Unpublished Disposition, 908 F.2d 976 (9th Cir. 1989)

No. 89-15913.

United States Court of Appeals, Ninth Circuit.

Before ALARCON, POOLE, Circuit Judges, and TERRY J. HATTER,^**  District Judge.

MEMORANDUM^*** 

OVERVIEW

Plaintiff/Appellant, Jaques C. Flores, appeals pro se from the district court's grant of summary judgment in favor of the Secretary of Health and Human Services. The district court found that the Secretary's denial of disability benefits, pursuant to the Social Security Act, 42 U.S.C. § 423, was supported by substantial evidence. Furthermore, the court found that the new evidence tendered by Flores did not warrant remand.

FACTS AND PROCEEDINGS BELOW

Jaques Flores ("Flores"), born in 1925, completed high school and received an Associate Arts degree from a Junior College. In addition, he attended the Los Angeles Sheriff's Academy in 1955 and the U.S. Marshall's Academy in 1971. Flores has worked as a law enforcement officer, car salesman, a cab driver and a telephone operator for a cab company.

On August 25, 1985, after driving a cab with a broken seat, Flores sustained a lower back injury while lifting luggage. He saw a number of doctors regarding this problem.

In September of 1986, Flores returned to work for the cab company as a telephone operator and was employed in this capacity until January 22, 1987, when he was terminated due to his hearing difficulties. He has not been employed since. However, Flores testified that he is capable of driving, grocery shopping, cooking, doing laundry, and walking 1/3 of a mile. Furthermore, in 1987 he began attending classes to become a paralegal.

On February 23, 1987, Flores filed an application with the Secretary of Health and Human Services (the "Secretary") for disability benefits pursuant to the Social Security Act, 42 U.S.C. § 423. In his application Flores alleged his back injury and hearing difficulty rendered him unable to work.

Flores requested an administrative hearing following denial of his application. On October 9, 1987, an administrative law judge ("ALJ") rendered a decision denying Flores' application. The ALJ found the following: (1) appellant had the residual functional capacity to perform medium-level work, (2) he did not have a degree of documented hearing loss which significantly interfered with ordinary communication and, (3) he had the capacity to perform his past work as a telephone operator for a cab company. The Appeals council denied a request to review the ALJ's decision and the Secretary affirmed the ALJ's.

Having exhausted his administrative remedies, Flores then filed for judicial review in the district court of Nevada, under 42 U.S.C. § 405(g). On June 12, 1989, the district court granted summary judgment on the Secretary's cross claim. The court summarily concluded that substantial evidence supported the ALJ's decision and that the decision was free from error.

The heart of the district court's opinion discussed whether new evidence warranted remand. The district court found the new evidence did not warrant remand citing immateriality and no good cause.

DISCUSSION

The granting of a summary judgement is reviewed de novo. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); State Farm Fire and Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). However, this court's scope of review of disability determinations is limited: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C. 405(g); Copeland v. Bowen, 861 F.2d 563, 538 (9th Cir. 1988). In determining whether the Secretary's findings are supported by substantial evidence, this court reviews the record as a whole weighing both the evidence which supports and detracts from the Secretary's conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). Where evidence is susceptible to more than one rational interpretation, the ALJ's conclusions must be upheld. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

Flores, argues that the ALJ's findings are not supported by substantial evidence. He advances four arguments. Flores claims (1) the ALJ's decision that claimant is capable of medium-level work lacked substantial evidence; (2) the ALJ erred in finding claimant has the residual functional capacity to continue his job as a phone operator; (3) the ALJ did not fully consider pain testimony; and (4) the ALJ erred in applying medical vocational guidelines ("grids"). In the alternative, Flores seeks a remand for consideration of new evidence.

A. Substantial evidence to support a finding of medium work

Flores contends that substantial evidence is lacking to support the ALJ's conclusion that claimant has the capacity to perform medium-level work. He asserts the ALJ, in determining his capabilities, relied solely on a release from Nevada State Industrial Insurance System while disregarding a report from Dr. Mackey.

As a general rule, the medical opinions and conclusions of a treating physician are accorded special weight. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). If conflicting medical opinions exist, the ALJ must set forth specific, legitimate reasons based on evidence in the record for disregarding the treating physician's opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).

The ALJ meets this burden here. He states:

Dr. Mackey's assessment ... has been specifically rejected as inconsistent with the detailed findings and assessments [of the rehabilitation center.] ... With respect to the claimant's hearing loss, ... the specialized report ... was found to be deficient ...

Thus, we affirm the ALJ's finding that claimant is capable of medium-level work.

B. Residual functional capacityFlores also claims that the ALJ erred in determining his residual functional capacity.¹  This court has held that to determine residual functional capacity the Secretary must ascertain the demands of claimant's former work and then compare that demand with his present capacity. Villa v. Heckler, 797 F.2d 794, 797-798 (9th Cir. 1986). The ALJ made such comparison. The ALJ questioned claimant regarding the demands of his job as a telephone operator and concluded that claimant's capacity allowed him still to perform his former job as a telephone operator.

