Harold ATKINS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Administration, Defendant-Appellee , 70 F.3d 529 ( 1995 )

70 F.3d 529

49 Soc.Sec.Rep.Ser. 458, 95 Cal. Daily Op. Serv. 8886
Harold ATKINS, Plaintiff-Appellant,
v.
Shirley S. CHATER,* Commissioner of Social
Security Administration, Defendant-Appellee.

No. 94-35020.

United States Court of Appeals,
Ninth Circuit.

Submitted July 14, 1995.**
Filed Aug. 9, 1995.
Amended Order Filed Oct. 23, 1995.
Redesignated for Publication by
Order Filed Nov. 22, 1995.

1

Ralph Wilborn, Ralph Wilborn & Etta L. Wilborn, P.C., Eugene, Oregon, for plaintiff-appellant.

2

Richard H. Wetmore, Assistant Regional Counsel, Social Security Administration, Office of General Counsel, Seattle, Washington, for defendant-appellee.

3

Appeal from the United States District Court for the District of Oregon.

4

Before: HUG and FERGUSON, Circuit Judges, and SCHWARZER,*** District Judge.

5

We affirm the judgment entered by the district court essentially for reasons expressed in the district court's well-written opinion, Atkins v. Shalala, 837 F.Supp. 318 (D.Or.1993). That opinion was rendered prior to our opinion in Johnson v. Shalala, 60 F.3d 1428 (9th Cir.1995). In Johnson, we held that the Dictionary of Occupational Titles, of the U.S. Department of Labor ("DOT") provides classifications that are rebuttable by vocational experts. Id. at 1435-36. To the extent the district court's opinion in this case indicates otherwise, see 837 F.Supp. at 324, that discussion is superceded by Johnson 's holding that the DOT classifications are rebuttable.

6

The district court was correct in concluding that the findings of the administrative law judge ("ALJ") were erroneous because the hypothetical question addressed to the vocational expert did not contain all the physical impairments suffered by the claimant. Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir.1988).

7

On remand, the ALJ's findings should take into account the rebuttable presumption of the DOT classifications and all of the impairments of the claimant.

*

Shirley S. Chater, Commissioner of Social Security, has been substituted for Donna E. Shalala, Secretary of Health and Human Services, in accordance with P.L. 103-296, the Social Security Independence and Program Improvements Act of 1994, and pursuant to Federal Rules of Appellate Procedure 43(c)(1)

**

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 9th Cir.R. 34-4

***

Honorable William W. Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation