Sprague v. Bowen

• Citation: 812 F.2d 1226
• Decision Date: 18 March 1987
• Docket Number: No. 85-4198,85-4198
• Parties: , Unempl.Ins.Rep. CCH 17,220 Coreen L. SPRAGUE, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1226

812 F.2d 1226

17 Soc.Sec.Rep.Ser. 19, Unempl.Ins.Rep. CCH 17,220

Coreen L. SPRAGUE, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services Defendant-Appellee.

No. 85-4198.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 9, 1986.

Decided March 18, 1987.

Rob Williamson, Seattle, Wash., for plaintiff-appellant.

Ben A. Porter, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before TANG, PREGERSON and ALARCON, Circuit Judges.

TANG, Circuit Judge:

Mrs. Sprague appeals denial of widow's disability benefits contending there was not substantial evidence to support the finding of no disability, that the Secretary did not adequately consider evidence of her mental condition, and that the ALJ erred in failing to explain why he disregarded the opinions of her treating physician. We reverse.

BACKGROUND

Mr. Sprague, a covered wage earner, died in April 1982. On June 1, 1982, Mrs. Sprague applied for widow's disability benefits under the Social Security Act. 42 U.S.C. Sec. 402(e)(1) (1982). The Social Security Administration denied her application first on August 2, 1982 and upon reconsideration on September 20, 1983. After a hearing on March 18, 1983, the ALJ decided on September 20, 1983 that Mrs. Sprague was not disabled within the meaning of the Act. The Appeals Council denied the claim on February 23, 1984; on appeal the U.S. Magistrate recommended that the ALJ's decision be affirmed; the district court adopted that recommendation and upheld the Secretary's denial of benefits on August 19, 1985. Mrs. Sprague timely appealed.

The evidence consists of reports by two examining physicians and by Mrs. Sprague's treating physician of 25 years, as well as testimony at the hearing by Mrs. Sprague, her daughter, and a long-time friend. Mrs. Sprague has suffered from a variety of ailments over the years, including a stroke (CVA), diabetes, obesity, depression, hypertension and degenerative disc disease. The conditions of primary concern to her disability claim are her back problems and her mental state, although her treating physician stressed that in his opinion it is the combination of her numerous problems which render her completely disabled.

One of the examining physicians, Dr. Shibata, stated that Mrs. Sprague had a herniated disc and that she "appears to be most disabled by disc disease and is unable to be gainfully employed due to her low back problems."

The other examining physician, Dr. McCornack, an orthopedic surgeon, discussed her variety of medical problems including degenerative disc disease without signs of herniation, nerve root compression or spinal stenosis. In his opinion Mrs. Sprague could not do any strenuous work but, with retraining, could do a variety of sedentary work activities.

Dr. Gehlen, Mrs. Sprague's family doctor, gave his opinion that Mrs. Sprague's physical back problems coupled with her pain and depression render her completely disabled. In his view, her pain and motion limitations are equal, in terms of functional limitations, to those listed in Listing of Impairments 1.05, ¹ especially when one takes into consideration her depression.

Testimony at the hearing brought out the effect of the various ailments and of her mental state on Mrs. Sprague's daily life. Her daughter reported Mrs. Sprague had attempted suicide; both her daughter and her friend testified to her depression, listlessness, inability to maintain concentration, and the pain caused by walking and standing. Mrs. Sprague testified to the pain in her back and in her arm (from a whiplash injury) and the degree that pain interfered with her efforts to attend typing classes; that it necessitated frequent The ALJ considered the medical history of Mrs. Sprague's back pain and disc disease, and found that she can walk 2 or 3 blocks and up to one mile at a slow pace and that she can sit for up to an hour if she can change position periodically. Thus, although she experiences pain, he found she is not incapacitated by her difficulties in walking, sitting or standing.

breaks to walk around to gain relief from the pain from sitting in one place.

The ALJ addressed specifically the view of her family doctor that Mrs. Sprague is disabled. He noted two apparent discrepancies in the evidence: (1) that Dr. Gehlen gave a diagnosis of arthritis while the orthopedic surgeon gave a diagnosis of degenerative disc disease without evidence of root compression or disc herniations; and (2) that Dr. Gehlen referred to Mrs. Sprague's pain in her arm from her whiplash injury, while Mrs. Sprague discussed her efforts to learn to type and operate a 10-key.

