Unpublished Disposition, 872 F.2d 427 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 872 F.2d 427 (9th Cir. 1989)

Ruby FISHER, Plaintiff-Appellant,v.SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES,Defendant-Appellee.** 

No. 88-6036.

United States Court of Appeals, Ninth Circuit.

Submitted*  Feb. 10, 1989.Decided March 27, 1989.

Before CANBY, WIGGINS and O'SCANNLAIN, Circuit Judges.


Appellant Ruby Fisher appeals the district court's affirmance of a decision of the Secretary of Health and Human Services ("Secretary") denying her claim for disability benefits under Title XVI of the Social Security Act. Appellant contends that substantial evidence does not support the Secretary's decision that she was capable of performing "heavy work" or that she was not suffering from a medically "severe" impairment. We affirm the Secretary's decision on the ground that appellant did not suffer from a medically severe impairment.


To qualify for disability benefits under Title XVI of the Social Security Act, a claimant must prove that she is unable to "engage in any substantial gainful activity" attributable to a "medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a) (3) (A) (1982). The claimant's disability must be "of such severity that ... considering [her] age, education, and work experience, [she cannot] engage in any other kind of substantial gainful work which exists in the national economy." Id. Sec. 1382c(a) (3) (B). "Congress has 'conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act.' " Heckler v. Campbell, 461 U.S. 458, 466 (1983) (quoting Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981)). Accordingly, " [t]he Secretary has established a five-step sequential evaluation process for determining whether a person is disabled." Bowen v. Yuckert, 107 S. Ct. 2287, 2290 (1987) (citing 20 C.F.R. Secs. 404.1520, 416.920 (1986)).

The Secretary first determines whether the claimant is currently engaged in "substantial gainful activity." If she is, disability benefits are denied. 20 CFR Sec. 416.920(b) (1988). If she is not, the Secretary then determines whether the claimant has a medically severe impairment or combination of impairments. If the impairments are not severe, disability benefits are denied. Id. Sec. 416.920(c). If the impairments are severe, the Secretary must then determine whether the impairments are equivalent to a number of listed impairments that the Secretary deems conclusively presumed disabling. Id. Sec. 416.920(d). If the impairments are not among those conclusively presumed disabling, the Secretary must determine whether the impairments prevent the claimant from engaging in work that she has performed in the past. If the claimant is able to perform her previous work, she is not disabled. Id. Sec. 416.920(e). If the claimant is unable to perform her previous work, the Secretary must then reach the final step of the evaluation, which requires determining whether the claimant is capable of performing other work in the national economy in view of her residual functional capacity, age, education, and work experience. The claimant is entitled to disability benefits only if she is unable to perform other work. Id. Sec. 416.920(f).

A claimant's entitlement to benefits is initially determined by a state agency acting under the authority and supervision of the Secretary. 42 U.S.C. § 1383b(a) (1982). A dissatisfied claimant may seek administrative review of an adverse decision by obtaining a hearing before an administrative law judge ("ALJ"). Id. Sec. 1383(c) (1). At this hearing the Secretary bears the ultimate burden of proving that other employment in the national economy is available to the claimant. Nevertheless, the claimant bears the initial burden of proving prima facie disability under the first four criteria. Yuckert, 107 S. Ct. at 2294 n. 5. A claimant who is still dissatisfied after this hearing may seek review by the Appeals Council, 20 CFR Sec. 416.1467 (1988), and only then by a federal district court, 42 U.S.C. § 1383(c) (3) (1982).

Appellant, a fifty-nine year old woman who possesses an eleventh grade education, has not worked since 1971 when she was last employed as a waitress. In June 1985 Appellant applied for disability benefits under Title XVI claiming that symptoms of arthritis, diarrhea, and hypertension had disabled her since June 1971. Her application was denied initially and again after reconsideration. Appellant then obtained a hearing before an ALJ who heard testimony from Appellant, her husband, and a vocational expert. Appellant testified that pain caused from arthritis symptoms effectively precluded her from walking more than one-half of a block "without passing out," grasping objects with her hands, sitting more than one hour at a time, or lifting more than ten pounds. Appellant also testified that she had to go to the bathroom twelve to fifteen times daily because she had diarrhea that could not be cured. Appellant's husband testified that because of her impairments he helped her perform all the household chores and cared for some of her personal needs. The vocational expert testified, in response to a hypothetical question posed by the ALJ, that in excess of 2000 medium occupation jobs were available in the regional economy for an individual who required ready access to lavatory facilities.

After considering this testimony along with the medical records introduced into evidence, the ALJ concluded that Appellant did not qualify for disability benefits. The ALJ first concluded that Appellant is "as healthy as any normal 57 year old female," stating that:

the claimant's testimony at the hearing was greatly exaggerated and had every appearance of a poorly staged charade in an attempt to obtain disability benefits. Not only is the claimant's testimony at the hearing at odds with all the objective evidence, her complaints at the hearing were also inconsistent with the much milder complaints made to her treating and examining physicians.

