Gallant v. Heckler

• Decision Date: 06 December 1984
• Docket Number: No. 84-1689,84-1689
• Citation: 753 F.2d 1450
• Parties: , Unempl.Ins.Rep. CCH 15,827 Henry GALLANT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1450

753 F.2d 1450

8 Soc.Sec.Rep.Ser. 277, Unempl.Ins.Rep. CCH 15,827

Henry GALLANT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 84-1689.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 5, 1984.

Decided Dec. 6, 1984.

Gove L. Allen, Meza, Ariz., for plaintiff-appellant.

Gary L. Floerchinger, Asst. Regional Atty., San Franscisco, Cal., for defendant-appellee.

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

Before FERGUSON and NELSON, Circuit Judges, and JAMESON, ^* District Judge.

FERGUSON, Circuit Judge.

The Secretary of Health and Human Services, concluding that Harry Gallant was not disabled within the meaning of the Social Security Act, denied his claim for Social Security disability benefits. 42 U.S.C. Sec. 423. The district court affirmed the Secretary's decision. Gallant appeals to this court and we reverse.

FACTS

Harry Gallant was born in 1934, and has completed nine years of formal schooling. He worked for 25 years as an operating engineer, operating heavy equipment and as a truck driver hauling heavy equipment. Claimant sustained his injury on October 25, 1978, as a result of falling four to five feet from a piece of machinery while at work. Subsequently, a myelogram was performed and in November, 1978, he underwent surgery for a herniated disc and was off work for approximately five months. Claimant attempted to continue his former employment, but after three and a half weeks he was forced to terminate because of his back problems.

Thereafter, claimant was treated by Drs. Bloemendaal and Syrenne and was evaluated at the pain clinic at Harborview Medical Center, Seattle, Washington in September and October, 1980. Tests revealed claimant had a posterior disc protrusion and on October 23, 1980, he underwent surgery for laminectomy, foraminectomy and fusion.

Claimant thereafter moved to Arizona and was treated by Drs. Lewis and Shetter and was hospitalized at the pain clinic at St. Joseph's Hospital from February 6, 1982 to March 5, 1982, where he was seen by Drs. Thomas, Ginsberg and Collier. Until the hearing before the administrative law judge (ALJ) Gallant continued under the treatment of Dr. Ginsburg, Dr. Shetter and Dr. Thomas. Claimant has not worked since January 1980.

Claimant filed for disability insurance benefits on June 11, 1981, claiming disability commencing October 25, 1978. His application was denied both initially and on reconsideration. Gallant requested a hearing and on June 4, 1982 he appeared before the ALJ with his counsel.

Based on the evidence submitted at the hearing, the ALJ found claimant suffers from the following medically determinable impairments: status post back surgery, November 1978 and October 1980; chronic low back pain syndrome; and mild depressive neurosis. However, the ALJ found that claimant's impairments, while at a level of severity to prevent him from engaging in his past medium to heavy work, were not of such a level to prevent him from engaging in light and sedentary forms of substantial gainful activity. Therefore, the ALJ denied claimant's disability claim.

Gallant brought an action in the district court for judicial review of this decision pursuant to 42 U.S.C. Sec. 405(g). On cross motions for summary judgment, the district court denied Gallant's motion for summary judgment and granted that of the Secretary. This appeal followed.

STANDARD OF REVIEW

On judicial review, the Secretary's determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence, 42 U.S.C. Sec. 405(g), and the Secretary applied the proper legal standards. Hall v. Secretary of HEW, 602 F.2d 1372, 1374-75 (9th Cir.1979). Substantial evidence means more than a mere scintilla of evidence. " 'It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " (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, 216, 83 L.Ed. 126 (1938)).

DISCUSSION

In order to qualify for Social Security disability benefits a claimant must establish that a medically determinable physical or mental impairment prevents him from engaging in substantial gainful activity. 42 U.S.C. Sec. 423(d)(1)(A). The impairment must result from abnormalities which are demonstrable by medically acceptable clinical or laboratory diagnostic techniques, 42 U.S.C. Sec. 423(d)(3), and must be expected to result in death or last for a continuous period of at least 12 months. 42 U.S.C. Sec. 423(d)(1)(A).

