Gonzalez v. Sullivan

• Decision Date: 12 September 1990
• Docket Number: No. 87-6685,87-6685
• Citation: 914 F.2d 1197
• Parties: , Unempl.Ins.Rep. CCH 15687A Miguel GONZALEZ, Plaintiff/Appellant, v. Louis W. SULLIVAN, Secretary, * Department of Health and Human Services, Defendant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1197

914 F.2d 1197

31 Soc.Sec.Rep.Ser. 188, Unempl.Ins.Rep. CCH 15687A

Miguel GONZALEZ, Plaintiff/Appellant, v. Louis W. SULLIVAN, Secretary, ^* Department of Health and Human Services, Defendant/Appellee No. 87-6685.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 4, 1989.

Decided Sept. 12, 1990.

Phillip R. Newell, Newell & Messer, San Luis Obispo, Cal., for plaintiff-appellant.

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

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

Before FLETCHER and KOZINSKI, Circuit Judges, and MUECKE, ^** District Judge.

MUECKE, District Judge:

This is an appeal from the district court's ruling upholding the Secretary's decision denying disability benefits. We vacate the decision of the district court and remand.

BACKGROUND

Appellant is a forty-six year old male with a sixth grade education. In August 1981, while working as a meat cutter, appellant slipped and injured his back.

Several doctors examined appellant and have given differing opinions. Dr. Edward A. Smith, a neurosurgeon, found appellant to be temporarily totally disabled in March 1982 and told him to stop working. One month later, Dr. W. Gordon Smith examined appellant and concluded that he was totally disabled.

In June 1982, Dr. William Rack found no objective evidence for classifying appellant as totally disabled and suggested that appellant return to work. From a subjective point of view, however, Dr. Rack stated that appellant "would appear to be totally disabled for any type of physical activity."

In April 1983, appellant began seeing Dr. Richard Williams, a neurosurgeon. In June, Dr. Williams diagnosed a herniated lumbar disk at the L4-L5 level and successfully performed a hemilaminectomy. After the operation, Dr. Williams noted an improvement in the lower back, but also noted that problems still existed. Dr. Williams opined that appellant could perform light work. Dr. Williams made this recommendation despite the fact that appellant complained of lower thoracic pain in the right side of his back. In February 1984, Dr. Williams changed his opinion and stated that because of appellant's persistent complaints of pain, he was temporarily totally disabled.

At the suggestion of Dr. Williams, appellant began seeing Dr. Eltherington from the Stanford Pain Clinic. In a November, 1984 report, Dr. Eltherington noted complaints of paravertebral spasms and pain around the T10 area. In June 1985, appellant still complained of pain on the right side of the spine at the T8 area, which would travel around to the right. Dr. Eltherington stated that "it is unlikely that this clinic has anything further to offer this patient, and that he needs to become involved in vocational rehabilitation in order to help him develop interests to focus on other than his pain." In 1985, Dr. Eltherington concluded that appellant could perform sedentary work even though he had limitations.

In February 1985, Dr. Brendan McAdams, Jr. concluded that because of appellant's complaints of pain, he was still temporarily disabled. Dr. McAdams could not, however, find any "historical component" to the complaints. Dr. McAdams suggested that appellant continue visiting the Stanford Pain Clinic and that he should have his urologic problem evaluated.

Appellant first applied for disability benefits on May 26, 1983, alleging that his disability began on March 8, 1982. In a notice dated July 27, 1983, the Secretary denied the application. On October 24, 1984, appellant reapplied for disability benefits, once again alleging that he had been disabled since March 8, 1982.

After a hearing, an administrative law judge (ALJ) issued a written opinion denying appellant's application for disability benefits. The ALJ concluded that the issue of disability was res judicata through July 27, 1983, the date of the initial denial. The ALJ found that appellant could not perform his past job as a meat cutter, but that appellant could perform sedentary work. The ALJ found that the medical evidence established that appellant has lumbar disc disease and mid-back musculoskeletal back pain, but that he did not have an impairment or combination of impairments listed in or equal to those listed in the regulations. Finally, the ALJ found that appellant's pain testimony was out of proportion to the medical evidence of record and therefore not completely credible.

