881 F.2d 747 (9th Cir. 1989), 88-2593, Magallanes v. Bowen

Docket Nº:88-2593.
Citation:881 F.2d 747
Party Name:Mary M. MAGALLANES, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
Case Date:August 04, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 747

881 F.2d 747 (9th Cir. 1989)

Mary M. MAGALLANES, Plaintiff-Appellant,

v.

Otis R. BOWEN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 88-2593.

United States Court of Appeals, Ninth Circuit

August 4, 1989

Argued and Submitted April 12, 1989.

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[Copyrighted Material Omitted]

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Harvey P. Sackett, San Jose, Cal., for plaintiff-appellant.

Dennis J. Mulshine, Assistant Regional Counsel, San Francisco, Cal., for defendant-appellee.

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

Before CHOY, WALLACE and WIGGINS, Circuit Judges.

WALLACE, Circuit Judge:

Mary Magallanes appeals from the district court's judgment affirming the determination by the Secretary of Health and Human Services (Secretary) of the onset date of her disability. Magallanes argues that the Secretary's decision awarding her disability benefits but rejecting her claim of an earlier onset date was not supported by substantial evidence. She contends that the administrative law judge (ALJ) improperly disregarded the opinion of her treating physicians, improperly relied on a non-treating, non-examining physician's opinion, failed to make sufficient findings to justify discrediting her subjective pain testimony, and improperly relied on unsupported vocational expert testimony. We have jurisdiction over Magallanes's timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

Magallanes was born on August 11, 1941, is married, and has four children.

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Her education consists of the completion of the 11th grade and two weeks of training for grocery checking. She worked as a grocery checker for 15 years and as a bank teller for two months.

Magallanes was injured in an automobile accident on February 24, 1983. Following this accident, she attempted to work from June 6 to July 20, 1983, and one day on January 19, 1984. She has not worked since.

On August 11, 1983, Magallanes underwent anterior cervical fusion surgery for pain in her neck, shoulders, and arms. On September 19, 1985, she underwent a second operation, this time a cervical laminectomy, for neck pain.

On August 2, 1983, Magallanes applied for disability insurance benefits, describing her disabling condition as a "neck injury (disc)." An ALJ and the Appeals Council denied her application, and Magallanes sought judicial review. On November 6, 1985, the district court found that although the ALJ's decision was not supported by substantial evidence, there was insufficient evidence to grant summary judgment for Magallanes. The case was remanded for consideration of new evidence and reconsideration of findings.

On remand, the ALJ found that new evidence proved Magallanes was disabled and had been entitled to disability benefits since September 19, 1985, the date of her second operation. The Appeals Council affirmed. Contending that she was disabled as of February 24, 1983, the date of her accident, Magallanes again sought judicial review. The district court granted summary judgment in favor of the Secretary, thus affirming the Secretary's determination of the onset date of Magallanes's disability. Magallanes appealed.

II

The Secretary's decision to deny benefits " 'will be disturbed only if it is not supported by substantial evidence or it is based on legal error.' " Brawner v. Secretary of Health & Human Services, 839 F.2d 432, 433 (9th Cir.1987), quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986); see 42 U.S.C. Sec. 405(g). "The same standard applies where the ALJ has awarded benefits and the claimant seeks additional benefits...." Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir.1989) (Davis ). We review the district court's summary judgment independently. Gamer v. Secretary of Health & Human Services, 815 F.2d 1275, 1278 (9th Cir.1987). "Substantial evidence means 'more than a mere scintilla' but 'less than a preponderance.' It means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Davis, 868 F.2d at 326 (citations omitted). To determine whether substantial evidence supports the ALJ's decision, we "review the administrative record as a whole, weighing both the evidence that supports and [that which] detracts from the ALJ's conclusion." Id., citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986) (Martinez ). The ALJ is responsible for determining credibility and resolving conflicts in medical testimony. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984) (Allen ). The ALJ is likewise responsible for resolving ambiguities. See Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir.1984) (Vincent ); see also Thorne v. Schweiker, 694 F.2d 170, 172 (8th Cir.1982) ("It is for the ALJ to resolve ... ambiguities in the evidence."); Weber v. Harris, 640 F.2d 176,178 (8th Cir.1981) (same). We must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.1984) (Gallant ); Allen, 749 F.2d at 579. The question before us is whether the onset date actually chosen is supported by substantial evidence, not whether another date could reasonably have been chosen. See Swanson v. Secretary of Health & Human Services, 763 F.2d 1061, 1065 (9th Cir.1985). The burden of proof rests upon the claimant. Sanchez v. Secretary of Health & Human Services, 812 F.2d 509, 511 (9th Cir.1987).

III

Magallanes raises several arguments to challenge the ALJ's determination that the

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onset date of her disability was September 19, 1985. Her primary contention is that the ALJ failed to give sufficient reasons to justify disregarding the medical testimony of two treating physicians, Dr. Pont and Dr. Fox, that she was disabled as of 1983. She contends that the results of a new test performed in June 1985 demonstrate the absence of substantial evidence to support the ALJ's decision and that the ALJ improperly relied on the opinion of a non-treating, non-examining physician who testified at the ALJ's request. She also contends that the ALJ made inadequate findings to justify rejecting her subjective pain testimony, that the ALJ improperly relied on her ability to perform housework in reaching his decision, and that the ALJ's decision improperly relied on incomplete and improper hypothetical questions posed to a vocational expert.

A.

Magallanes points to the opinions of two treating physicians, Drs. Pont and Fox, that she has been disabled since 1983. She suggests that the ALJ improperly disregarded their testimony.

We begin with a review of the law governing the opinion of treating physicians in disability cases. We afford greater weight to a treating physician's opinion because "he is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987) (Sprague ). The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n. 7 (9th Cir.1989) (Rodriguez ). The ALJ may disregard the treating physician's opinion whether or not that opinion is contradicted. See id.; Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986) (Cotton ). For example, the ALJ need not accept a treating physician's opinion which is "brief and conclusionary in form with little in the way of clinical findings to support...

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