blocks, stand for two hours, sit for an hour and a half, and sew *667 and do latch-hook work. Furthermore, substantial evidence indicated that the condition of Gregory’s back had remained constant for a number of years and that her back problems had not prevented her from working over that time. See Goodermote v. Secretary of Health and Human Servs., 690 F.2d 5, 7 (1st Cir.1982).

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844 F.2d 664, 1988 U.S. App. LEXIS 4823, 1988 WL 32544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wanda-gregory-plaintiff-appellant-v-otis-r-bowen-secretary-of-health-ca9-1988.