Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1989)

Gerald W. McALLISTER, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 88-5590.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1989.Decided May 18, 1989.

Before ALARCON, BRUNETTI and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

Gerald McAllister appeals the magistrate's summary judgment which affirmed the Secretary's denial of disability benefits. We have jurisdiction under 28 U.S.C. §§ 636, 1291. We affirm.

FACTS

McAllister alleges that he suffers from chronic leg pain and atypical chest pain. In making his disability claim, he primarily relies on his leg problems. In particular, he asserts that the leg pain prevents him from walking more than thirty or forty-five minutes per day and that standing or sitting with his legs in a dependent position increases his leg pain. Physicians who have examined him have been unable to determine the cause of McAllister's pain. And the results of most tests on McAllister have been negative.

McAllister claims that his health problems render him disabled. The Administrative Law Judge ("ALJ") and the Appeals Council agreed that McAllister has impairments which render him unable to perform his past relevant work as an auto mechanic, forklift operator, truck driver or laborer. But they found that he can perform sedentary work. Relying on the medical-vocational guidelines, they concluded that McAllister is not disabled and denied him disability benefits.

McAllister challenged the denial in district court. The parties stipulated to have the case heard and determined by a magistrate. The magistrate granted the Secretary's motion for summary judgment. McAllister filed a timely appeal.

METHOD OF REVIEW

We review the magistrate's summary judgment de novo. Liberty Bank of Montana v. The Travelers Indemnity Co. of America, No. 87-4240, slip op. 3063, 3066 (9th Cir. Mar. 29, 1989); Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). We may set aside a denial of disability benefits when the Secretary's decision is based on legal error or is not supported by substantial evidence. Desrosiers v. Secretary of Health and Human Serv., 846 F.2d 573, 575-76 (9th Cir. 1988).

Initially, the burden of proof lies on the claimant to prove that he is disabled. Gamer v. Secretary of Health and Human Serv., 815 F.2d 1275, 1278 (9th Cir. 1987). However, once the claimant makes a prima facie case by proving that his impairment prevents him from doing his previous job, the burden shifts to the Secretary to show that he "can do other substantial gainful activity." Id.; see also Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). In this case, both the ALJ and the Appeals Council concluded that McAllister is unable to return to his past relevant work. Thus, the Secretary had the burden to prove that McAllister can do other substantial gainful activity.

"The Secretary can satisfy this burden by either (1) applying the Medical-Vocational Guidelines ("grids") in appropriate circumstances or (2) taking the testimony of a vocational expert." Burkhart, 856 F.2d at 1340. The grids are tables and rules which the Secretary uses to help standardize disability determinations. "The grids take account of various vocational factors, such as age, education and work experience, and the claimant's residual functional capacity." Razey v. Heckler, 785 F.2d 1426, 1430 (9th Cir.), modified, 794 F.2d 1348 (9th Cir. 1986). And although the grids "are predicated" on the claimant having an impairment which manifests itself as a exertional or strength limitation, see 20 C.F.R.Pt. 404, Subpt. P, App. 2, Sec. 200.00(e) (1988), we have held that the grids may be used to evaluate claimants who suffer from a combination of exertional and nonexertional limitations. Polny v. Bowen, 864 F.2d 661, 663 (9th Cir. 1988); Razey, 785 F.2d at 1430.

ANALYSIS

McAllister asserts that the Secretary made two prejudicial errors in denying his disability claim. First, McAllister argues that the Secretary improperly rejected the uncontradicted opinions of medical experts. Second, McAllister argues that the Secretary improperly rejected his testimony regarding the allegedly debilitating degree of pain he suffers.

* " [T]he ALJ must provide clear and convincing reasons for rejecting an uncontroverted medical opinion." Bilby v. Schweiker, 762 F.2d 716, 718 (9th Cir. 1985) (per curiam); see also Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1985). Furthermore, the ALJ cannot reject the opinions of treating physicians without setting "forth 'specific, legitimate reasons for doing so that are based on substantial evidence in the record.' " Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989); Brawner v. Secretary of Health and Human Serv., 839 F.2d 432, 433 (9th Cir. 1988).