The claimant has the burden of proving disability within the meaning of the Social Security Act. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir.1984). "However, after a claimant establishes a prima facie case of disability by showing his inability to perform former work, the burden shifts to the Secretary to prove that the claimant can engage in other types of substantial gainful work that exists in the national economy." Id.

Conceding the evidence supported Gallant's claim that he was unable to perform his former work, the ALJ found, however, that Gallant could engage in light and sedentary forms of substantial gainful employment.

a. Substantial Evidence

Gallant contends that substantial evidence is lacking to support the ALJ's conclusion that claimant is not subject to any significant impairment that significantly limits his ability to engage in light and sedentary forms of gainful activity.

The inquiry here is whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ. Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427; Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld, Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.1971); and in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence. Beane v. Richardson, 457 F.2d 758 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972).

At the hearing before the ALJ, claimant testified that his major complaints were of constant low back pain and aching in both legs. Claimant testified that he rises daily at approximately 7:30 a.m., retires around midnight, and is in severe pain throughout the day. While the ALJ noted claimant performs household chores including his own cooking, the record reveals claimant testified he did no housework, but cooks a meal for himself and his nephew or sister-in-law and does the dishes.

Claimant testified he could not sit over 10 minutes or stand over half an hour without back pain. He estimated he could lift between 5 to 10 pounds. He takes several walks a day for about 20 to 25 minutes each, walking about a block or block and a half, resting and then returning home and swims about 8 to 10 times a day averaging 5 minutes at a time.

The medical evidence submitted at the hearing reveals that claimant underwent surgery for a herniated disc in 1978 and a laminectomy and foraminectomy in 1980; and that, although claimant has recovered well in terms of reduced motor capabilities, he remains in constant low back pain and has been limited both in flexion and extension. This constant pain has prompted physicians to recommend that claimant wear a lower back brace as well as a lumbar flexion jacket. Medical reports indicate pseudoarthrosis is present, requiring claimant to undergo an exploration and repair of the lumbosacral pseudoarthrosis.

Thus the record indicates, and the Secretary acknowledges, that the claimant has shown that his impairments prevent him from continuing in his former employment. The fact of the claimant's physical impairments, at least as they relate to his back condition, are not in dispute. It is rather the severity of the impairments and the extent to which they limit his ability to engage in other employment that are in question.

After reviewing the numerous medical records indicating claimant's significant continuing physical impairments and consistent complaints of chronic pain, the ALJ found the claimant's medically determinable impairments do not meet or equal the severity of the "Listing of Impairments" for presumed disability found in Appendix 1 to Subpart P of the Code of Federal Regulations. 20 C.F.R. pt. 404, subpart P, app. 1. The ALJ then concluded that the functional limitations imposed by claimant's exertional impairments restricted his ability to engage in sustained activity on a regular basis and deprived claimant of his ability to engage in medium and heavy work, but that claimant retained the ability to engage in light and sedentary work on a regular basis.

Although the ALJ did not indicate precisely what medical evidence required this decision, he referred to the reports of two doctors. Dr. Frankel estimated claimant would be prevented from engaging in his past work for four to six months after his second back surgery; and Dr. Shetter stated that, as of April 2, 1982, "there was no evidence of nerve root compromise or stenosis," and specified that "further surgery was not indicated." The latter report, however, also noted that the evaluation of claimant at St. Joseph's Hospital pain clinic suggested the possibility of a pseudoarthrosis and referred claimant to a Dr. Ginsberg for evaluation. Although the ALJ referred to the report of Dr. Ginsberg dated May 12, 1982, confirming the presence of pseudoarthrosis and indicating the possibility of future surgery, the ALJ found that "even with the possibility of future surgery, there are no objective findings of record which support a conclusion that claimant is precluded from engaging in light exertional activity." The ALJ concluded that "while no doubt claimant does...