The ALJ concluded from "the record medical evidence" that Mrs. Sprague suffers from degenerative disc disease without nerve root compression or spinal stenosis, as well as diabetes, tension headache, hypertension and poststatus CVA. He determined that none of these impairments meets or equals those listed as defining disability, when viewed in light of "her clinically documented sedentary level of work activity."

The magistrate concluded the evidence was, at best, conflicting as to whether her lower back problems were the same as or equivalent to any listed in the regulations for disorders of the spine. See 20 C.F.R. pt. 404, subpt. P, App. 1 Sec. 1.05. Her treating doctor said her condition is equivalent without specifying a subsection of Sec. 1.05, while Dr. McCornack said, with retraining, she could do sedentary work, thus supporting the contrary view that her condition is not equivalent to a listed disorder. The magistrate recommended that, given the conflict, the ALJ may resolve it and the court must uphold his decision.

The magistrate also found that Mrs. Sprague had presented no psychiatric or other qualified evidence to establish entitlement to disability based on her mental state.

DISCUSSION

A. Legal Standards

It is clear that a widow must satisfy a stricter disability standard than a wage earner. See, e.g., Dorton v. Heckler, 789 F.2d 363, 365 (6th Cir.1986). A widow of an insured wage earner is entitled to benefits under 42 U.S.C. Sec. 402(e) (1982) if she is between 50 and 60 years old and is under a disability which "under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity." 42 U.S.C. Sec. 423(d)(2)(B) (1982) (emphasis added). The pertinent regulations specify that only physical or mental impairments are considered and that the department does not consider age, education or work experience. 20 C.F.R. Sec. 404.1577 (1985). ² Benefits are granted when "specific clinical findings" show that a widow suffers from an impairment listed in Appendix 1 or from one or more unlisted impairments that singly or in combination are "medically equivalent" to a listed impairment. 20 C.F.R. Sec. 404.1578 (1985); Dorton, 789 F.2d at 365.

It is not disputed that Mrs. Sprague is the widow of an insured wage earner and that she is between 50 and 60 years old. The only question in this case is whether Mrs. Sprague's ailments are the equivalent of a listed impairment, thus qualifying her for benefits. We agree with Mrs. Sprague that substantial evidence does not support the ALJ's and Secretary's decision to deny benefits.

The scope of review of disability determinations is limited and we will disturb the Secretary's decision only if it is based on legal error or if the fact findings are not supported by substantial evidence. 42 U.S.C. Sec. 405(g) (1982); Cotton v. Bowen, 799 F.2d 1403, 1406 (9th Cir.1986); Howard v. Heckler, 782 F.2d 1484, 1486-87

                (9th Cir.1986).  Substantial evidence means "such relevant evidence as a reasonable mind would accept as adequate to support a conclusion."    Howard, 799 F.2d at 1487 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971))
                

B. Treating Physician's Opinion

Mrs. Sprague does not contend that she suffers from a listed impairment. While her back disorder involves symptoms close to those listed for vertebrogenic disorders, the clinical findings do not show that she has "[a]ppropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." Appendix 1, Sec. 1.05 C.2. Mrs. Sprague argues, however, that she suffers an impairment equivalent to a listed impairment when the disabling effects of her other pain (in her arm and from tension headaches), her hypertension, and her depression are considered. This is her treating physician's opinion.

All three physicians' underlying medical findings on her physical ailments were similar, although Dr. Shibata thought Mrs. Sprague had a herniated disc, a conclusion not supported by the other two. Both Dr. Gehlen, her treating physician, and Dr. McCornack, an orthopedic surgeon, found she suffered from degenerative disc disease. Their opinions differed only as to her degree of impairment in that Dr. Gehlen said she is totally disabled and Dr. McCornack said she is capable, with retraining, of sedentary work.

This is not a case of contradictory evidence of a physical impairment, but one in which a treating physician's opinion on the ultimate question of the degree of impairment differs from that of an examining physician who made no observation of the claimant's mental state. The ALJ apparently decided that Dr. McCornack's opinion that Mrs. Sprague could do sedentary work with training was more convincing than Dr. Gehlen's opinion that she is totally disabled.

The general rule is that conflicts in the evidence are to be resolved by the Secretary, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982), and that the Secretary's conclusion must be upheld where there is more than one rational interpretation of the evidence. Allen v. Heckler, 749 F.2d 577 (9th Cir.1984). But when the conflict is between the opinions of a...