Anzallo v. Secretary of Health & Human Services, 92-55952

• Decision Date: 02 February 1994
• Docket Number: No. 92-55952,92-55952
• Citation: 19 F.3d 25
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Joseph ANZALLO, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 25

19 F.3d 25

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Joseph ANZALLO, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.

No. 92-55952.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 2, 1994. ^*

Decided Feb. 25, 1994.

Before: BROWNING, FERGUSON, and KLEINFELD, Circuit Judges.

MEMORANDUM ^**

I. Physical Disability

A. Rejection of Subjective Pain Testimony

An ALJ may discredit subjective pain testimony if he finds the claimant 1) is able to perform daily activities "that involve many of the same physical tasks as a particular type of job," Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989), or 2) fails to "seek treatment or follow a prescribed course of treatment" without good reason. Id. The ALJ may also take into account the "[t]ype, dosage, effectiveness, and adverse side-effects of any pain medication" and "[t]reatment, other than medication, for relief of pain." Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.1991) (en banc). The ALJ found 1) Anzallo's daily activities include shopping, light cooking, walking the dog, driving, visiting friends, watching television, and sitting up to six hours per day in a recliner, Fair, 885 F.2d at 604 (ALJ entitled to disbelieve pain testimony where claimant remained capable of caring for personal needs, performing routine household chores, shopping, riding public transportation and driving); 2) the pain is significantly reduced by nonprescription medication, and a "TENS" unit prescribed by his chiropractor, Bunnell, 947 F.2d at 346, and 3) Anzallo's pain is due in part to obesity and he has been "poorly compliant" with doctors' efforts to get him to lose weight, Fair, 885 F.2d at 604 (Unexplained refusal to follow doctors' recommendation to lose weight for relief of back pain relevant to evaluation of pain testimony). The ALJ committed no error in rejecting Anzallo's testimony.

B. Failure to Investigate Mental Causes of Physical Pain

Social Security Ruling (SSR) 88-13 requires investigation of a possible mental impairment when the record contains no medical signs or findings of a physical impairment capable of producing the alleged pain. Here, however, there are specific physical impairments causally related to the alleged pain. The ALJ simply found that despite these diagnoses, the pain was not disabling. There was no obligation under SSR 88-13 to conduct any further investigation into possible causes of the pain.

C. Failure to Consider the Impact of Obesity

The ALJ must consider obesity "as a factor contributing to [the claimant's] disability, Hammock v. Bowen, 879 F.2d 498, 504 (9th Cir.1989), unless he makes a "preliminary finding that the obesity was ... remediable." Dodrill v. Shalala, No. 92-35445, slip op. 14537, 14544 (9th Cir. December 28, 1993). At the same time, "[a] claimant won't be found disabled if [he] refuses to follow prescribed medical treatment without good reason." Id. Although several doctors reported obesity as a significant cause of Anzallo's symptoms, Dr. Parsons, Anzallo's "primary care physician," reported Anzallo has been "poorly compliant" with doctors' weight loss recommendations. Anzallo has offered no explanation for this noncompliance. Under these circumstances, the ALJ was entitled to conclude the weight problem weakens rather than strengthens the disability claim because it is a "reasonably remediable" cause of Anzallo's symptoms. Dodrill, slip op. at 14544. cf. Magallanes, 881 F.2d at 751 (Treating physician's assessment given great weight); compare Dodrill, slip op. at 14544 (Preliminary finding of remediability inadequate where ALJ relied "only on the fact that Dodrill had lost weight in the past."); Hammock, 979 F.2d at 503 (ALJ assumed obesity in general is remediable without examining the medical conditions and personal circumstances relevant to whether claimant could reasonably remedy the obesity.).

Assuming the obesity is not remediable, it still does not cast doubt on the ALJ's finding of no disability. The ALJ justifiably concluded that because Anzallo is able to perform a variety of routine, daily activities and nonprescription medications are effective in alleviating the worst of his symptoms, he is able to perform light work despite his obesity and other physical impairments.

D. Sufficiency of Hypothetical Question

"Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant," unless the ALJ has legitimate reasons for finding those limitations do not exist. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). The ALJ's hypothetical question was proper even though it did not include the testimony of Anzallo's wife that "for years ... off and on," she has had to help him dress in the mornings. Anzallo's wife never testified she had to help him perform the job-related tasks included in the hypothetical, and there was sufficient evidence to support the ALJ's conclusion that Anzallo could perform independently any movements necessary to getting dressed (such as crouching or reaching) that are also included in the hypothetical.

II. Mental Disability

The claimant has the burden of proving he is unable to work because of "anatomical, physiological or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory techniques." Ray v. Bowen, 813 F.2d 914, 915 (9th Cir.1987). To meet this burden, the claimant must present objective medical evidence of a disabling condition. Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985).

Anzallo failed to carry this burden. First, he presented no objective medical evidence that he has dyslexia. He admitted at the hearing that the condition has never been diagnosed and that he "more or less came to [the] conclusion" on his own that he suffers from it. Dr. Vampa,...