Unpublished Disposition, 865 F.2d 266 (9th Cir. 1987)

No. 87-2314.

United States Court of Appeals, Ninth Circuit.

Before HUG and KOZINSKI, Circuit Judges, and WILLIAM P. GRAY,^*  Senior District Judge.

MEMORANDUM^** 

William Warner appeals from a grant of summary judgment affirming the decision of the Secretary of Health and Human Services that Warner was not disabled between December 29, 1978, and March 10, 1982. Because the Secretary's determination is not supported by substantial evidence, we reverse.

* Warner filed applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433 (1982 & Supp. IV 1986) and 42 U.S.C. §§ 1381-1394 (1982 & Supp. IV 1986), in January and February 1979 respectively. He claimed to have been disabled since December 29, 1978, due to severed nerves in the left side of his neck. After a series of denials, appeals and remands, Warner was awarded benefits for a period beginning March 11, 1982. Warner appealed, claiming that the Secretary's selection of an onset date was not supported by substantial evidence. The district court granted the Secretary's motion for summary judgment. Warner v. Bowen, No. C-79-2861-SAW (N.D. Cal. May 26, 1987).

We review a grant of summary judgment de novo. Kellar v. Bowen, 848 F.2d 121, 123 (9th Cir. 1988). We thus examine the record to determine if the Secretary's selection of March 11, 1982, as the onset date is supported by substantial evidence. See Villa v. Heckler, 797 F.2d 794, 797 (9th Cir. 1986).

II

Two doctors examined Warner during the period at issue. Dr. Jacob Foster, Warner's treating physician, examined Warner on June 26, 1979. And, at the request of the Social Security Administration, Warner was examined by Dr. Edwin Kingsley on October 14, 1980. The record contains no evidence of any other examinations between December 29, 1978, and March 10, 1982.

Dr. Foster's report discusses Warner's complaints of pain, describes Warner's physical limitations, and concludes: "He just is unable to do any work that goes on for more than two hours at the most." Administrative Transcript [Tr.] 276. Dr. Foster observes that " [t]he patient himself is willing to consider working, if there were some type of job available that would allow him to rest every couple of hours, but, I don't see the feasibility of such a thing." Id.

Dr. Foster last examined Warner on March 11, 1982. He retired from practice in 1984. In 1986, at the suggestion of the District Court in its final remand to the Secretary, Warner v. Heckler, No. C-79-2861-SAW, at 4 (N.D. Cal. Jan. 31, 1986), Warner secured another report from Dr. Foster. Looking back at his records between August 1, 1977, and March 11, 1982, the dates of his first and last examinations of Warner, Dr. Foster concluded:

There is no way that he is able to carry out gainful employment because he cannot stay on his feet for more than 2 hours at any one time without having to lie down. If he stays up longer than that, the pain becomes quite intense and he is unable to continue.

I believe that the claimant is incapable in [sic] carrying out even sedentary work for any prolonged period of time. This patient has been permanently and totally disabled since January of 1979.

Tr. 469. Dr. Foster provides no evidence or opinion contradicting his conclusion that Warner could not work for more than two hours at a time.

Dr. Kingsley examined Warner on October 14, 1980. After reporting the results of the examination, Dr. Kingsley concluded: "At the present time it would be reasonable to restrict him from all overhead work and any activity requiring frequent turning or flexion of the cervical spine. He should avoid lifting greater than 20 lbs. He should avoid activities that require frequent stooping and bending." Tr. 283. Two months later, Dr. Kingsley supplemented his report with the observation that "the restrictions on his sitting tolerance of two hours should be considered maximum times. It is possible his actual tolerance may be less than this and if so his activities should be adjusted accordingly. I suspect he is able to work only a total of 4-5 hours daily at best." Tr. 273. Nothing in Dr. Kingsley's original report or his supplementary report conflicts with this conclusion.

These are the only medical findings relevant to the period at issue. The Administrative Law Judge nevertheless determined that "it cannot be found that the claimant has sustained his burden of proof in establishing an inability to work a full eight hour day at his regular job." Tr. 345. The Appeals Council adopted the opinion of the ALJ, Tr. 333, making it the final decision of the Secretary.

III

The Secretary's decision is unsupported by substantial evidence. Every single item of evidence in the record relating to the period between December 1978 and March 1982 indicates that Warner was unable to work a full eight hour day, even at a sedentary job. Neither the ALJ nor the district court cite any evidence in support of the conclusion that Warner was able to work a full day. A review of the record discloses the reason: no such evidence exists.

Warner thus met his burden of proving an inability to perform his past relevant work, 20 C.F.R. Sec. 404.1520(e) (1988), which, as the ALJ recognized, required that he work a full eight hour day. Tr. 345. The burden accordingly shifted to the Secretary to prove that, given his limitations, Warner could engage in other types of substantial gainful work existing in the national economy. See Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir. 1986) (per curiam). The Secretary has not carried his burden.

We reverse the decision of the district court. The district court should instruct the Secretary to award benefits to Warner for a period dating back to December 29, 1978.

REVERSED.