Unpublished Disposition, 872 F.2d 428 (9th Cir. 1989)

No. 87-4398.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and ALARCON, Circuit Judges, and DICKRAN M. TEVRIZIAN, Jr.,^**  District Judge.

MEMORANDUM^*** 

We decide here whether substantial evidence supports the Secretary's denial of Joy's Social Security disability claim.

BACKGROUND

Joy, a former grocery clerk, last worked regularly in 1976. A brief work attempt in 1980 proved unsuccessful due to strength limitations and an inability to stand for long periods.

She saw her treating physician from 1978-1981 for cervical disk problems; back, neck, and arm pain; face and arm numbness; and tingling in her arm. In 1984, he diagnosed her as having multiple sclerosis.

Joy applied to the Secretary of Health and Human Services in November 1984 for disability benefits, alleging she became disabled by multiple sclerosis on February 15, 1978. She last met insured status requirements on September 30, 1981. The Secretary denied her application, finding she retained the capacity for sedentary work through September 1981. She appeals from a district court order affirming the Secretary.

DISCUSSION

We review for substantial evidence, weighing both the evidence that supports and the evidence that detracts from the Secretary's conclusion. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988).

Joy argues substantial evidence does not support a finding that as of September 30, 1981, she retained the capacity for sedentary work.

To qualify for disability benefits, a claimant must suffer from an impairment so severe that he or she cannot engage in any form of substantial gainful employment. 42 U.S.C. § 423(d) (2) (A) (Supp.1988). Once the claimant demonstrates an inability to do all previous jobs, the burden shifts to the Secretary to show the claimant retains the residual functional capacity to perform sedentary, light, or heavy work. Gamer v. Secretary of Health & Human Serv., 815 F.2d 1275, 1278 (9th Cir. 1987). Residual functional capacity is what the claimant can still do despite his or her limitations. 20 C.F.R. Sec. 404.1545(a) (1988). Sedentary work involves lifting no more than ten pounds and sitting most of the time, with walking or standing required occasionally. Id. at Sec. 404.1567(a) (1988).

Although unable to perform her prior work, Joy retained the capacity to perform sedentary work through September 30, 1981. She testified that she looked after 10 teenagers, did housework, attended college part-time, volunteered two hours per month, and walked as much as a mile. While she complained periodically of memory loss, headaches, blurred vision, and fatigue, her doctor could not identify an objective cause for these symptoms and did not note significant strength limitations.

Joy argues further that the Secretary erred in finding that as of September 1981, she did not meet the multiple sclerosis listings. 20 C.F.R., Part 404, Subpt. P, App. 1, Sec. 11.09 (1988).

The listings authorize benefits for a claimant who suffers from multiple sclerosis with significant reproducible fatigue and substantial muscle weakness on repetitive activity. The fatigue must be demonstrated on physical examination and must result from central nervous system dysfunction. Id. at Sec. 11.09C.

Joy did not meet the multiple sclerosis listings. Although she testified to tiring easily, the medical records do not indicate the presence of reproducible fatigue. Her treating physician attributed her complaints of arm weakness to a cervical disk injury, rather than to central nervous system dysfunction.

Joy also contends the ALJ erred in accepting the opinion of Dr. Aigner, the physician appointed to review her medical history, and in rejecting the conflicting opinion of Dr. Richardson, her treating physician.

An ALJ must give special weight to the medical opinion of a claimant's treating physician. Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988). "If the treating physician's opinion is contradicted by another doctor and the ALJ wishes to disregard the opinion ..., [he] must set forth 'specific, legitimate reasons for doing so that are based on substantial evidence in the record.' " Davis v. Heckler, No. 85-2867, slip op. 1213, 1220 (9th Cir. Feb. 13, 1989) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

The Secretary gave a legitimate and specific reason for rejecting Richardson's conclusion in favor of Aigner's. Aigner concluded, using findings Richardson made prior to September 30, 1981, that Joy had not met the listings. Richardson concluded in 1986, after the Secretary denied Joy's claim, that she had met the listings since 1979. The ALJ rejected this retrospective conclusion because it conflicted with Richardson's earlier diagnoses, which identified a spinal injury as the cause of Joy's symptoms.

Joy contends the ALJ should not have applied the grids because she suffered from nonexertional impairments of pain and fatigue.

After an ALJ decides the claimant's residual functional capacity, the grids are applied to determine whether, considering age, education, and experience, the claimant is disabled. 20 C.F.R., Pt. 404, Subpt. P., App. 2 (1988). When nonexertional limitations restrict significantly the range of work permitted, the ALJ may use the grids only as a guide and must consult a vocational expert. Burkhart, 856 F.2d at 1340. The judge may not disregard subjective evidence of a nonexertional impairment where objective evidence of a medically determinable cause exists. Hammock v. Bowen, No. 87-3089, slip op. 1141, 1148 (9th Cir. Feb. 9, 1989).

Pain is a nonexertional impairment when it does not affect the claimant's strength, but so distracts him or her that work cannot realistically be performed. Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 579 (9th Cir. 1988). While objective evidence indicates Joy suffered from chronic pain syndrome, it does not show an inability to function, and she did not testify that she experienced pain. See Burkhart, 856 F.2d at 1340 (no error where no testimony to reject).

Although Joy did testify to fatigue, objective medical evidence and Joy's testimony regarding the level of activity she maintained during 1979-81 indicate she could have performed sedentary work. The ALJ applied the grids appropriately.

AFFIRMED.