Johnson v. Shalala

• Decision Date: 27 July 1995
• Docket Number: No. 93-56607,93-56607
• Citation: 60 F.3d 1428
• Parties: , Unempl.Ins.Rep. (CCH) P 14702B, 95 Cal. Daily Op. Serv. 5869, 95 Daily Journal D.A.R. 10,031 Sabrina JOHNSON, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1428

60 F.3d 1428

48 Soc.Sec.Rep.Ser. 433, Unempl.Ins.Rep. (CCH) P 14702B,

95 Cal. Daily Op. Serv. 5869,

95 Daily Journal D.A.R. 10,031

Sabrina JOHNSON, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services Defendant-Appellee.

No. 93-56607.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 5, 1995.

Decided July 27, 1995.

Joel D. Leidner, Los Angeles, CA, for plaintiff-appellant.

Kaladharan M.G. Nayar, Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee.

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

Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges.

FLETCHER, Circuit Judge:

Sabrina Johnson ("claimant") appeals the denial of her claim for social security disability benefits. The final decision of the Secretary of Health and Human Services was affirmed by the district court. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 3, 1981, claimant injured her back while lifting her child. To be eligible for disability benefits, claimant had to establish permanent disability before the expiration of her disability insurance coverage on December 31, 1986.

Pre-expiration Medical Evidence

During the first two and one-half years following claimant's injury, she sought medical attention from Dr. Robert Hunt for her lower back three times: one office visit on March 5, 1981 and two CT scans performed in 1981 and 1983. The record does not suggest she was treated by anyone else during this period.

Dr. Hunt did not examine claimant again until October 23, 1986. He reported pain in the claimant's lower spine, decreased range of motion, and the need for claimant to hold onto the wall for support while walking. He diagnosed claimant as having marked narrowing of L5-S1 interspace, and spurring of L3-4-5. He also noted the absence of muscle spasms and reported normal posture, intact sensations, strong and equal muscle power, and strong reflexes.

On November 5, 1986, magnetic resonance imaging (MRI) and a CT scan confirmed the disc space narrowing at L5-S1, and revealed a moderate disc bulge or herniation, hardening of the disc, and pressure on the nerve roots.

On November 18, 1986, neurologist Dr. Rafael examined claimant and found that she "continued to be able to function as a mother and a housekeeper but is in constant pain" and "has learned to 'live with it.' " (Letter from Dr. Rafael to Dr. Hunt.) He noted that prolonged sitting worsened her pain, but using a lordotic pillow and stretching exercises afforded some relief.

Based upon the examinations noted above, Dr. Hunt concluded on December 4, 1986 that because of the condition of her lower back, claimant was "temporarily disabled" and should "continue a program of conservative care."

Post-expiration Medical Evidence

Claimant's disability insurance coverage expired on December 31, 1986. In April 1988, claimant was involved in an automobile accident which caused her neck discomfort. A doctor's report dated April 14, 1989 stated that claimant reported having lower back Claimant was reinjured in a second automobile accident on December 4, 1989, "resulting in increased upper back and neck pain" (Dr. Hunt's letter dated July 6, 1990) for which she was treated by Dr. Hunt over the next few months. However, when claimant sought treatment for her lower back, Dr. Hunt reported as interim history that "[t]he patient states that she has aggravated her condition on 12/4/89 at which time she was involved in an automobile [sic] and was rearended." (Dr. Hunt's letter dated July 6, 1990.)

pain which had worsened since her auto accident.

On January 31, 1991, Dr. Hunt prepared a Functional Capacities Evaluation Form which noted that the claimant had the following limitations and abilities: she could frequently lift items less than ten pounds; she could not stand for more than two hours (with normal breaks) in eight hours; she could not sit for more than six hours (with normal breaks) in eight hours; and she had unlimited reaching and handling ability.

Dr. Hunt provided a Supplemental Report on February 12, 1992 stating that claimant was "well known to this office" and concluded that claimant was "for all practical purposes, disabled as a consequence of her lumbar condition ... since the date of her initial evaluation in this office, 10/23/86, and probably before then."

