Unpublished Disposition, 851 F.2d 360 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 360 (9th Cir. 1988)

William C. BUCK, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 87-3538.

United States Court of Appeals, Ninth Circuit.

Submitted June 1, 1988.* Decided June 23, 1988.

Before SKOPIL, CYNTHIA HOLCOMB HALL and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

William Buck appeals the district court's affirmance of the Secretary's denial of disability benefits. We reverse and remand to the district court with instructions to remand to the Secretary.

FACTS AND PROCEEDINGS

In 1983 Buck suffered a heart attack. Afterwards, Buck frequently suffered from angina (heart pain). Buck also has back problems, which result from chronic lower back disc problems and back fusion. As a result, Buck has had pain in his lower back.

In 1984 Buck filed an application for disability benefits, which alleged disability due to heart disease and back problems. At a hearing on his claim, Buck testified that both angina and lower back pain prevented him from working. In 1985 the ALJ denied Buck benefits. The ALJ found that Buck did not provide sufficient medical evidence to corroborate his claim of disabling pain. Buck appealed to the Appeals Council, which affirmed on behalf of the Secretary. Buck then appealed the Secretary's decision to the district court, which also affirmed. Buck filed a timely appeal.

DISCUSSION

Buck claims that the Secretary's decision is not supported with substantial evidence for three reasons. First, the ALJ failed to give appropriate weight to his testimony regarding pain. Second, the ALJ neglected to take the combination of his impairments into account. Finally, the ALJ improperly applied the grids because of his use of the age categorization.

To be considered, subjective complaints of pain must be associated with medical impairments that "could reasonably be expected to produce the pain or other symptoms alleged." 42 U.S.C.A. Sec. 423(d) (5) (A) (West Supp.1988); see 20 C.F.R. Sec. 404.1529 (1987). In some cases, the claimant has an impairment which normally produces pain, but he or she testifies to a higher level of pain than the medical evidence will support. In these cases, the Secretary can disregard the pain testimony only if he makes specific findings. Gamer v. Secretary of Health and Human Serv., 815 F.2d 1275, 1279 (9th Cir. 1987). The specific findings requirement is not satisfied if the ALJ discredits excess pain testimony solely on the ground that it is not fully corroborated by objective medical evidence. Varney v. Secretary of Health and Human Serv., No. 87-6075, slip op. at 5452 (9th Cir. May 16, 1988).

Here, we reverse and remand with instructions to remand to the Secretary for specific findings. Buck has two ailments--heart disease and back problems--which normally produce pain. Though none of the doctors found his angina and back pain disabling, Buck testified at the hearing that he could not work because of these pains. However, the ALJ failed to make a specific finding rejecting Buck's testimony. Instead, he flatly labeled the testimony "out of proportion to the medical evidence."1 

We reject Buck's two other claims.

The Secretary must consider the combined impact of a claimant's impairments. 42 U.S.C.A. Sec. 423(d) (2) (C) (West Supp.1988). Here, contrary to Buck's suggestion, the ALJ did address the combined effect of his impairments. The ALJ found that no "combination of impairments" met or equaled a listed impairment.

The Secretary can use the age categorization on its grid to decide disability questions. Calvin v. Heckler, 782 F.2d 802, 805 (9th Cir. 1986). However, the Secretary should not apply the cases mechanically in a borderline situation. 20 C.F.R. Sec. 404.1563(a). Here, Buck's age at the time of the hearing was 48 years and 9 months. The age categorization he falls into ranges from 45 years to 49 years and 364 days. See 20 C.F.R. Sec. 404.1563(b). So, he is more than a year away from the upper cap of his age category. This is not a borderline situation.

REVERSED and REMANDED with instructions.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

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

 1

The ALJ offered another reason for rejecting Buck's testimony. Based on his personal observation, the ALJ asserted that Buck was not a credible witness because he did not exhibit signs of disabling pain. The ALJ cannot use this "sit and squirm" test to reject Buck's pain testimony. See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)