Bates v. Sullivan

• Decision Date: 23 January 1990
• Docket Number: No. 88-3868,88-3868
• Parties: , Unempl.Ins.Rep. CCH 15218A James L. BATES, Plaintiff-Appellant, v. Louis J. SULLIVAN, M.D., * Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1059

894 F.2d 1059

28 Soc.Sec.Rep.Ser. 416, Unempl.Ins.Rep. CCH 15218A

James L. BATES, Plaintiff-Appellant, v. Louis J. SULLIVAN, M.D., ^* Secretary of Health and Human Services, Defendant-Appellee.

No. 88-3868.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 12, 1989.

Decided Jan. 23, 1990.

Eli Halpern, Halpern & Smith, P.S., Rochester, Wash., for plaintiff-appellant.

Gary J. Thogersen, Asst. Regional Counsel, Dept. of Health and Human Services, Seattle, Wash., for defendant-appellee.

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

Before EUGENE A. WRIGHT, WALLACE and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

James L. Bates appeals the district court's judgment affirming the denial by the Secretary of Health and Human Services of his application for disability benefits. Bates argues that (1) the administrative law judge ("ALJ") failed to make findings sufficient to discredit his subjective pain testimony, (2) the ALJ erred in not giving weight to a state agency determination that he is disabled, (3) the ALJ improperly used the Medical-Vocational Guidelines ("grids") to find him not disabled, and (4) the Appeals Council improperly disregarded the opinion of an examining psychiatrist. We have jurisdiction over Bates' timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

FACTS AND PROCEEDINGS

Bates was born in 1952. He attended school through the tenth grade and later obtained a GED, indicating the equivalent of a full high school education. He has worked as a carpenter's helper, a welder, and for a brief period as a security guard.

Bates has not worked since October 1983 when he quit his job as a welder at a stove factory due to back pain. His back was injured in 1978 in a car accident and reinjured in October 1983 while Bates was picking up a stove at work. Since he left his job at the stove factory Bates has been receiving time-loss benefits from the State of Washington's Department of Labor and Industries for being "temporarily totally disabled."

In addition to his back pain, Bates reports he suffers from other physical and nonphysical limitations. In 1982 he received surgical treatment to his wrists for injuries suffered in a knife attack and in Bates applied for disability insurance benefits in November 1984. He alleged that he became disabled on October 20, 1983 as a result of injuries to his back, head and hands, and that he suffered from chronic back pain, alcohol and drug abuse, and emotional problems. Bates did not contend that his physical problems met or equaled a listing, but rather that the combination of his mental and physical impairments render him disabled. Bates' Social Security earnings record shows that he met the disability insurance status requirements through December 31, 1984.

1984 he fell from a horse and fractured his skull. Bates has abused alcohol and drugs in the past. In recent years he has suffered from emotional problems, including depression and periods of anger, for which he has been treated by a psychologist.

Upon denial of his application, Bates requested a hearing. An administrative hearing was held before an ALJ on October 20, 1986. The ALJ determined that Bates' eligibility for disability benefits was restricted to the period between October 20, 1983, the date Bates said he became unable to work, and December 31, 1984, the last date that Bates met the disability insurance status requirements of the Social Security Act. The ALJ found that Bates was incapable of performing his last work but that he retained the ability to perform the full range of light work. The ALJ also found that Bates' testimony of chronic disabling back pain was not credible and that his nonexertional limitations would cause no significant vocational limitations. Applying the grids the ALJ determined that Bates was not disabled. Bates requested that the Appeals Council review the ALJ's decision and he submitted new evidence consisting of a report detailing the results of a psychological evaluation conducted in March 1987. The Appeals Council considered this report but declined to review the ALJ's decision which therefore became the final decision of the Secretary.

Bates then sought judicial review in the district court. The district court referred the case to a magistrate who issued a report recommending that the case be remanded to the Secretary because the ALJ did not make findings sufficient to discredit Bates' subjective pain testimony. The district court, after reviewing the evidence, rejected this recommendation and issued a judgment affirming the decision of the Secretary denying Bates disability benefits. Bates appeals.

STANDARD OF REVIEW

We review the judgment of the district court de novo. Adams v. Bowen, 872 F.2d 926, 927 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 151, 107 L.Ed.2d 109 (1989). The Secretary's denial of benefits will " 'be disturbed only if it is not supported by substantial evidence or if it is based on legal error.' " Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir.1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986)); see 42 U.S.C. Sec. 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but "less than a preponderance." Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988) (quoting Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). This court must review the record as a whole and consider adverse as well as supporting evidence. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989).

ANALYSIS

A. Bates' Subjective Pain Testimony

We first consider Bates' argument that the ALJ improperly rejected his subjective pain testimony. Bates argues that the ALJ did not make the required specific findings to justify his decision to discredit Bates' testimony of disabling chronic back pain.

The Secretary is not required to believe a claimant's pain testimony, and the Secretary may decide to disregard such testimony entirely whenever the claimant fails to submit objective medical findings that could reasonably be expected to produce the claimed pain. Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985); 20 C.F.R. Sec. 404.1529 (1988); Social Security Ruling 88-13. However, "the Secretary must make specific findings justifying that decision." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.1989) (quoting Green v. Heckler, 803 F.2d 528, 532 (9th Cir.1986)).

At the hearing Bates testified that his chronic back pain renders him incapable of working. He said that as a result of this back pain he is unable to pick up more than ten pounds or carry anything weighing five pounds. He also said that he is able to sit comfortably for only about fifteen minutes at a time, that he cannot walk long distances without increasing his back pain, and that he is unable to drive without stopping frequently to walk around. The ALJ rejected this testimony as not credible.

Relevant portions of the ALJ's decision read as follows:

... [R]ecent records from the claimant's treating physician as well as an earlier assessment from his chiropractor, indicate that [Bates] retains the functional capacity to perform a light level of work-related activities; that is, he is able to lift and carry a maximum of 10 pounds frequently, or up to 20 pounds occasionally. The claimant's testimony that he is only able to lift and carry a maximum of 5 pounds is not supported by the medical evidence, and it is not accepted by the Administrative Law Judge....

FINDINGS

...

The claimant's testimony concerning his exertional limitations was not supported by the reports of his treating physician, and was not fully credible.

The ALJ made a specific finding discrediting Bates' subjective pain testimony. ¹ The finding is based on reports from Bates' own doctors that Bates is able to perform light-level work activities. The ALJ in his decision referred to these reports in reaching the conclusion that Bates' subjective pain testimony was not credible. In a vocational retraining evaluation it was noted that Dr. Leone, Bates' treating chiropractor, reported that he considered Bates able to engage in sedentary to light work activities, with the ability to stand and walk up to four hours during an eight-hour work day, and lift and carry ten to twenty pounds occasionally. Bates' treating physician, Dr. Nacht, an orthopedic specialist, in a report to a rehabilitation agency stated that he considered Bates able to lift up to twenty pounds, stand for one hour, and walk for one to two hours at a time.

We have stated that an ALJ may not discredit subjective pain testimony solely on the ground that it is not fully corroborated by objective medical findings. Hammock v. Bowen, 879 F.2d at 502; Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir.1988) (Varney I ); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986).

In Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 1279 (9th Cir.1987), we held that an ALJ's findings discounting a claimant's subjective pain testimony are not sufficient where the ALJ makes only a general finding and does not state which pain testimony is not credible, nor what medical evidence suggests that the claimant's claim of pain is not credible. See also Varney, 846 F.2d at 584. The ALJ's findings in the present case do not 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....