Davis v. Heckler

• Decision Date: 13 February 1989
• Docket Number: No. 85-2867,85-2867
• Citation: 868 F.2d 323
• Parties: , Unempl.Ins.Rep. CCH 14508A Jacqueline W. DAVIS, Plaintiff-Appellant, v. Margaret M. HECKLER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 323

868 F.2d 323

24 Soc.Sec.Rep.Ser. 546, Unempl.Ins.Rep. CCH 14508A

Jacqueline W. DAVIS, Plaintiff-Appellant, v. Margaret M. HECKLER, Defendant-Appellee.

No. 85-2867.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 1988.

Decided Feb. 13, 1989.

Abraham Virdeh, Virdeh & Virdeh, Santa Rosa, Cal., for plaintiff-appellant.

Michael R. Power, U.S. Dept. of Health & Human Services, San Francisco, Cal., for defendant-appellee.

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

Before FERGUSON and LEAVY, Circuit Judges, and WILSON, ¹ District Judge.

WILSON, District Judge:

Jacqueline Davis appeals from the denial of disability insurance benefits contending that the Administrative Law Judge ("ALJ") improperly rejected the opinion of her treating physician. We agree and reverse. In the process we take the opportunity to clarify the legal standard for rejecting the opinion of a treating physician, as well as to explain the claimant's evidentiary burden in establishing a prima facie case of disability.

FACTS AND PROCEEDINGS BELOW

Davis alleged disability commencing December 30, 1981 due to heart disease. On December 30, 1981, Davis sought medical treatment in response to swelling in her ankles and extreme shortness of breath. Dr. Paul Umino, a general practitioner and Davis's family physician, diagnosed her condition as congestive heart failure secondary to arteriosclerotic heart disease. A chest X-ray on January 3, 1982 revealed a moderately enlarged heart. The radiologist diagnosed her condition as "mild" congestive heart failure with no evidence of focal pulmonary disease. Dr. Umino placed claimant on medication, and, on a follow-up visit on January 9, 1982, reported marked improvement in her symptoms. A cardiogram taken at this follow-up session revealed sinus tachycardia (irregular heart beats) and ST-T wave changes consistent with "acute myocardial failure" and "severe" heart disease, but there was no indication of acute myocardial infarction.

Dr. Umino termed the prognosis "fair," but noted that due to her shortness of breath and congestive heart failure, she could not perform sustained work. He concluded, "Because of her shortness of breath, I consider her basically totally disabled because of this condition."

There is very little evidence of Davis's heart condition after January 9, 1982. The evidence consists of five treatment notes from Dr. Umino and the records of one visit to the Emergency Room at Petaluma Valley Hospital. The treatment notes are largely illegible, but variously indicate At the administrative hearing on June 6, 1983, the ALJ stated: "There's very little, as I recall, very little medical at all ... There's not enough in there to show a severe impairment." Davis's counsel agreed stating that Exhibit 17 (Dr. Umino's conclusion that claimant was incapable of working) constitutes "an opinion, there's no medical support for it." Davis's counsel stated that this lack of medical support for his client's claim was the reason he had arranged for claimant to be examined by Dr. Blackard, a cardiologist in San Francisco, on August 4, 1983.

Davis denied shortness of breath and complained of tiredness and chest pains. The records from the Emergency Room provide further inconclusive medical evidence. Davis came to the Emergency Room on August 20, 1982, complaining of extreme shortness of breath and reporting chest pain with activity. An electrocardiogram revealed the following abnormalities: few atrial premature contractions; a brief run of atrial fibrillation with ventricular response of approximately 120 per minute vs. sinus tachycardia seen on the rhythm strip; and ST-T changes consistent with ischemia and/or Digitalis effect since 3/4/78. The chest X-rays, however, showed no obvious abnormalities. Claimant's heart rate was regular with no murmur noted. Her breathing was impaired by only a "few wheezes," and she presented no pedal edema. The diagnosis was acute alcohol intoxication.

The ALJ agreed to leave the record open for sixty days after the hearing to allow claimant to obtain the consultative cardiological report of Dr. Blackard. On June 23, 1983, before the report was obtained, Davis suffered a disabling stroke. No report from Dr. Blackard was submitted.