Flores claims the ALJ improperly disregarded pain testimony in determining whether claimant could receive benefits. As a general rule, where a claimant submits objective medical findings establishing an impairment that would normally produce a certain amount of pain, but claimant testifies that he experiences pain at a higher level, the Secretary is free to disbelieve that testimony. The Secretary must, however, make a specific and justifiable finding that the claimant's testimony is not credible. E.g., Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).

In the present case, the ALJ made a specific and justifiable finding. The ALJ explained that because claimant was released from a rehabilitation center to medium-level work, did not have a hearing loss to support the alleged symptoms, and was able to attend paralegal school, his testimony was incredible. Accordingly, we uphold the ALJ's findings.

In disability cases, the claimant bears the initial burden of establishing his disability by demonstrating that he cannot return to his former job or former type of employment. The burden then shifts to the Secretary to show that claimant can perform other types of work in the national economy. The Secretary can satisfy this burden either by (1) applying medical vocational guidelines, "grids," or (2) taking testimony of vocational experts. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988).

Flores alleges the ALJ erred in applying grids. However, whether the ALJ applied grids correctly is not relevant to this case. The ALJ did not need to apply grids or receive testimony from vocational experts because claimant failed to meet his initial burden of establishing a prima facie case of disability. The ALJ found claimant capable of medium-level physical activity. He was not found to have a documented degree of hearing loss which would tend to rule out a return to his past relevant work as a telephone operator. Thus, the ALJ's decision must be upheld.² 

Flores contends that this case should be remanded to the Secretary for consideration of new evidence under 42 U.S.C. § 405(g). The new evidence consists of, (1) a report entitled, "Physical Demands and Environmental Conditions," as established by the Department of Labor; (2) the "Decision and Order" of the Nevada Department of Administration Appeals Officer dated March 14, 1988; (3) a letter from Dr. George Mean Hemmeter, dated July 27, 1988 regarding his examination of Flores on June 24, 1988; (4) Flores' hearing test results dated October 31, 1986; and (5) a letter from David F. Hendricks, Labor Relations Consultant, dated February 17, 1987, regarding Flores' hearing problem.

In order to remand the court must find there is: (1) new evidence that is material, and (2) good cause for the claimant's failure to incorporate the evidence in a prior proceeding. 42 U.S.C. § 405(g); Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511 (9th Cir. 1987).

Claimant submits the first item, the report on guidelines established by the Department of Labor, apparently to show the term "medium work" as defined in the report is different from "medium work" as used in 20 C.F.R. Sec. 404.1567.

Evidence is material if there is a reasonable possibility that such evidence would have changed the outcome of the case. Booz v. Secretary of Human Health and Services, 734 F.2d 1378, 1381 (9th Cir. 1984). Here, the evidence would not change the outcome of the case. The definition of medium work relied upon by the ALJ, 20 C.F.R. Sec. 404.1567, is synonymous with the definition of medium work in the new evidence presented by claimant. Remanding for consideration of this evidence would not change the outcome of this case. Thus, the evidence is immaterial.

Appellant claims this second item offered to the court, the decision of the Nevada Department of Administration Appeals, was a decisive factor in the ALJ's findings and therefore, must be considered by this court.

20 C.F.R. Sec. 404.1504 explains that, "a determination by another agency that you are disabled ... is not binding on [the ALJ]." 20 C.F.R. Sec. 404.1504. Thus, the decision of the Nevada Department of Administration Appeals does not warrant remand.

The third item, a letter from Dr. Hemmeter from July 1988, indicates that Flores suffers from a hearing problem. Claimant argues that this new evidence merits remand because it substantiates a report which the ALJ considered. However, to show good cause, one must establish that he could not have obtained the evidence at the time of the administrative proceeding. Cotton v. Bowen, 799 F.2d 1403, 1409 (9th Cir. 1986). Here, claimant presents no reason why he could not have obtained the evidence at the time of the administrative hearing. Claimant knew of his hearing loss at the time of the administrative hearing and offered evidence to this effect. Thus, the letter from Dr. Hemmeter does not warrant remand.

Regarding the fourth and fifth items, hearing discrimination scores, Flores argues the evidence dictates remand because the good cause requirement is met. Flores contends his counsel was negligent in submitting the evidence.

The good cause requirement is satisfied if, "new information surfaces after the Secretary's final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). As noted by the district court, this evidence did not surface after the ALJ's final decision but before. Thus, we have no reason to consider claimant's allegation of attorney misrepresentation.

We affirm the district court's decision finding the new evidence offered by Flores does not warrant remand.

AFFIRMED.