McAllister claims that the medical evidence in his favor is uncontradicted. In particular, he relies on evidence provided by Drs. Graboff and Mandelbaum. Dr. Graboff concluded that McAllister's pain was disabling because he cannot keep his legs in a dependent position for a long time. Dr. Mandelbaum, apparently one of McAllister's treating physicians, opined that McAllister's leg pain prevented him from participating in any walking activities.

As the Appeals Council noted, however, Dr. Graboff did not set forth any clinical evidence in support of his opinion. The Secretary contends that Graboff based his opinion solely on McAllister's complaints. Substantial evidence supports this position. Likewise, the structure of Dr. Mandelbaum's report suggests that Mandelbaum merely recorded McAllister's complaints rather than formed his own opinion about McAllister's problems. Mandelbaum's comment about walking appears in the patient history portion of the report. We conclude that both expert "opinions" may be regarded as summaries of McAllister's complaints rather than as probative medical opinion evidence supporting McAllister's claim of disability. See Brawner, 839 F.2d at 434. Moreover, the record reflects the results of numerous tests which established that there were no limitations on McAllister's movement and reflexes. This evidence controverts the "opinions" relied upon by McAllister and supports the Secretary's decision to reject them.

B

McAllister argues that the Secretary improperly rejected his testimony regarding the level of his leg pain and the effect his pain has on his activities. "We require specific findings when an ALJ rejects a claimant's subjective allegation of pain. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)." Miller v. Heckler, 770 F.2d 845, 848-49 (9th Cir. 1985). In Miller,

The ALJ made the following findings regarding Miller's allegation of pain:

The level of pain suffered by the claimant is not severe nor is it incapacitating as indicated by the lack of any significant objective findings in the medical evidence; it is noted that there is no evidence of any significant loss of range in the spine, arms, or legs, nor is there any evidence of any related muscle spasm or fasiculations in these areas.

Id. at 849. We affirmed the Secretary's decision concluding that: "in light of Dr. Dhalla's report, which found no significant limitations due to pain, the ALJ's findings are supported by substantial evidence." Id.; see also Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985); cf. Hammock v. Bowen, 867 F.2d 1209, 1213-14 (9th Cir. 1989) (holding the Secretary's rejection of pain testimony to be reversible error); Policy Interpretation Ruling: Titles II and XVI: Evaluation of Pain and Other Symptoms, Soc. Sec. Ruling 88-13 (1988).

In McAllister's case, the Appeals Council found that:

While the claimant does have leg pain and tenderness upon prolonged walking and standing, there is no clinical evidence to show he has an impairment which would prevent occasional walking and standing or prolonged sitting with his feet in a dependent position.

There is no x-ray evidence of stress fractures or any other bony abnormality. The range of motion of all joints was within normal limits in every examination. There has been no neurological or orthopedic deficit found in any of the examinations although tenderness in the lower extremities has been elicited, no swelling or abnormality of temperature has been found.

Decision of Appeals Council at 3-4. The findings in this case are similar to those made in Miller. Accordingly, Miller controls, and we hold that the Secretary properly rejected McAllister's pain testimony.

McAllister also contends the Secretary made a legal error by relying on the grids despite McAllister's testimony about the substantial amount of pain he suffers which allegedly prevents him from working. However, a claimant cannot "circumvent the guidelines simply by alleging the existence of a non-exertional impairment, such as pain, validated by a doctor's opinion that such impairment exists." Desrosiers v. Secretary of Health and Human Serv., 846 F.2d 573, 577 (9th Cir. 1988). In this case, the Secretary has determined that, nonexertional limitations notwithstanding, McAllister can perform a full range of sedentary work. In this case, the grids accurately describe McAllister's abilities taking into account all of his accepted limitations. And under the grids, McAllister is not disabled. We hold that there is sufficient evidence to support application of the grids and to support the denial of benefits.

AFFIRMED.

 *

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