Unpublished Disposition, 872 F.2d 429 (9th Cir. 1988)

MEMORANDUM^** 

Cora Manor seeks disabled widow's benefits under the Social Security Act. She appeals the district court's order granting summary judgment in favor of the Secretary of Health and Human Services. Manor contends that the district court erred in concluding that she had failed to sustain her burden of proving entitlement to benefits.

BACKGROUND

Cora L. Manor filed an application for widow's disability benefits under Title II of the Social Security Act, 42 U.S.C. § 402(e) (1), on October 18, 1984. She was then 50 years old. Based on the medical evidence, the Secretary found that Manor suffered from "cervical and left shoulder sprain/strain, spontaneous left pneumothorax times two (1980 and 1983), and status post tube thoracostomies (1980 and 1983), left thoracostomy (1983) and bleb resection (1983)." The Secretary concluded, however, that Manor was not disabled because she did not have "any impairment or combination of impairments which is medically equivalent to an impairment listed in Appendix 1 (20 C.F.R. 404.1526)."¹ 

Following an administrative hearing, the Administrative Law Judge ("ALJ") denied benefits on January 8, 1986. In his decision, the ALJ referred to the testimony of Dr. Miller, an orthopedic specialist, who treated Manor from 1978 to 1984 for recurring back, shoulder, and neck pain caused by acute cervical strain and a sprained left shoulder. Dr. Miller's reports show that he repeatedly found Manor to be disabled indefinitely and that on September 6, 1984, he found that she was "unable to engage in her normal activities. She is totally disabled for an indefinite period of time." In addition, on November 9, 1984, Dr. Miller indicated that he believed Manor to be "unable to engage in any occupational activities for an indefinite period of time."

In his decision, the ALJ also referred to the medical reports of doctors Patterson and Biscoe. Dr. Patterson treated Manor during the period of 1980 to late 1984 for lung conditions which twice required hospitalization and surgery. Upon discharge from her second hospitalization in October 1983, the hospital records reflected that Manor had no limitation of diet or activity and that her condition on discharge was markedly improved. Dr. Patterson reported follow-up care of Manor through October 1984 for complaints of shortness of breath and chest wall pain.

Dr. Biscoe, an internist, examined Manor once on December 6, 1984. The ALJ stated that Dr. Biscoe had found that Manor's neck was supple, her lungs were clear, her heart tones were of good quality, there was no evidence of motor weakness or muscle atrophy, and there was a full range of motion in the upper extremities.²  The ALJ did not mention that Dr. Biscoe also found, based on his examination, that Manor would continue to have orthopedic problems requiring appropriate management and treatment and that Manor should avoid those activities that cause or aggravate back, neck or shoulder pain. With respect to chest pain, Dr. Biscoe stated that Manor would continue to have the lung problems "on a lifelong basis" and that she should avoid those activities that cause or aggravate chest pain or shortness of breath.

In his decision, the ALJ stated that the entire record had been reviewed by two physicians designated by the Secretary, who provided the opinion that Manor's impairments, neither singly nor in combination, met or equaled the severity requirements of the Appendix 1 Medical Listings. The ALJ also stated in his decision that he found the opinions of the two reviewing physicians persuasive and probative on the issue of severity under the medical listings. The ALJ then concluded that Manor was not disabled for purposes of obtaining widow's benefits.

The Appeals Council denied review of the ALJ's decision on April 15, 1986. Manor then filed a complaint with the district court under 42 U.S.C. § 405(g). Based on the recommendation of a United States Magistrate, the district court granted summary judgment in favor of the Secretary on April 16, 1987.

DISCUSSION

The Secretary initially contends that this court does not have jurisdiction to hear Manor's appeal. The magistrate notified the parties on December 23, 1986 that failure to file written objections to his Report and Recommendation would result in a "waiver of any appeal." The Secretary argues that Manor waived her right to appeal the district court's judgment because she failed to file objections to the magistrates's recommendations. In support of this contention, the Secretary cites to Greenhow v. Secretary of HHS, 848 F.2d 963, 965-67 (9th Cir. 1988), withdrawn. On December 5, 1988, Greenhow was amended and republished on denial of rehearing. 863 F.2d 633 (9th Cir. 1988). In the amended opinion, the panel held that, due to the unsettled state of the law in this circuit, "failure to object to the magistrate's recommended conclusions of law does not constitute a waiver of those claims on appeal." Id. at 636.

Manor's appeal challenges the magistrate's conclusions of law, specifically the finding that the Secretary's decision to deny benefits was supported by substantial evidence. Therefore, based on the holding in Greenhow, Manor's failure to object to the magistrate's recommendations does not preclude our review of her claims.

We have jurisdiction to hear Manor's timely appeal under 28 U.S.C. § 1291.

"The Secretary's findings are reviewable as to whether they are supported by substantial evidence and as to whether the Secretary used proper legal standards. 42 U.S.C. § 405(g)." Swanson v. Secretary of HHS, 763 F.2d 1061, 1064 (9th Cir. 1985); Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987). We review de novo the district court's legal conclusion that the Secretary's decision was supported by substantial evidence. Greenhow, 863 F.2d at 636; Brawner v. Secretary of HHS, 839 F.2d 432, 433 (9th Cir. 1988) (per curiam).

It is a well established rule that if an "ALJ wishes to disregard the opinion of the treating physician, he or she must make 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); Swanson, 763 F.2d at 1064. The rationale for giving greater weight to the opinion of a treating physician as opposed to an examining physician is that the treating physician has been employed to cure, not merely to examine and report on a person's medical condition. The treating physician thus has a greater opportunity to know and observe the patient as an individual in the context of the patient/physician relationship. Sprague, 812 F.2d, at 1230. But see Allen v. Heckler, 749 F.2d 577, 579-80 (9th Cir. 1984) (articulating a narrow exception to the rule stated in Murray; where there is a conflict between the findings of the treating and non-treating physicians, and the non-treating physician's opinion is based on a thorough examination and objective clinical tests, findings by the ALJ that the plaintiff is not disabled will be considered supported by substantial evidence).

Here, the ALJ merely recited the findings and conclusions of Dr. Miller, the treating orthopedic physician. The ALJ failed to set forth "specific, legitimate reasons" based on "substantial evidence in the record" for disregarding Dr. Miller's opinion that Manor is totally disabled. Murray, 722 F.2d at 502. In fact, the ALJ failed to set forth any reason at all for doing so. Furthermore, the exception articulated in Allen is not applicable here even though Dr. Biscoe, who examined Manor only once, conducted a thorough examination. Dr. Biscoe found that Manor had several serious health problems. It is not clear that his opinion would significantly contradict the opinion of Dr. Miller that Manor is totally disabled, especially when all of Manor's health problems are taken into account. It appears from the record that Dr. Biscoe did not reach any ultimate conclusion as to whether Manor was able to engage in any gainful activity and that the ALJ relied heavily on the conclusions of the reviewing physicians in finding that Manor was not disabled. For these reasons, the narrow exception discussed in Allen does not apply in this case.

We therefore reverse and remand this case to the district court with directions to remand the case to the Secretary to determine whether there are specific, legitimate reasons for rejecting the opinion of Manor's treating physician that Manor is totally disabled and, if there are, to articulate them in appropriate findings of fact.³ 

REVERSED AND REMANDED.