Hammock v. Bowen

• Decision Date: 09 February 1989
• Docket Number: No. 87-3809,87-3809
• Citation: 867 F.2d 1209
• Parties: Elizabeth J. HAMMOCK, Plaintiff-Appellant, v. Otis BOWEN, Secretary, Department of Health & Human Services, Defendant- Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1209

867 F.2d 1209

24 Soc.Sec.Rep.Ser. 538

Elizabeth J. HAMMOCK, Plaintiff-Appellant, v. Otis BOWEN, Secretary, Department of Health & Human Services, Defendant- Appellee.

No. 87-3809.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 6, 1988.

Decided Feb. 9, 1989.

Ira Zarov, Oregon Legal Services Corp., Portland, Or., for plaintiff-appellant.

Shelly R. Brown, Asst. Regional Counsel, Dept. of Health and Human Services, Region X, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before HUG, FLETCHER and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Elizabeth Hammock appeals from the district court's grant of summary judgment for the Secretary of Health and Human Services ("the Secretary") upholding a denial of Supplemental Social Security Income ("SSI") benefits under 42 U.S.C. Sec. 1381 et seq. and a denial of disability benefits under 42 U.S.C. Sec. 401 et seq. Hammock claims that the Secretary disregarded her treating physician's opinion, failed to credit her pain testimony although it was supported by objective medical evidence, failed to consider her impairments in combination and failed to consider her obesity when determining disability. Hammock contends that she has met her burden of proof regarding her inability to return to prior relevant work.

The Secretary did not consider the combined effect of all of Hammock's impairments on her ability to return to work and he failed to articulate any reasons for disregarding claimant's pain testimony or the treating physician's pain testimony. Therefore, we vacate the district court's judgment and remand to the Secretary for a hearing on the issue of whether Hammock can perform other work.

FACTUAL BACKGROUND

Hammock submits evidence of disability due to degenerative spine disease, obesity, hypertension, and arthritis. In addition, she establishes the existence of hearing loss, ulcers which are not completely healed, and a rash of unknown origin. Hammock was 57 years old at the time of her hearing; she is five feet three inches tall and her weight has recently fluctuated from 273 pounds to 236 pounds.

Hammock has a high school education and she worked for sixteen years as a telephone operator supervisor. From 1982-84 she maintained a part-time job as a thrift store clerk for twenty hours a week. She has not worked since 1984.

Hammock's treating physician, Dr. Ordelheide, documented her history of back problems, hearing loss, ulcers, obesity, and hypertension. Ordelheide concluded that Hammock "would not likely be hired for any kind of work because of her ongoing medical problems." Ordelheide further stated that "[Hammock's] physical condition would allow her to do certain sedentary activities, but would require frequent interruptions because of her back discomfort....Her other medical problems would not in themselves prevent her from working; taken in combination however, she would not be an ideal candidate for an employer." The Social Security consulting physician, Dr. Oksenholt, confirmed that Hammock was suffering from degenerative disc disease, obesity, and hypertension. Although Oksenholt mentions a history of arthritis, he does not discuss the arthritis or the hearing loss. He concluded that "[t]here are probably many [sedentary] jobs that she might be able to perform." Claimant's 1981 disability determination concluded that Hammock suffered from arthritis, a seizure disorder, and hypertension, which were then under control. Additionally, the 1981 review listed moderately severe degenerative disease of the spine and moderately severe osteoarthritis in the knees.

On March 21, 1986, an administrative law judge ("ALJ") determined that none of Hammock's health problems established disability. The ALJ found that Hammock's testimony regarding her back pain, arthritis, and ulcers was not credible. He concluded that her obesity did not qualify as a disabling condition because it is a remediable impairment. The ALJ ultimately concluded that Hammock could perform sedentary work and therefore that she did not meet her burden of proving that she could not perform her relevant prior work. The Social Security Appeals Council and the district court affirmed the ALJ's decision and Hammock timely appeals.

DISCUSSION

Standard of Review

This court reviews de novo the district court's grant of summary judgment for the Secretary. See Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1278 (9th Cir.1987). We affirm a denial of benefits when the Secretary's decision is supported by substantial evidence and is free from legal error. Sanchez v. Secretary of Health & Human Servs., 812 F.2d 509, 510 (9th Cir.1987). However, a reviewing court must review the record as a whole and consider adverse as well as supporting evidence. We "may not affirm simply by isolating a specific quantum of supporting evidence." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985).