The ALJ cited clinical tests that showed that Appellant's range of motion was normal for a woman of her age, that her hypertension and diabetes were controlled with proper medication and diet, and that her diarrhea problems were resolved after treatment with metamucil, a mild nonprescriptive medicine. The ALJ thus concluded that Appellant was capable of performing basic work-related activities, and therefore was not disabled pursuant to section 416.920(c) of the Regulations.

Notwithstanding this determination, the ALJ also assessed Appellant's residual functional capacity pursuant to section 416.920(f) of the Regulations. The ALJ concluded that Appellant had no nonexertional limitations and her only exertional limitation was that she was unable to lift more than 100 pounds. The ALJ recognized that Appellant had no "relevant" work experience, was of "advanced age," and had only a "limited education." Nevertheless, the ALJ concluded that, considering her residual functional capacity, she was not disabled pursuant to section 416.920(f). The Board of Appeals declined to review the ALJ's decision, which thus represented the final determination of the Secretary. Appellant then filed this action in the Federal District Court for the Central District of California, which concluded that substantial evidence in the record supports the Secretary's determination of no disability. This timely appeal followed and we now have jurisdiction pursuant to 28 U.S.C. § 1291 (1982).



A denial of a disability claim is to be affirmed "if the Secretary's findings of fact are supported by substantial evidence and the Secretary applied the proper legal standards." Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1278 (9th Cir. 1987) (citation omitted). Substantial evidence " 'is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,' " Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted), but "the reviewing court must 'look at the record as a whole and not merely at the evidence lending support to a finding,' " Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980) (citation omitted).



Appellant argues that the Secretary incorrectly rejected her claim for disability benefits based on an erroneous conclusion that she had the functional residual capacity to perform "heavy work" and on an erroneous conclusion that her impairment was not "severe." Both bases for denial depend in large measure on the Secretary's simultaneous conclusion that Appellant's subjective pain testimony was not credible. Appellant's challenge to this determination is therefore considered first.

As stated by this court before,

The Secretary is not required to believe a claimant's complaints of pain. The Secretary can disregard such self-serving testimony whenever the claimant fails to submit objective medical findings establishing a medical impairment that could reasonably be expected to produce the claimed pain. However, [the Secretary] must make specific findings justifying that decision.

Green v. Heckler, 803 F.2d 528, 531-32 (9th Cir. 1986) (citations omitted). Equally clear is that the Secretary's "assessment of pain level is entitled to great weight." Id. at 532 (citation omitted).

Appellant argues that the Secretary incorrectly discounted her testimony regarding the level of pain she suffered from arthritis. But Appellant does not point to any objective medical evidence in the record that necessarily leads to the conclusion that her subjective pain testimony was credible. As noted by the Secretary, the medical reports indicate that, at most, Appellant suffered only minor symptoms of arthritis and that at no time prior to the hearing had she reported any extreme discomfort to her treating physicians. The Secretary's findings clearly state that Appellant's subjective complaints are inconsistent with the medical evidence in the record, and therefore substantial evidence supports the conclusion that appellant's subjective pain testimony was not credible. See Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985).

" [A]n impairment is found not severe ... when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work." Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (emphasis in original) (quoting Social Security Ruling 85-28); see also Bowen v. Yuckert, 107 S. Ct. 2287, 2299 (1987) (O'Connor, J., concurring) ("Only those claimants with slight abnormalities that do not significantly limit any 'basic work activity' can be denied benefits without undertaking [the] vocational analysis."). Appellant cites various medical reports contained in the record as evidence that her impairments would have "more than a minimal effect" on her ability to work, and therefore she argues that the Secretary should have concluded that her impairments were severe.

As the Secretary points out, however, the mere existence of an impairment is insufficient in and of itself to satisfy a showing that the impairment is so "severe" as to preclude substantial gainful employment. Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir. 1982). In this regard, the medical report of the Good Samaritan Medical Center indicated that Appellant's hypertension and diabetes were controllable with proper medication and diet. Further, that same report indicated that Appellant's diarrhea problems were resolved after treatment with metamucil. Finally, the medical report of Richard Barry, M.D., indicated that Appellant's range of motion was normal for a woman of her age. Thus, there is substantial evidence in the record to support the Secretary's conclusion that Appellant's impairments did not have more than a minimal effect on her ability to perform basic work activities.



We find that substantial evidence supports the Secretary's conclusion that appellant's subjective pain testimony was not credible and that her impairments have no more than a minimal effect on her ability to perform basic work activities. She is not disabled under 20 C.F.R. Sec. 416.920(c) (1988). We need not decide, therefore, whether substantial evidence supports the Secretary's alternative basis for denying benefits under 20 C.F.R. Sec. 416.920(f) (1988).

The judgment is AFFIRMED.


The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


Pursuant to Fed. R. App. P. 43(c) (1) & (2), the appellee's title has been substituted for the former appellee, Otis Bowen, M.D


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3