Orteza v. Shalala, 93-15797

Citation50 F.3d 748
Decision Date13 December 1994
Docket NumberNo. 93-15797,93-15797
Parties, Unempl.Ins.Rep. (CCH) P 14504B Leonardo S. ORTEZA, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mark H. Lipton, Lipton, Warnlof & Lipton, Walnut Creek, CA, for plaintiff-appellant.

Dennis J. Mulshine, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: WALLACE, Chief Judge, PREGERSON and BEEZER, Circuit Judges.

ORDER

The memorandum disposition filed December 20, 1994, is redesignated as a per curiam opinion.

OPINION

PER CURIAM:

Orteza appeals from the district court's summary judgment affirming the decision of the Secretary of Health and Human Services (Secretary) denying Orteza's application for disability insurance benefits. The district court had jurisdiction pursuant to 42 U.S.C. Sec. 405(g). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

The district court's summary judgment is reviewed de novo. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.1992). We must affirm if we determine that substantial evidence supports the findings of the administrative law judge (ALJ) and that the ALJ applied the correct legal standards. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989) (Magallanes ). Substantial evidence is more than a mere scintilla but less than a preponderance--it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion. Id. To determine whether substantial evidence exists we look at the record as a whole, considering both evidence that supports and undermines the ALJ's findings. Id. However, if evidence is susceptible of more than one rational interpretation, the decision of the ALJ must be upheld. Id.

I

Orteza's first argument is that the ALJ erred by failing to make specific findings supporting his determination that Orteza's complaints of excess pain and fatigue were not credible pursuant to Social Security Ruling 88-13. Once a claimant produces medical evidence of an underlying impairment which is reasonably likely to be the cause of some pain, the ALJ "may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir.1991) (en banc) (Bunnell ). Although an ALJ "cannot be required to believe every allegation of disabling pain," Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989) (Fair ), the ALJ cannot reject testimony of pain without making findings sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Bunnell, 947 F.2d at 345-46. Factors that the adjudicator may consider when making such credibility determinations include the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Id. at 346.

The ALJ made specific findings to support his determination that Orteza's complaints of pain and fatigue were exaggerated and that his condition did not prevent him from performing light work. The ALJ first pointed out that the treating physician, Dr. Mason, was "quite emphatic in his report about the lack of objective evidence to support claimant's complaints of pain and weakness." The ALJ stated that Orteza's initial application indicated that he performed various household chores such as cooking, doing the dishes, going to the store, visiting relatives, and driving. The ALJ also pointed to the fact that Orteza suffers no side effects from the prescription drugs he takes, and that Orteza has not required prescription pain medication.

The ALJ's statement of specific reasons for discrediting Orteza's complaints of pain and fatigue is sufficient. An ALJ is clearly allowed to consider the ability to perform household chores, the lack of side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Bunnell, 947 F.2d at 346; Fair, 885 F.2d at 603.

II

In his report, Dr. Mason stated that Orteza could not return to his former job as a hospital file clerk because of the heavy bending and lifting, but that he could adapt to a "sedentary type job." Orteza argues that Dr. Mason meant that he could only perform "sedentary work" as defined by 20 C.F.R. Sec. 404.1567(a) (1994). The ALJ concluded, however, that Dr. Mason did not use the term "sedentary type job" to mean "sedentary work" as technically defined by section 404.1567(a). The distinction is procedurally significant because if Dr. Mason stated that Orteza could only perform "sedentary work" as defined by section 404.1567(a), the ALJ would be required to provide clear and convincing reasons for discrediting Dr. Mason's report. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991) (ALJ must provide clear and convincing reasons for disregarding the uncontradicted opinion of a treating physician). If, on the other hand, Dr. Mason did not state that Orteza could only perform "sedentary work" as defined by section 404.1567(a), the ALJ would not be discrediting Dr. Mason's testimony, but merely interpreting it. Magallanes, 881 F.2d at 750 ("The ALJ is responsible for determining credibility and resolving conflicts in medical testimony ... [and] for resolving ambiguities.").

We agree with the ALJ and the district court that Dr. Mason did not use the term "sedentary type job" to mean "sedentary work" as it is defined by section 404.1567. Dr. Mason made no reference to the technical requirements of section 404.1567, and there is no evidence to indicate that Dr. Mason was even aware of section 404.1567's definition of "sedentary work." Indeed, there was no evidence at all before the ALJ to indicate that Dr. Mason...

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