The district court found that substantial evidence supported the Secretary's decision. Appellant timely appealed.

DISCUSSION

I. Waiver of Right to Appeal

The Secretary argues that appellant's failure to object to the magistrate's recommendation that summary judgment should be granted in the Secretary's favor constitutes a waiver of the right to appeal. The failure to object to a conclusion of law, such as whether there is substantial evidence, does not constitute a waiver of the right to appeal. See Greenhow v. Secretary of Health and Human Services, 863 F.2d 633, 635-36 (9th Cir.1988).

II. Standard of Review

This court reviews de novo the district court's decision granting the Secretary's motion for summary judgment. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989). This court must affirm a denial of disability benefits if the findings are supported by substantial evidence and the Secretary applied the correct legal standards. See Davis v. Heckler, 868 F.2d 323, 325 (9th Cir.1989). Substantial evidence is "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 is "less than a preponderance." Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988). This court cannot affirm the Secretary by simply isolating a certain amount of supporting evidence. See Hammock, 879 F.2d at 501. In reviewing the record, this court must examine the administrative record as a whole, weighing both the evidence that supports and detracts from the Secretary's conclusion. See Davis, at 326.

III. Whether Appellant Satisfies the Listing of Impairments

The ALJ made a five page, single-spaced summary of the record. The ALJ stated the information from each of the doctors and summarized appellant's testimony. The ALJ stated that the record substantiated some of appellant's complaints. The ALJ did not, however, state what evidence supported the conclusion that appellant's impairments do not meet or exceed the Listing of Impairments. Appellant argues that the Secretary committed error by failing to discuss why he did not satisfy the Listing of Impairments.

The regulations merely require the Secretary to "review the symptoms," 20 C.F.R. Sec. 404.1526 (1988), and make specific findings essential to the conclusion. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984) (per curiam); Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir.1981). " 'An examiner's findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which the ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision.' " See Lewin, 654 F.2d at 635 (quoting Dobrowolsky v. Califano, 606 F.2d 403, 409 (3rd Cir.1979)).

It is unnecessary to require the Secretary, as a matter of law, to state why a claimant failed to satisfy every different section of the listing of impairments. The Secretary's four page "evaluation of the evidence" is an adequate statement of the "foundations on which the ultimate factual conclusions are based." To require the ALJ's to improve their literary skills in this instance would unduly burden the social security disability process. See Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir.1985).

IV. Claimant's Pain Testimony

Because the Secretary concluded that appellant's subjective complaints were out of proportion to the medical evidence, this case involves excess pain testimony. See Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir.1988), modified, 859 F.2d 1396 (9th Cir.1988) (hereinafter Varney II ). In finding that appellant's testimony was not completely credible, the ALJ did not "fully articulate reasons for refusing to credit" appellant's subjective pain testimony. ¹

A possible explanation why the ALJ discounted appellant's pain testimony is that "[claimant] indicated that twice a day he walked one to one and a half miles, and he sometimes watches ball games, alternating sitting and standing, for an hour to an hour and a half at a time." ² ALJ Findings of Dec. 11, 1985, at 14. However, the ALJ did not specifically link the testimony about appellant's daily activity to a conclusion that appellant's excess pain testimony lacked credibility. Moreover, there was absolutely no finding to the effect that the ability to perform those daily activities translated into the ability to perform appropriate work. Cf. Fair, 885 F.2d at 602 ("Yet if a claimant is able to spend a substantial part of his day engaged in pursuits ... that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit an allegation" of excess pain) (latter emphasis added). The ALJ's opinion indicates that he probably disbelieved the excess pain testimony because it was "out of proportion to the medical evidence"--an inadequate reason, since it is the very nature of excess pain to be out of proportion to the medical evidence.

While the ALJ's failure to link his discounting of the appellant's pain testimony to the appellant's testimony about his daily activities may seem to be a minor error, we are wary of speculating about the basis of the ALJ's conclusion--especially when his opinion indicates that the conclusion may have been based exclusively upon an improper reason.

In Varney II, after concluding that the ALJ failed to...