Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1991)

MEMORANDUM^*** 

Ruby Vinson appeals the denial of her application for disability benefits.

* An administrative law judge ("ALJ") denied disability benefits based on the testimony of Vinson and that of three physicians: Dr. Dann, Vinson's family doctor; Dr. Varma, a physician appointed by the Secretary; and Dr. Jones, a vocational expert. Vinson testified that she suffered from numerous impairments which prevented her from returning to work as a cook, and that she could not stand or walk for long periods. Dr. Dann testified that Vinson indeed was disabled, and supported Vinson's claim that she could not stand or walk for long periods.

Dr. Varma, however, opined that Vinson's major medical limitation was obesity, which prevented her from bending, lifting heavy weights, or carrying weights up and down. Dr. Varma noted that Vinson's hypertension was under "fair control"; he could not explain Vinson's alleged shortness of breath. Dr. Jones testified that someone with Vinson's vocational characteristics and skills could perform numerous light cooking jobs, including grill cook and sandwich cook, and certain sedentary jobs, such as food wrapper and sandwich maker.

Having heard this testimony, the ALJ concluded that Vinson could perform her past relevant work as cook, although she could not perform jobs requiring heavy lifting. The Appeals Council adopted the ALJ's recommended decision and denied disability benefits. Vinson then filed suit in the district court. The district court denied Vinson's motion for summary judgment but granted the Secretary's cross-motion for summary judgment. We review the district court's summary judgment ruling de novo. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985).

II

The Secretary's denial of benefits will be affirmed if it is based on proper legal standards and if it is supported by substantial evidence. Villa v. Heckler, 797 F.2d 794, 796 (9th Cir. 1986). The claimant bears the initial burden of establishing disability by showing that a physical or mental impairment prevents her from engaging in substantial gainful activity. Id. She must prove inability to return to her former type of work and not just to her former job. Id. at 798 (emphasis in original).

We agree with the district court that Vinson did not meet her burden of proving that she could not return to her former work as cook. Although the testimony presented by Vinson and Dr. Dann may have raised some doubts concerning Vinson's ability to perform certain light jobs,¹  there was substantial evidence that Vinson could do at least the sedentary jobs²  identified by Dr. Jones. Dr. Varma found that Vinson's blood pressure was normal, Vinson demonstrated a full range of motion of all joints, the neurological examination and the electrocardiogram were normal, and x-rays showed no evidence of lung lesions or respiratory impairment. All of these findings constitute substantial evidence to support the Secretary's decision.

III

Vinson's argument that the ALJ applied the wrong legal standard is also without merit. According to Vinson, the ALJ relied on the Medical Vocational Guidelines ("Guidelines") to determine that Vinson was not disabled. See 20 C.F.R. Sec. 404, subpart P, app. 2. Vinson argues that the Guidelines were improperly applied because when nonexertional, environmental limitations are involved, the Guidelines "are 'not fully applicable' and are at best a 'framework for reaching a decision.' " Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). Vinson asserts that she falls outside of the Guidelines because of her mental impairment, among other things.

The argument fails for two reasons. First, there is no substantial evidence in the record to indicate that Vinson is mentally impaired. Second, the ALJ apparently did not rely on the Guidelines to determine disability. The Guidelines apply when an individual cannot perform her past relevant work. 20 C.F.R. Sec. 404, subpart P, app. 2 Sec. 200.00(a). The ALJ found that Vinson could perform her past relevant work and thus did not rely on the Guidelines.

IV

Vinson next contends that the ALJ erred by not setting forth specific legitimate reasons for disregarding her treating doctor's opinion that Vinson was disabled. This contention is valid.

A treating physician's opinion is given special weight. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). However, a statement by a physician that a claimant is disabled is not binding on the Secretary. 20 C.F.R. Sec. 404.1527. If an ALJ chooses to disregard a treating physician's opinion, he must set forth specific, legitimate reasons for doing so. Embrey, 849 F.2d at 421; see also Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990). Recital of a detailed and thorough summary of the facts and conflicting clinical evidence, together with the ALJ's interpretation and findings are required. 849 F.2d at 421.

In Embrey, this court held that an ALJ's finding is not specific enough when it provides that " [t]he opinions of total disability tended [sic] in the record are unsupported by sufficient objective findings and contrary to the preponderant conclusions mandated by those objective findings." Id. at 422. Similarly, in Salvador the ALJ summarized the treating physician's findings and conclusions and implicitly rejected them, but failed to make "any specific reference" as to why he disagreed. 917 F.2d at 15.

Here, the ALJ found that Dr. Dann's opinion that Vinson was disabled was not "consistent with the established severity of Vinson's impairments." Although the ALJ properly summarized the medical evidence and outlined the conflicting opinions of Dr. Dann and Dr. Varma, he did not support his conclusion with specific evidence which clearly and directly refuted Dr. Dann's opinion that Vinson was disabled. Such an error requires a remand. See Embrey, 849 F.2d at 422.

V

In the same vein, Vinson argues that the ALJ improperly rejected her pain testimony. Here too we agree with Vinson.

Vinson testified that she had pain in her chest, back, hands, feet, colon, and joints. According to her, this pain alone rendered her disabled. The ALJ found that her "subjective complaints of pain and limitation are not proportional to the established severity of her impairments, and, therefore, are not entirely credible."

The Secretary is not required to believe a claimant's pain testimony. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). However, the Secretary must make specific findings justifying that decision. Id. Although we have been somewhat "enigmatic as to what findings are sufficiently specific to discredit pain testimony," we generally look to the Secretary's discussion of testimony about the claimant's daily activities, unexplained or inadequately explained failure to seek treatment, and the claimant's reputation for truthfulness. See Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989).

The ALJ here failed to discuss the Fair analysis.³  Rather, his finding was conclusory and therefore inadequate.

In Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990), the ALJ found that the claimant's pain testimony was out of proportion to the medical evidence and thus was not completely credible. See id. at 1201. We held that the ALJ did not fully articulate reasons for refusing to credit the claimant's testimony. Id. We then remanded the case to the Secretary, since we could not discern the "basis for the ALJ's finding" that the claimant was not entirely credible. Id. at 1202.

Here, the basis for the ALJ's finding that Vinson was not fully credible is even less discernible than in Gonzalez. At least in Gonzalez, the ALJ discussed the claimant's ability to perform certain activities. Id. at 1201. Nevertheless, we observed that "the ALJ did not specifically link that testimony to a conclusion that appellant's excess pain testimony lacked credibility." Id. Here, the ALJ did not even mention Vinson's daily activities in his decision.

VI

For the reasons described above, we conclude that the ALJ erred in failing to provide specific reasons for rejecting Dr. Dann's opinion that Vinson was disabled and for discrediting Vinson's pain testimony. Without such reasons, we cannot be assured that the Secretary properly considered all submitted evidence in denying Vinson's claim.

We reverse the decision of the district court and remand with directions to return this matter to the Secretary for further proceedings.

REVERSED and REMANDED.