Matney on Behalf of Matney v. Sullivan

• Decision Date: 16 December 1992
• Docket Number: No. 91-35164,91-35164
• Citation: 981 F.2d 1016
• Parties: , Unempl.Ins.Rep. (CCH) P 17128A Tambra L. MATNEY, on behalf of Brent V. MATNEY, deceased, * Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1016

981 F.2d 1016

39 Soc.Sec.Rep.Ser. 588, Unempl.Ins.Rep. (CCH) P 17128A

Tambra L. MATNEY, on behalf of Brent V. MATNEY, deceased, ^* Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 91-35164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1992.

Memorandum June 12, 1992.

Order and Opinion Dec. 16, 1992.

Ralph Wilborn, Eugene, OR, for plaintiff-appellant.

Kathryn A. Warma, Asst. Regional Counsel, Seattle, WA, for defendant-appellee.

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

Before: WALLACE, Chief Judge, GOODWIN, Circuit Judge and CROCKER, ^** Senior District Judge.

ORDER

The memorandum disposition filed June 12, 1992, 967 F.2d 588, is redesignated as an authored opinion by Judge Crocker.

OPINION

CROCKER, Senior District Judge:

Appellant, Brent V. Matney, appeals the order of the District Court affirming the final decision of the Secretary of Health and Human Services (Secretary) denying disability and Supplemental Security Income (SSI) benefits. The district court found that there was substantial evidence on the record to support the ALJ's finding that Mr. Matney was not disabled and not entitled to disability benefits or SSI. Mr Matney raises a number of arguments challenging the ALJ's decision. The primary contentions are that the ALJ erred by disregarding the opinion of his treating physicians, and in finding that he could perform his past relevant work as a telephone sales representative. For the reasons stated below, we affirm.

STANDARD OF REVIEW

The Court of Appeals considers the district court's decision but must make a full review of the facts and an independent determination of the Secretary's findings. Stone v. Heckler, 761 F.2d 530, 531 (9th Cir.1985). However, the scope of review of the ALJ's denial of benefits is limited. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984). The findings of the Secretary are conclusive [42 U.S.C. § 405(g) ], and the decision of the Secretary to deny benefits will be overturned only if it is not supported by substantial evidence or it is based on legal error. Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir.1990). 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). In evaluating the evidence, the reviewing court must look at the record as a whole, weighing both the evidence that supports and detracts from the Secretary's conclusion. Gonzalez, 914 F.2d at 1200. The trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. Richardson, 402 U.S. at 400, 91 S.Ct. at 1426-27; Allen, 749 F.2d at 579.

DISCUSSION

The Social Security Act sets out a five-step sequential process for determination of a disability. If it can be determined that a claimant is disabled or not disabled at any point in the review, that finding is made, and the review is ended. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290-91, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1520(a)-(e), 416.920(a)-(e). Matney now argues that error occurred at step 4 of the analysis when the ALJ determined that Matney could still perform his past relevant work as a telephone sales representative. He argues that the ALJ misapplied certain regulations and Social Security Rulings, and that proper application of these regulations and rulings requires a finding that his previous work as a telephone sales representative was not substantial gainful activity (SGA).

The record reveals that this issue was not raised before the ALJ or the district court. Because this issue was not raised below, we decline to hear it for the first time on appeal. Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985); Abex Corp. v. Ski's Enterprises, Inc., 748 F.2d 513, 516 (9th Cir.1984).

Matney next contends that the ALJ erred in rejecting the opinion of his treating physicians, Dr. Lafrance and Dr. Cookson, and in relying on the opinion of Dr. Wheeler. When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict. Allen v. Heckler, 749 F.2d at 579. Greater weight is given to the treating physician's opinion; however, that opinion is not necessarily conclusive of a physical condition or the ultimate issue of disability. The ALJ need not accept an opinion of a physician--even a treating physician--if it is conclusionary and brief and is unsupported by clinical findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). Where conflicting medical opinions exist, the ALJ must give specific, legitimate reasons for disregarding the opinion of the treating physician. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).

Our review of the record here convinces us that the ALJ properly analyzed the evidence and gave specific and legitimate reasons for not accepting the opinions of Dr. Lafrance and Dr. Cookson. The clinical findings of the three physicians who examined Matney are essentially the same, revealing no significant motor loss, muscle weakness or sensory or reflex loss, with the exception of loss of the right achilles reflex. The ALJ stated that Matney had established he experienced some degree of pain and discomfort, however, he agreed with the opinion of Dr. Wheeler that Matney was capable of performing light work with certain limitations.

Dr. Lafrance did not state that Matney was unable to perform all work activities. Instead, he indicated that Matney would not be able to return to the heavy labor he previously performed, and would be unable to do most, if not all "regular" jobs. There is no guidance in the record as to what jobs Dr. Lafrance would consider as "regular" jobs, or what level of exertional activity would be involved in such jobs. He first stated that he considered Matney markedly limited with respect to lifting, twisting, etc., and later stated that Matney had a moderate level of disability relative to lifting. The limitations set out by Dr. Lafrance do not necessarily rule out light or sedentary jobs. Insofar as the ALJ rejected the...