Testimony at the Administrative Hearing

At the administrative hearing on February 19, 1992, claimant testified that between the date of her injury in 1981 and the expiration of her disability insurance, she experienced pain which radiated from her back down her left leg to the knee, and sometimes down her right leg. She said her condition "did not change" between 1981 and the date of the hearing, but contradictorily complained of aggravation over the last several years. She testified that the pain was unpredictable, prevented participation in numerous recreational and social activities because she could sit only one to one and one-half hours at a time, and it required her to lie down and elevate her feet three to four hours per day.

A vocational expert, Mr. Edward Kurata, also testified at the hearing. He accepted as fact that claimant "could not do [her] previous job" because it required sitting up to two hours or more at a time. Nonetheless, based on the understanding that claimant was limited to sedentary work and had other specified limitations, ¹ the expert found that claimant could work as a production assembler or office helper, jobs available in large numbers in the Los Angeles area.

Procedural History

Claimant filed her application for disability benefits on July 24, 1990, alleging that she became disabled on March 5, 1981. The Social Security Administration denied her application both initially and on reconsideration. At the administrative hearing the ALJ found that claimant suffered from a medically determinable, severe impairment, but that her testimony of debilitating pain was not credible and that she failed to provide reliable medical evidence to show total disability. ² The ALJ found that although claimant could no longer perform her past work, she was capable of performing certain types of work available in the economy and therefore denied benefits. On appeal to the district court, the parties submitted the case to a magistrate judge on cross-motions for summary judgment. He affirmed the Secretary.

JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 42 U.S.C. Sec. 405(g).

STANDARD OF REVIEW

We review district court decisions granting summary judgment de novo. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir.1989). The Secretary's denial of disability benefits will be overturned only if it is not supported by substantial evidence, or if it is based on legal error. Cotton v. Bowen, 799 F.2d 1403, 1406 (9th Cir.1986).

DISCUSSION

In determining the ultimate issue of disability, claimant bears the burden of proving she is disabled. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir.1990); Cotton, 799 F.2d at 1405. She must prove that she was either permanently disabled or subject to a condition which became so severe as to disable her prior to the date upon which her disability insured status expires. Morgan v. Sullivan, 945 F.2d 1079, 1080-81 (9th Cir.1991); Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir.1984).

Claimant must produce complete and detailed objective medical reports of her condition from licensed medical professionals. 20 C.F.R. Secs. 404.1512(a)-(b), 404.1513(d). As a first step, the medical reports, together with such other evidence as is adduced, must establish that she is disabled to the extent that she cannot return to her former job. It is undisputed here that the claimant satisfactorily showed that her condition precluded return to her former job.

The burden then shifts to the Secretary to identify specific jobs existing in substantial numbers in the national economy that claimant can perform despite her identified limitations. If the limitations are non-exertional and not covered by the grids, a vocational expert is required to identify jobs that match the abilities of the claimant, given her limitations. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.1989) (hypothetical questions to vocational expert must set out all limitations to show ability to perform specific jobs).

Claimant faults the ALJ for discounting the level of her pain. She contends it was much more debilitating than the ALJ admits. She also argues that the ALJ improperly refused to rely on the treating physician's determination that she was permanently and totally disabled by October 23 of 1986. These objections go to the existence and extent of her disability.

She next complains that the ALJ erred in relying on the vocational expert's opinion because he improperly testified that she could perform two types of jobs that he described as "sedentary" whereas the Dictionary of Occupational Titles (DOT) classifies the jobs as "light."

I.

We look first to whether the ALJ erred in rejecting the treating physician's opinion that the claimant was disabled. The ALJ may reject the opinion only if she provides clear and convincing reasons that are supported by the record as a whole. Magallanes, 881 F.2d at 751; Cotton, 799 F.2d at 1408. Here she properly found Dr. Hunt's determination conclusory and unsubstantiated by relevant medical documentation.

The ALJ began her opinion by pointing out that the relevant period was limited to the five years between 1981, when claimant first injured her lower back, and 1986, when her disability insurance expired. She then gave specific reasons for rejecting Dr. Hunt's conclusion, contained in an opinion in 1992, that claimant was disabled during the relevant period.

First, the ALJ found that the doctor's retrospective assessment in the letter dated February 12, 1992, was conclusory because it included "no specific...