Claimant's Burden of Proof

Hammock bears the burden of proof to establish disability. She must establish that a medically determinable physical or mental impairment prevents her from engaging in substantial gainful activity and that her impairment prevents her from performing her previous occupation. Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir.1986). Once the Secretary's 1981 finding of nondisability became final, a presumption that the claimant is not disabled attaches. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985). Thus, Hammock must present evidence of "changed circumstances" that would establish disability. Lyle v Secretary of Health & Human Servs., 700 F.2d 566, 568 (9th Cir.1983) ("[I]n absence of proof of change, a prior ruling respecting disability gives rise to a presumption that the condition continues to exist.").

Hammock provided new medical evidence of ulcers, rashes, and some degeneration of the spine, as well as evidence of the existence of arthritis in her feet. Additionally, it is significant that the claimant turned 55 prior to the present benefits application. Her "attainment of 'advanced age' constitutes a changed circumstance precluding the application of res judicata to the first administrative law judge's ultimate finding against disability." Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir.1988); see also 20 C.F.R. Sec. 404.1563(d) (1987).

The Secretary's Treatment of the Physician's Opinion

Hammock contends that the Secretary impermissibly rejected the conclusions of her treating physician and rejected the objective medical evidence without providing any reasons. Montijo v. Secretary of Health & Human Servs., 729 F.2d 599, 601 (9th Cir.1984). The Secretary does have discretion to resolve questions of credibility and conflicts in testimony. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). However, if the conflict consists of differences between the opinions of the treating physician and the examining physician, the Secretary must credit the treating physician's opinion unless he provides specific and legitimate reasons supported by substantial evidence in the record. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987); Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987).

As in Sprague and Winans, this "is not a case of contradictory evidence of a physical impairment, but one in which a treating physician's opinion on the ultimate question of the degree of impairment differs from that of an examining physician ...." Sprague, 812 F.2d at 1230; see also Winans, 853 F.2d at 647. There is no evidence in the record that the claimant is not suffering from hypertension, obesity, arthritis, mild hearing loss, ulcers, and back problems. Additionally, all of the prior medical evidence in the record, obtained from other SSI benefits applications, supports the treating physician's findings of impairment.

The Secretary accepted the medical evidence and the medical conclusions of both Drs. Ordelheide and Oksenholt that Hammock's impairments are severe. The issue then becomes whether, given Hammock's documented impairments, she can perform her past work. The Secretary rejected the treating physician's conclusion that she could not perform past work. The Secretary's conclusion that Hammock could perform past work is not supported by substantial evidence because no specific reasons were given for disregarding Dr. Ordelheide's opinion to the contrary. Winans, 853 F.2d at 647. Therefore, we accept as a matter of law Dr. Ordelheide's conclusions. Dr. Ordelheide opined that Hammock's back discomfort would require frequent interruptions of Hammock's activities. Because Hammock's past work required prolonged periods of sitting, Dr. Ordelheide's conclusions establish that Hammock cannot perform her past work.

The Secretary's Treatment of Hammock's Pain Testimony

Pain is an important factor to consider when determining disability. Varney v. Secretary of Health & Human Servs., 846 F.2d 581, 583 (9th Cir.1988) ("Varney I "). The claimant must submit objective medical findings establishing medical impairments that "could reasonably be expected to produce the pain." 42 U.S.C. Sec. 423(d)(5)(A) (1982 & Supp. III 1985); see 20 C.F.R. Sec. 404.1529 (1987). See also Gamer, 815 F.2d at 1279. It is reversible as a matter of law to discredit excess pain testimony only because the medical evidence does not fully establish that level of pain. Id. The Secretary is free to disbelieve a claimant's pain testimony, but he must make specific findings justifying that decision. Varney, 846 F.2d at 584; Cotton, 799 F.2d at 1407. Moreover, the medical evidence need not establish that the pain to which the claimant testifies is the inevitable result of the impairment. Summers v. Bowen, 813 F.2d 241, 242 (9th Cir.1987); Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986).

The legislative intent of the Social Security Disability Reform Act indicates that Congress intended that excess pain testimony be a relevant...