JAMESON, District Judge:
Raul Benitez has appealed from a judgment affirming the decision of the Secretary of Health, Education and Welfare denying appellant's claim for social security disability benefits. Following a hearing, an administrative law judge concluded that appellant was "not entitled to either a period of disability or disability insurance benefits under sections 216(i) and 223(a) respectively, of the Social Security Act, as amended".
Appellant is a United States citizen of Mexican ancestry. He was born on September 28, 1935 in Texas and received a fourth grade education. Although he can read and write Spanish, he is functionally illiterate in English. He can speak and understand some English, but can neither read nor write it.
Prior to the onset of his physical impairment appellant's work consisted primarily of farm labor — picking cotton and fruit, and driving farm equipment. He worked briefly as a gas station attendant and for a car dealer cleaning cars.
Appellant suffered back injuries on April 30, 1971, when he fell off a tractor. His injuries resulted in chronic lumbosacral strain which requires periodic therapeutic treatment. The examining doctors generally were in agreement that his back condition prevented appellant from engaging in any work which would require him to do any bending, stooping, or lifting. In the future he would only be able to do light, sedentary type work.
Findings of Administrative Law Judge
At the administrative hearing a vocational counselor testified that although there were light, sedentary jobs available in the market that would not involve bending, stooping, or lifting, appellant's lack of education and fluency with English would make it difficult for him to obtain those jobs. After considering the hearing testimony and documentary evidence regarding appellant's physical condition and the availability of jobs in the area, the judge found that appellant's "impairment consists of a low back condition which permits only light or sedentary work which does not require repeated stooping or bending"
At the hearing and in his decision the judge expressed concern about appellant's unusual status. In a Special Problem Note
Scope of Review
By statute the "findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). "It is not within our province to judge the credibility of witnesses before the Administrative Law Judge". Walker v. Mathews, 546 F.2d 814, 820 (9 Cir. 1976). In general, our task is limited to reviewing the judge's factual findings to decide whether they are supported by substantial evidence. Id. at 818. However, "[e]ven though the findings be supported by substantial evidence, the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision". Flake v. Gardner, 399 F.2d 532, 540 (9 Cir. 1968).
Provisions of Social Security Act
42 U.S.C. § 423(d)(1)(A) defines "disability" as "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which can be expected to last for a continuous period of not less than 12 months". § 423(d)(2)(A) provides that "an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ."
This court, in Rosin v. Secretary of Health, Education and Welfare, 379 F.2d 189, 195 (9 Cir. 1967), summarized the applicable rules in determining whether a claimant is unable "to engage in any substantial gainful activity":
Cases from other circuits are in accord with these principles. In Brinker v. Weinberger, 522 F.2d 13, 17-18 (8 Cir. 1975), the court recognized that the Social Security Act is remedial and "to be construed liberally", and to "establish that a claimant . . has the ability to engage in any substantial gainful activity . . . it must be shown that the claimant can realistically perform in existing employment". In Ferran v. Flemming, 293 F.2d 568, 571-72 (5 Cir. 1961), the court stated that "to sustain a finding of no disability there must be some
Applicable Regulation under Social Security Act
The Secretary on this appeal, as did the administrative law judge and district court, relies solely on 20 C.F.R. § 404.1502 in support of the contention that appellant failed to establish his entitlement to disability benefits because his physical impairment was not the primary reason for his inability to engage in "any substantial gainful activity". This regulation reads in pertinent part:
The administrative law judge decided that the word "primary" in the second sentence was controlling and precluded appellant from receiving any benefits because his language and educational deficiencies, rather than his physical impairment, were the "primary" reason for his inability to obtain gainful employment. In our opinion, however, this construction of the regulation misconstrues the import of the word "primary" and takes it out of context, ignoring the substance of the succeeding sentence. This sentence begins: "In any such case . . . ." This can only mean that the substance of that sentence qualifies the sentence preceding it. Thus, a claimant's physical impairment must be of such severity "that he is not only unable to do his previous work
The regulation must of course be construed in the light of the statute and relevant
We conclude that the administrative law judge's finding of no disability — which was adopted by the Secretary and affirmed by the district court — was based on an erroneous legal premise and that error fatally flawed the decision. Normally, in such instances the reviewing court should remand the case for further administrative proceedings. See, e. g., Tigner v. Gardner, 356 F.2d 647, 651 (5 Cir. 1966). "However, when the record is . . . fully developed . . and there seems little or no likelihood that additional evidence would be presented at a new hearing, a Court can determine whether substantial evidence would support the Secretary if the appropriate test had been applied." Gardner v. Smith, 368 F.2d 77 at 86.
Appellee argues that the Secretary never reached a consideration of appellant's age, education, and work experience "because it was determined that the physical impairment of the plaintiff was not the primary reason for plaintiff's inability to obtain substantial gainful activity". This statement is not entirely accurate in view of the express finding of the administrative law judge that appellant was not able to perform jobs "within his residual physical capacity because of his restricted literacy and fluency wit the English language". We conclude, however, that the Secretary should have an opportunity to evaluate the facts under correct legal standards and that the cause should be remanded for reconsideration in the light of the principles set forth in this and the cited cases. See, e. g., Ferran v. Flemming, supra, 293 F.2d at 571-72.
The judgment of the district court is vacated, and the case is remanded to that court with instructions to remand to the Secretary for further proceedings consistent with this opinion.