Unpublished Disposition, 842 F.2d 335 (9th Cir. 1988)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 842 F.2d 335 (9th Cir. 1988)

No. 86-4360.

United States Court of Appeals, Ninth Circuit.

Before CYNTHIA HOLCOMB HALL and O'SCANNLAIN, Circuit Judges, and KELLER,**  District Judge.

MEMORANDUM* 

Lois Sewell appeals the district court's summary judgment affirmance of the Secretary's denial of her disability claim. We reverse and remand to the district court with instructions to remand to the Secretary.

FACTS AND PROCEEDINGS

In April 1984, Sewell filed an application for social security disability benefits. At the time of the application, Sewell was 60 years old and had worked for 15 years as a secretary.

After the application had been denied twice, Sewell presented medical evidence of two problems to an administrative law judge ("ALJ"). First, she offered evidence that in 1977 she was diagnosed as having degenerative arthritis. In 1984 Sewell's arthritis began to create pains in her joints. In May 1985 Dr. Shulsinger observed: "Her cervical spine shows rather advanced arthritic changes and she may well have some degenerating disc disease at C-3 through C-5." Second, Sewell entered medical evidence into the record of a chronic obstructive pulmonary disease, first noted by a physician also in 1977. This ailment has worsened over time.

In August 1985 the ALJ issued his decision and rejected her claim for two reasons. First, her ailments do not come within any "listed impairment." Second, she can return to work as a secretary because she can do light or sedentary work activity. In reaching this second conclusion, the ALJ wrote: "She expressed concern that she would have too much neck pain if she returned to work. It is true that with her mild osteoarthritis she may have some pain with even sedentary activity for a full work shift. There is medication to ease pain of this type." Sewell appealed the ALJ's decision to the Appeals Council of the Social Security Administration.

Before the Appeals Council reached its decision, Sewell submitted additional medical evidence--a letter from Dr. Shulsinger--which commented on Sewell's medical problems. He wrote with regard to her arthritis that

Mrs. Sewell has chronic persistent pain in her neck which is due to cervical osteoarthritis and cervical disc disease and this is not sufficient to cause nerve root compression. Certainly it is sufficient to cause continued and persistent pain. I doubt very much that because of her chronic pain she would be very useful as a secretary. She has had continued pain since 1976, and is somehow able to live with this, but the pain interferes with her concentration and I doubt that she would be able to be a suitable secretary that would please an employer.

He also noted the combined impact of Sewell's two ailments on her ability to work as a secretary:

I think realistically speaking with her moderately severe obstructive and restrictive lung disease and her cervical osteoarthritis, the possibility of her returning to adequate function as a secretary, I think, is a little bit unrealistic. I believe that an employer expects his secretary to perform rapidly, to be dexterous, to be able to concentrate, and with these two health problems I think the possibility of this occurring is negligible.

The Appeals Council reviewed the letter as a summary of previous reports which were reviewed by the ALJ. However, the Council rejected the letter's conclusion of disability because: (1) other physicians did not note similar limitations; and (2) Shulsinger completed a medical assessment form "indicating that she can lift and carry 15 pounds, that she can walk less than one hour and that her impairments do not affect her ability to sit, reach and handle." Since it believed that Shulsinger's report did not affect the ALJ's findings, the Council adopted the ALJ's decision for the Secretary of Health and Human Services.

Sewell appealed the Secretary's decision to the district court, which subsequently affirmed. Sewell filed a timely appeal.

DISCUSSION

Sewell claims that the Secretary's decision is not supported by substantial evidence and we agree.

The Secretary rested his decision on Sewell's ability to return to work on two factors. First, he agreed with the ALJ's findings that Sewell could do light work. Second, he dismissed Dr. Shulsinger's conclusion that Sewell would almost certainly be unable to return to work as a secretary.1 

As a general rule, the Secretary must be upheld whenever the medical evidence conflicts and it is therefore susceptible to one or more rational interpretations. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). However, whenever the conflict is between the treating physician and examining physician, the Secretary must set forth specific, legitimate reasons based on substantial evidence in the record for rejecting the treating physician's opinion. Winans v. Bowen, 820 F.2d 1519, 1523 (9th Cir. 1987). The rationale behind affording the treating physician greater weight is that he or she " 'is employed to cure and has a greater opportunity to know and observe the patient as an individual.' " Id. (quoting Sprague, 812 F.2d at 1230).

We hold for three reasons that the Secretary's rejection of Shulsinger's opinion is not supported by specific and legitimate reasons in the record based upon substantial evidence. First, the Secretary cannot justify his rejection on the rationale that other physicians did not note similar limitations. True, no other physician had said Sewell could not return to work, but the Secretary admitted Shulsinger's opinion in the first place on the theory that it summarized the evidence before the ALJ. For this reason, the Secretary cannot suggest now that Shulsinger's opinion is inconsistent with the evidence.

Second, the Secretary cannot rationalize his rejection of Shulsinger's opinion based upon the medical assessment that Shulsinger filled out. The assessment dealt only with Sewell's exertional problems, but Shulsinger believed that Sewell would be unable to return to work due to her pain which causes an inability to concentrate. Therefore, the fact that Sewell can satisfy certain exertional criteria has nothing to do with why Shulsinger believed Sewell cannot return to work.

Finally, the Secretary cannot fall back on the ALJ's conclusion that Sewell suffers from mild arthritis that causes some pain that can be controlled. This conclusion is not supported by substantial evidence. The uncontroverted opinion of Dr. Shulsinger was that Sewell (1) has experienced "rather advanced arthritic changes"; and (2) suffers from "chronic persistent pain" that "interferes with her concentration."

For these reasons, we reverse the decision of the district court and remand with instructions to remand to the Secretary for further proceedings in accordance with this memorandum.

REVERSED and REMANDED WITH INSTRUCTIONS.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 **

The Honorable William D. Keller, United States District Judge for the Central District of California, sitting by designation

 1

Although this evidence was not presented to the ALJ, the Appeals Council did review it before reaching its decision because it summarized medical evidence already on the record

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.