At the direction of the Secretary, Davis was examined by Dr. Mohinder P.S. Ahluwalia on December 8, 1983. Davis informed the doctor that she had no history of chest pain, but experienced a cough, sputum production, asthmatic bronchitis and wheezing for the preceding twenty years. She had smoked two packs of cigarettes per day for forty years until her stroke in June 1983. Dr. Ahluwalia examined Davis, reviewed medical records and offered his impressions of right cerebrovascular accident with left hemiparesis, status post-congestive heart failure, compensated for by medication, chronic obstructive lung disease due to smoking, and asthmatic bronchitis. The doctor found that claimant could not use her left arm and could not walk without a walker due to weakness in her left leg. The doctor filled out a form indicating limitations that would prevent claimant from working.

On May 15, 1984, the ALJ held a supplemental hearing to take the testimony of a medical advisor, Dr. John J. Sampson, a Board Certified internist specializing in cardiovascular diseases. He testified that in his opinion, from reviewing the medical evidence, claimant has been disabled since her June 23, 1983 stroke, but he could not determine the severity of her heart condition before the stroke. Davis's counsel again asked for time to secure a consultative report from Dr. Blackard. The ALJ agreed to keep the record open for thirty days. No cardiological report was filed.

On July 27, 1984, the ALJ rendered his decision, granting benefits as of June 23, 1983 but denying benefits for the period December 31, 1981 to June 23, 1983.

Davis appealed the Secretary's decision to the district court which granted judgment in favor of the Secretary, holding that the ALJ's decision was supported by substantial evidence. Davis appeals to this court pursuant to 42 U.S.C. Section 405(g) (1982).

STANDARD OF REVIEW

This court reviews the district court's grant of summary judgment de novo. Paulson v. Bowen, 836 F.2d 1249, 1250 (9th Cir.1988).

In reviewing the ALJ's denial of disability benefits, a court will affirm if the findings are supported by substantial evidence and the Secretary applied the correct legal standards. Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir.1987). The same standard

                applies where the ALJ has awarded benefits and the claimant seeks additional benefits, as in this case.  See Swanson v. Secretary of Health and Human Services, 763 F.2d 1061, 1064 (9th Cir.1985).  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).  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.    In determining whether there is substantial evidence to support the ALJ's decision, this Court is required to review the administrative record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusion.  Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986)
                

DISCUSSION

I. Burdens

In order to qualify for Social Security disability benefits a claimant must establish that a medically determinable physical or mental impairment prevents him or her from engaging in substantial gainful activity. 42 U.S.C. Section 423(d)(1)(A) (1982). The impairment must result from abnormalities which are demonstrable by medically acceptable clinical or laboratory diagnostic techniques, Section 423(d)(3), and must be expected to result in death or last for a continuous period of at least 12 months. Section 423(d)(1)(A).

The claimant has the burden of proving disability within the meaning of the Social Security Act. Martinez, 807 F.2d at 773. The claimant establishes a prima facie case of disability by showing that her impairment prevents her from performing her previous occupation. Id. The burden then shifts to the Secretary to show that the claimant can perform other types of work in the national economy, given her residual functional capacity, ² age, education and work experience. Id.

At issue in this appeal is whether the ALJ properly disregarded Davis's treating physician's opinion that Davis was disabled as of December 30, 1981, and in the process correctly determined that Davis had not made out her prima facie case.

II. Treating Physician's Opinion

Where an ALJ chooses to disregard the opinion of the treating physician, he must set forth clear and convincing reasons for doing so if the treating physician's opinion is not contradicted by another doctor. Fife v. Heckler, 767 F.2d 1427, 1431 (9th Cir.1985); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.1984); Coats v. Heckler, 733 F.2d 1338, 1340 (9th Cir.1984); Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 601 (9th Cir.1984); Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir.1983); Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir.1981); see also Albrecht v. Heckler, 765 F.2d 914, 915 (9th Cir.1985); Lombardo v. Schweiker, 749 F.2d 565, 566 (9th Cir.1984). If the treating physician's opinion is contradicted by another doctor and the ALJ wishes to disregard the opinion of the treating physician, the ALJ must set forth "specific, legitimate reasons for doing so that are based on substantial evidence in the record." Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983); see also Winans v. Bowen, 820 F.2d 1519, 1523 (9th Cir.1987), modified, No. 83-3771, 853 F.2d 643 647 (9th Cir. August 4, 1988); Sprague...