Desrosiers v. Secretary of Health and Human Services, 87-5765

Decision Date16 May 1988
Docket NumberNo. 87-5765,87-5765
Citation846 F.2d 573
Parties, Unempl.Ins.Rep. CCH 17985.5 Robert H. DESROSIERS, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Lawrence D. Rohlfing, Williams & Rohlfing, Santa Fe Springs, Cal., for plaintiff-appellant.

Judith A. Waltz, Asst. Regional Counsel, San Francisco, Cal., for defendant-appellee.

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

Before SNEED, PREGERSON and KOZINSKI, Circuit Judges.

SNEED, Circuit Judge:

This is an appeal from the district court's judgment that upheld the decision of the Secretary of Health and Human Services (Secretary) to deny Desrosiers Social Security disability insurance benefits. On appeal, Desrosiers contends that (1) the Secretary's finding that he can perform the full range of light work is erroneous because that finding is not supported by substantial evidence, and (2) the Secretary's use of the Medical-Vocational Guidelines to find that Desrosiers is not disabled is incorrect because he has pain and postural limitations not covered by the Guidelines.

We reverse and remand for further proceedings. We do so on the basis that the Secretary's finding is not supported by substantial evidence. The basis of our holding that the Secretary's finding was not supported by substantial evidence necessitates a remand for further proceedings. Because of the remand we shall address the second of Desrosiers' contentions.


Desrosiers, a fifty-three-year-old former steel worker, complains of back problems that limit his ability to engage in most sustained physical activities without experiencing increasing and ultimately severe pain. Desrosiers' back problems began in the mid-1970's, when he felt occasional sharp deep pains while working. In 1980, he suffered more severe and persistent back pain. His condition worsened again in 1982-1983.

In early 1984, Dr. Woodard, a workers' compensation doctor, evaluated Desrosiers for purposes of preparing a California state workers' compensation report. The doctor noted that Desrosiers' back pain was "constant every day" unless he took pain medication and that Desrosiers generally took medication every morning. Dr. Woodard's objective medical findings included "palpable spasms, decreased grip strength in the left arm, x-ray findings of chronic tendonitis as well as spasm and disc space narrowing." Dr. Woodard predicted that "[Desrosiers'] subjective complaints of pain will be constant and slight, increasing to constant and moderate and occasionally severe with any physical activity." (Emphasis added).

Another workers' compensation physician, Dr. Gaskell, evaluated Desrosiers in connection with his California workers' compensation claim during the same period. He documented Desrosiers' complaints of "[d]aily moderate to severe pain in upper back aggravated with lifting, excessive turning of head or use of arms, sitting for prolonged time in certain positions, sleeping on stomach." Dr. Gaskell described Desrosiers as having degenerated discs with associated arthrosis, neuroradiculitis, and osteoarthritic changes, dorsal spine, and stated that this condition precluded "elevation of the left upper extremity above 90 degrees" and "repeated bending and stooping." Dr. Gaskell described Desrosiers' pain residuals as "[c]onstantly slight/intermittently slight to moderate, becoming constantly moderate with lifting, bending, stooping, pulling, pushing, climbing, becoming greater than moderate and rising to severe with prolongation of such activities." (Emphasis added).

Desrosiers first applied for social security disability insurance benefits in early 1985. The Social Security Administration denied both his initial application and his request for rehearing. Desrosiers then asked for a hearing before an Administrative Law Judge (ALJ).

Desrosiers' testimony before the ALJ was consistent with Dr. Woodard's and Dr. Gaskell's earlier predictions of increasing and ultimately severe pain with prolonged activity of any kind. He also revealed that his experience with medication has been The ALJ noted for the record that Desrosiers was fifty-one years old at the time of the hearing, that he had a GED high-school equivalency certificate, and that he had worked at unskilled positions in the steel industry for thirteen years. In addition to noting Desrosiers' pain limitations, the ALJ summarized the medical conclusions as follows:

                largely unsuccessful:  he has had to change medicines several times, and he now tries to take pain pills only when he "can't stand it."    Desrosiers further testified that spends his time resting and engaging in limited housework.  At this level of activity, his pain rises to an unbearable level approximately once per week

Pertinent substantial medical evidence of record shows the claimant has radiculopathy from the C7 nerve root on the left and myelogram and electromyogram showed definite nerve root impingement at C8. Claimant also has cervical spondylosis at C7 and C8 nerve roots and his diagnosis remains degenerative disc as C4-5 and C5-6 with associated arthrosis, herniated disc syndrome at C7 and chronic tendinitis of the cervical spine.

The ALJ decided that Desrosiers could not perform his past work, but that he retained the residual functional capacity to perform the full range of light work. "Light work" involves:

lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities.

20 C.F.R. Sec. 404.1567 (1987).

According to the Medical-Vocational Guidelines, a fifty-one year old male with a high school equivalency certificate who has performed largely unskilled work is not disabled as long as he is limited to light work only. 20 C.F.R. pt. 404, subpt. P, app. 2, rule 202.13 (1987). The same male would be disabled were he limited to sedentary work. Id. rule 201.12. The ALJ applied the Guidelines for light work and observed that they directed a conclusion of "not disabled."

Desrosiers petitioned the Appeals Council for review of the ALJ's decision. To support his request for review, Desrosiers submitted an additional report by his treating physician, Dr. Sirichai. Dr. Sirichai had been presented with the technical definitions of "sedentary work," "light work," "medium work," and "heavy work," as those terms are used for Social Security disability evaluations. He was then asked to "review the definitions of work used by Social Security ... and check the degree of disability, if any [suffered by the claimant]." Dr. Sirichai indicated that Desrosiers could "perform sedentary work, but not light work."

The Appeals Council denied Desrosiers' request for review, and stated that it had "carefully considered," but nonetheless rejected, Dr. Sirichai's conclusion that Desrosiers was limited to sedentary work. In rejecting the treating physician's conclusion, the Council merely noted that "Dr. Sirichai has offered no new clinical findings to support his opinion and the objective findings already of record do not support his opinion."

Desrosiers sought review of the Secretary's determination in district court. The court referred the case to a United States Magistrate, who heard cross-motions for summary judgment. The Magistrate issued proposed findings and recommendations upholding the Secretary's denial of benefits. The district court adopted the Magistrate's findings and recommendations, and entered a judgment for the Secretary on February 19, 1987.



This court may set aside a denial of Social Security disability insurance benefits when the Secretary's findings are based on legal error or are not supported by substantial

                evidence in the record as a whole.   Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986);  Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985).  "Substantial evidence" means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)), but "less than a preponderance."   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 402, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938));  Taylor, 765 F.2d at 875.  We consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Secretary's conclusion.   Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985)

The finding of the Administrative Law Judge (ALJ) that Desrosiers' allegations of "inability to perform substantial gainful activity" were "contradicted by the reports of all examining physicians" was incorrect. Administrative Record (A.R.) at 14. The only physician who made a medical conclusion premised on the Social Security guidelines was Doctor Sirichai, the treating physician, who found Desrosiers limited to sedentary work, a condition that would entitle him to disability status. Doctors Woodard and Gaskell made no such examination.

Doctors Woodard and Gaskell evaluated Desrosiers for his California workers' compensation claim. In that context they found Desrosiers incapable of "heavy" work. That was as far as they had to go. It was...

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