Curry v. Sullivan

• Decision Date: 04 February 1991
• Docket Number: No. 89-55385,89-55385
• Citation: 925 F.2d 1127
• Parties: , Unempl.Ins.Rep. CCH 15861A Maria L. CURRY, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1127

925 F.2d 1127

32 Soc.Sec.Rep.Ser. 414, Unempl.Ins.Rep. CCH 15861A

Maria L. CURRY, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary, Defendant-Appellee.

No. 89-55385.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1990.

Memorandum Filed Sept. 6, 1990.

Opinion as Amended on Denial of Rehearing Feb. 4, 1991.

Thomas Garrett Roche, Robert Hoad, San Diego, Cal., for plaintiff-appellant.

Dennis J. Mulshine, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellee.

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

Before WALLACE, THOMPSON and O'SCANNLAIN, Circuit Judges.

ORDER

The memorandum disposition filed on September 6, 1990, 914 F.2d 262, is amended to add Part II B and redesignated an opinion authored by Judge O'Scannlain. The petition for rehearing is otherwise denied.

OPINION

O'SCANNLAIN, Circuit Judge:

We affirm the district court's order of summary judgment in favor of the Secretary of Health and Human Services.

I

Appellant Maria Curry underwent corrective single-artery bypass surgery on March 2, 1985. On February 12, 1986, Curry filed applications for disability insurance benefits and supplemental security income benefits. After a hearing, an administrative law judge ("ALJ") issued a six-page decision in which he found that Curry was not disabled. On June 15, 1987, the Appeals Council denied Curry's request for review of the ALJ's decision; this became the final decision of the Secretary.

Curry subsequently filed this action for judicial review of the Secretary's determination that she was not disabled and his attendant denial of disability benefits to her. In January 1989, the district court entered summary judgment in favor of the Secretary.

Curry timely appeals from the district court's judgment; we have jurisdiction under 28 U.S.C. Sec. 1291.

II

We must determine whether the findings of fact of the Secretary are supported by substantial evidence in the record and whether the Secretary properly applied the law. See Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985); 42 U.S.C. Sec. 405(g) (1988). The harmless-error rule applies. See Booz v. Secretary of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th Cir.1984).

A

The Secretary determined that Curry was not disabled within the meaning of 42 U.S.C. Sec. 423(d)(1)(A) because she had the residual functional capacity to perform light work. "Light work" entails the ability to lift and carry up to ten pounds frequently and twenty pounds occasionally. 20 C.F.R. Sec. 404.1567(b) (1989). It also requires "a good deal of walking or standing." Id.

A June 1985 assessment by Dr. Hernandez, a physician who was treating Curry, concluded that Curry had had a "benign" recovery from her March 1985 surgery. Dr. Hernandez indicated that "[a]t this point, I do not feel that the patient is totally permanently disabled." Tr. 190. Such an opinion of a treating physician is entitled to substantial weight. See, e.g., Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.1984).

In a July 1985 treadmill test performed by Curry and administered by Dr. Mondragon (Curry's treating physician at the time), Curry was able to perform up to seven METS. This test result is consistent with a "functional class I heart," as that term is defined by the American Heart Association. Such a result contrasts with Curry's pre-surgery test results, which were consistent with only a "functional class III heart."

Tests performed in August 1985 confirmed the presence of a functioning graft bypassing the occluded artery. Curry was subsequently advised by Dr. Mondragon, on a number of occasions, to increase her daily activity. See, e.g., Tr. 33-35, 253. ¹

The ALJ also considered Curry's testimony about her daily activities. Curry indicated that she was able to take care of her personal needs, prepare easy meals, do light housework, and shop for some groceries. An ability to perform such activities may be seen as inconsistent with the presence of a condition which would preclude all work activity. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.1989).

We conclude that the aforementioned and other evidence in the record was "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" that Curry was capable of performing light work. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quotation omitted) (defining substantial evidence). ²

B

In a supplemental filing, Curry has directed the court's attention to the intervening decision of the Second Circuit in New York v. Sullivan, 906 F.2d 910 (2d Cir.1990). New York involved a class-action challenge to policies used by the Secretary in determining whether "to parcel out disability benefits to applicants claiming to suffer from ischemic heart disease." 906 F.2d at 912. The district judge, "in a carefully reasoned opinion, granted summary judgment [for the claimants] and invalidated the Secretary's policy of relying exclusively on treadmill exercise test results when evaluating disability claims for cardiovascular disease as contravening the [Social Security] Act," and the Second Circuit affirmed. Id. In a passage cited by Curry, the court of appeals noted:

Evidence presented below established that the treadmill test, while recommended by many medical experts as a good diagnostic tool, results in misdiagnosis of ischemic heart disease on more than one third of the occasions. An individual who does not show signs of heart disease during a treadmill test may still be severely disabled from ischemia. False assessments may occur because treadmill testing does not consider the full range of stresses and exertions that arise at the workplace or in daily living. For example, the test does not account for demands placed on the heart by heat, cold, humidity, pollution, altitude, psychological pressures and physical efforts that are sudden or prolonged.

Id. at 914 (citation omitted).

The court pointed out that "[i]n certain circumstances, other widely used procedures, including nuclear tests ... and angiography, are more reliable than the treadmill test in measuring the severity of ischemic heart disease." Id. In light of these facts, the court held that the Secretary's "sole reliance on the treadmill test results to the exclusion of other available relevant evidence clearly violates Congress's requirement of particularized treatment and significant input from treating physicians." Id. at 916 (citations omitted).

We reject Curry's contention that New York v. Sullivan represents a change in the law relating to the Secretary's award of disability benefits. The question in this case was originally and remains whether substantial evidence supports the Secretary's decision. See Taylor, 765 F.2d at 875. Any change in the law that New York might have announced would not be binding upon this court in any event.

We do find the Second Circuit's decision significant, however, as a factual matter. The case is a class action, and throughout its opinion the court refers to the Secretary's administration of the challenged policies in the present tense. New York therefore represents a broad indictment of the Secretary's policies in this area--an indictment which would appear to reach beyond the case of the specific litigants that were before that court.

Nonetheless, the record in the present appeal clearly suggests that the Secretary did not rely exclusively on the results of a treadmill test in reaching his decision here. The Secretary relied on numerous other sources of evidence including angiography and reports from treating physicians, two sources of...