Lombardo v. Schweiker, 83-5673

• Citation: 749 F.2d 565
• Decision Date: 11 December 1984
• Docket Number: No. 83-5673,83-5673
• Parties: , Unempl.Ins.Rep. CCH 15,674 Guiseppe LOMBARDO, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 565

749 F.2d 565

8 Soc.Sec.Rep.Ser. 55, Unempl.Ins.Rep. CCH 15,674

Guiseppe LOMBARDO, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 83-5673.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1984.

Decided Dec. 11, 1984.

John P. Blumberg, Law Offices of Myron Blumberg, Long Beach, Cal., for plaintiff-appellant.

Gary Floerchinger, Asst. Regional Atty., Dept. of Health & Human Services, San Francisco, Cal., for defendant-appellee.

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

Before CHOY and SKOPIL, Circuit Judges, and PRICE ^*, District Judge.

PER CURIAM:

Appellant Guiseppe Lombardo applied for Social Security benefits alleging disability as of October 1973 due to neck and back ailments. An administrative law judge (ALJ) found that Lombardo was entitled to disability benefits for the period from October 1973 to October 1974. After Lombardo requested a review, the Appeals Council vacated the decision and remanded the case.

On remand, another ALJ found that Lombardo was not entitled to disability benefits prior to September 30, 1976, the expiration date of his insured status. The ALJ concluded that Lombardo retained the residual functional capacity to engage in sedentary or light work. This became the final decision of the Secretary of Health and Human Services (Secretary) when the Appeals Council denied Lombardo's request for a review. Lombardo petitioned for judicial review, and the United States District Court for the Central District of California, adopting a magistrate's recommendation, granted the Secretary's motion for summary judgment. We affirm.

This court's scope of review is limited to whether substantial evidence supports the Secretary's decision. See Kornock v. Harris, 648 F.2d 525, 526 (9th Cir.1980). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). If the evidence is susceptible of more than one rational interpretation, this court must uphold the Secretary's decision. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982).

In this case, the Secretary's findings of fact are supported by substantial evidence and must be affirmed. See Kornock v. Harris, 648 F.2d at 526; 42 U.S.C. Sec. 405(g) (1982). The ALJ relied principally on the opinion of Dr. Cohen, who concluded that Lombardo's physical condition did not preclude him from working. Dr. Cohen's report was consistent with the findings of other examining physicians.

Lombardo argues that the ALJ erred in giving "little or no weight" to the testimony of the treating and family physician, Dr. Tavoularis, who concluded that Lombardo should not return to work. The ALJ, however, was not required to give Dr. Tavoularis' opinion conclusive effect even though he was the treating and family physician. See Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 601 (9th Cir.1984); 20 C.F.R. Sec. 404.1527 (1983); see also Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir.1975) ("The medical opinion of specialists may be entitled to greater weight than that of general practioners.").

Lombardo next argues that the ALJ was required to give clear and convincing reasons for rejecting Dr. Tavoularis' opinion.

See Maounis v. Heckler, 738 F.2d 1032 (9th Cir.1984); Coats v. Heckler, 733 F.2d 1338 (9th Cir.1984). We need not decide, however, the issue of whether an ALJ must give clear and convincing reasons for rejecting a treating physician's testimony that is contradicted by other medical evidence. After an examination of the administrative record, we conclude that the ALJ here did set forth clear and convincing reasons for rejecting Dr. Tavoularis' testimony.

In the ALJ's detailed evaluation of the medical evidence, he noted that Dr. Tavoularis initially suspected a herniating disc at C5-6. The ALJ, however, rejected Dr. Tavoularis' observation, stating:

[R]eview of rather complete orthopedic and neurological evaluation by Dr. Koch in February 1979 (Ex. 45) establishes that while there was some spurring at C3-4, C4-5, and C5-6, there was no major neurologic abnormality such as disc herniation or nerve root compression but that the claimant had 'sustained significant sprain and strain injury on September 15, 1973. The objective medical evidence thus fails to establish severe impairment capable of causing symptoms or limitations that would preclude either semi-sedentary or light work for any period approaching one year.

Admin. Rec. at 23. The...