Unpublished Disposition, 914 F.2d 1496 (9th Cir. 1988)

MEMORANDUM^* 

Elsie J. Thomas ("Thomas") appeals the district court's judgment affirming the denial by the Secretary of Health and Human Services of her application for disability benefits. Thomas argues that (1) the administrative law judge ("ALJ") failed to make findings sufficient to reject the opinions of the treating rheumatologists, (2) the ALJ erred in discrediting Thomas's allegations of pain without providing sufficient explanation, and (3) the ALJ erred in determining that Thomas can return to her past relevant work. We have jurisdiction over Thomas's timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

FACTS

Thomas was born in 1932. She is a former produce-packaging worker with a sixth-grade education. She has not worked since November 29, 1978 due to a rheumatological disorder, fibromyositis. Fibromyositis is a syndrome manifested by subjective complaints of aching, soreness or stiffness without any clinically demonstrated impairment.

Thomas filed an application for Title II benefits on April 30, 1979, which was denied. Thomas filed again on August 6, 1982. On October 7, 1983, an ALJ reopened and revised the prior determination and awarded benefits. The appeals council, on review, reversed the ALJ's decision. The appeals council concluded that Thomas was not disabled.

The district court granted summary judgment for the Secretary, however, it subsequently remanded because of Yuckert v. Heckler, 774 F.2d 1365 (9th Cir. 1985), rev'd, 482 U.S. 137 (1987), which invalidated "nonsevere" as a basis for denial in the sequential disability process.

On remand, Thomas submitted additional evidence. A supplemental hearing was held. After a de novo review, the ALJ found that Thomas could perform her past relevant work and was "not disabled." The appeals council adopted the ALJ's decision on February 9, 1988. Thomas then sought review in the district court. On November 28, 1988 the district court entered a judgment granting the Secretary's motion for summary judgment and dismissed Thomas's complaint. Thomas appeals.

ANALYSIS

We review the judgment of the district court de novo. Adams v. Bowen, 872 F.2d 926, 927 (9th Cir.), cert. denied, 110 S. Ct. 151 (1989). The Secretary's denial of benefits may be set aside when the Secretary's findings are "based on legal error or are not supported by substantial evidence in the record as a whole." Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)), but "less than a preponderance." Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consolidated Edison, 305 U.S. at 229). This court must review the record as a whole and consider adverse as well as supporting evidence. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).

B. Opinion of Examining Physician Disregarded

Thomas contends the ALJ improperly rejected the opinions of Drs. Gerber and Baron. However, the ALJ may properly disregard opinions of treating physicians when they are unsupported by clinical findings and are contradicted by opinions of other examining physicians. See Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988); Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). Here, there were no clinical findings that supported Thomas's pain testimony, and several physicians who treated her were of the opinion that she did not suffer from disabling pain. Accordingly, the ALJ did not err in disregarding the opinions of Drs. Gerber and Baron.

Thomas contends the ALJ did not make the required specific findings to justify his decision to discredit her subjective pain testimony.

" [A]n ALJ may disregard a claimant's subjective pain testimony [if it is not] accompanied by evidence of 'a medical condition that could be reasonably be [sic] expected to produce' that pain." Bates v. Sullivan, 894 F.2d 1059, 1072 (9th Cir. 1990) (citations omitted). Here, the ALJ, in his discussion of Thomas's allegations of disabling pain, specifically stated that her "subjective allegations of pain do not result in limitations on testing and this is a legitimate measurement in determining the claimant's capacity for work activity." This statement was based upon the medical reports and opinions of physicians, including physicians who had treated Thomas. The ALJ also found that Thomas's "allegations of pain of [sic] limitations were not credible based upon the record as set forth in the body of this decision." These findings, when coupled with the ALJ's specific discussion of evidence in the record which contradicted Thomas's subjective pain testimony, support the ALJ's rejection of that testimony. See id.

Thomas argues that the ALJ erred in determining that she can return to her past relevant work. She contends that she established a prima facie case of disability. The ALJ found, however, that Thomas had not established that she is "disabled" according to the provisions of the Social Security Administration regulations. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). There is substantial evidence which supports this finding. Accordingly, the ALJ did not err in finding that she can return to her past relevant work.

CONCLUSION

The judgment of the district court affirming the Secretary's denial of Thomas's application for disability benefits is AFFIRMED.