Unpublished Disposition, 841 F.2d 1128 (9th Cir. 1987)

MEMORANDUM^* 

Appellant Conyers is a 54-year-old male, whose past relevant work experience was as a self-employed auto tools salesman. Conyers applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., on March 27, 1985. He alleged in his application for benefits that he had been disabled since July 19, 1984 due to cancer in the right arm and muscle deterioration.

Appellant's cancer, which was diagnosed as Hodgkin's disease required surgery for removal of a lymphoma in the right arm in 1971 with radiation therapy thereafter. In July 1982 appellant underwent surgery for excision of nodules and adhesions of DeQuervain's of the left wrist which was performed by Dr. Paul Goddard. In January 1984 Conyers had surgery to repair ruptured right knee ligaments caused by a skiing injury. This surgery was also performed by Dr. Goddard. Dr. Goddard later noted that appellant's recovery from the knee injury and surgery had proceeded smoothly and that his knee was "very stable" with a full range of motion and no area of real pain. On June 14, 1984 Goddard indicated that Conyers' knee was getting stronger but that he had some weakness and loss of sensation in his right hand. On that date Goddard stated that " [a]ll and all he has reached a point where he had to give up working and go on Social Security ... His disability is primarily due to his instability and lymphoma."

A month later Conyers stopped working. In March, 1985 he applied for disability and six months later in September 1985 Dr. Goddard concluded that appellant was disabled as a result of three medical problems: first, his history of lymphoma, radiation therapy and the development of neurological deficits secondary to the tumor and radiation; second, an unstable left knee as a result of the skiing accident, with resulting difficulty in ambulation; and third, progressive inflammatory disease in his joints and tendons and a flare-up of arthritis in the hands, with trigger fingers, ganglions, DeQuervain's disease, tennis elbow, subdeltoid bursitis and arthritis in various parts of his body on a progressive basis.

The administrative hearing on Conyers' claim was held on November 20, 1985 before Administrative Law Judge Alvin G. Cohen. At that hearing appellant testified that he could not return to his work because he could not longer hold a pen to write. He testified that his job required extensive writing and the preparation of accurate written contracts. It was because of the contract writing required and problems lifting with the arms that appellant decided to retire.

Appellant also testified that he had problems with his left elbow and indicated he had had two operations on his left thumb. However, appellant indicated that his knee was now "fine" and that he had no problem with it.

A vocational expert, who was also certified as a rehabilitation counselor testified that through appellant may not have been able to perform his tool sales job, there was a substantial number of jobs which could accommodate appellant's limitations.

On December 24, 1985 ALJ Cohen rendered his decision finding that appellant had "the residual functional capacity to perform the physical exertion and non-exertional requirements of work except for heavy lifting and a substantial amount of writing." ALJ Cohen also found that appellant had "acquired work skills, such as knowledge of sales and knowledge of tools which he demonstrated in past work and which considering his residual functional capacity can be applied to meet the requirement of semi-skilled sales work functions of other work." Judge Cohen cited as examples of jobs appellant could perform: security guard, retail sales work and doorman or lobby guard. The ALJ concluded that appellant was not disabled. On April 10, 1986, Judge Cohen's decision became the final decision of the Secretary of Health and Human Services. When the Appeals Council declined appellant's request for review of that decision, appellant instituted an action in the United States District Court for the Northern District of California pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the Secretary's final decision. On March 16, 1987, the district court granted the government's motion for summary judgment and ordered that judgment be entered in favor of the government and against appellant.

Appellant contends that the ALJ's decision that the appellant was not disabled is not supported by substantial evidence. The role of a court in reviewing the Secretary's decision is a limited one. We are not to set aside the Secretary's denial of benefits unless the Secretary's findings are based upon legal error or are not supported by substantial evidence in the record as a whole. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). "Substantial evidence" means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971), but "less than a preponderance." Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). Substantial evidence also means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401; Taylor, 765 F.2d at 875. Where the medial evidence is inconclusive, "questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Courts should not engage in "second-guessing" such credibility determinations, nor should they impose "burdensome procedural requirements that facilitate such second guessing." Allen, 749 F.2d at 580.

We conclude, as did the district court, in granting the government's motion for summary judgment, that there is substantial relevant medical evidence to support the Secretary's conclusion that appellant could do light to medium work activity and thus was not disabled. We also agree that appellant's ability to travel with a ski club, to drive, to engage in fishing aboard a friend's boat and to care for his mother, support the Secretary's conclusion that appellant is able to engage in substantial gainful work.

The opinion of any doctor that a claimant is disabled or unable to work is not conclusive of the ultimate fact of disability. 20 C.F.R. Sec. 404.1527 (1986). Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). In fact, a treating physician's opinion can be disregarded if the ALJ makes "findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).

The ALJ's conclusion that appellant was precluded from his past relevant work but was not totally disabled was entirely consistent with the opinion of Dr. Saylo Munemitsu of April 12, 1985. Furthermore, the ALJ was correct in discounting, if not disregarding, the statement of disability by Dr. Walter Deacon because that statement was not consistent with the activities engaged in by appellant as described by appellant. Dr. Deacon was more than likely unaware of appellant's activities when he concluded appellant was disabled. There was substantial evidence in the record before the ALJ to justify discounting those two doctors' opinions.

Appellant has maintained throughout this case that his purported disability was due to persistent symptoms of pain. While there must be objective medical evidence of some condition that could reasonable produce appellant's pain, there need not be objective evidence of the pain itself. Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986); Nyman v. Heckler, 779 F.2d 528 (9th Cir. 1985).

Questions of credibility, though, concerning the existence of appellant's pain are for the Secretary alone to resolve. Sample, 694 F.2d at 642. An ALJ's credibility assessment should be given great weight. Nyman, 779 F.2d at 531. We find that the lack of need for painkilling medication and the lack of regular medical care, when coupled with appellant's activities and the deference due an ALJ's credibility assessment compel us to affirm that assessment.

We also conclude that the ALJ's hypothetical questions to the vocational expert properly reflected appellant's impairment to the degree the ALJ found them credible. The ALJ was not obligated to include in his hypothetical questions the subjective allegations of disabling pain which he did not find credible. Based upon his evaluation of the evidence, the ALJ was free to accept or reject the restrictions purportedly caused by the pain; he was not bound to include them in his hypothetical questions simply because appellant alleged that he was so restricted. Martinez v. Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986).

Finally, appellant contends that the ALJ improperly applied the Medical-Vocational Guidelines because appellant suffers from non-exertional impairments. We reject that contention. The existence of non-exertional impairments does not preclude the use of Medical-Vocational Guidelines. Blacknall v. Heckler, 721 F.2d 1179, 1180-81 (9th Cir. 1983); 20 C.F.R.App. Sec. 200.00(e) (2) (1986). Furthermore, the use of the guidelines by the ALJ was consistent with the testimony of the vocational expert.

WE AFFIRM.