Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1987)

MEMORANDUM^** 

Barbara Lamar-Cook appeals the district court's grant of summary judgment in favor of the Secretary of Health and Human Services (Secretary), after the Secretary denied her application for Social Security disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 423.¹  Lamar-Cook contends that the Secretary's decision that she is not disabled is not supported by substantial evidence and that the Secretary did not use the proper legal standards in making the decision. For the reasons discussed below, we affirm the judgment of the district court.

PROCEDURAL BACKGROUND

Barbara Lamar-Cook filed an application for disability insurance benefits on November 12, 1985, at the age of 60. She alleged that she became disabled on December 16, 1983 due to a severe anxiety depression disorder related to her job as a clerk-typist at the Sacramento County Assessor's office. After the Secretary denied her application, Lamar-Cook sought a hearing before an administrative law judge (ALJ). On November 18, 1986, the ALJ found that she was not disabled for purposes of obtaining disability benefits.

The ALJ's decision became the final decision of the Secretary after it was approved by the Appeals Council. Lamar-Cook then filed a complaint in district court pursuant to 42 U.S.C. § 405(g).²  Based on the recommendation of a United States Magistrate, the district court granted the Secretary's motion for summary judgment on April 16, 1987.

MEDICAL BACKGROUND

At the hearing before the ALJ, Lamar-Cook testified that she was born on December 4, 1925 and last worked as a clerk-typist for the County of Sacramento. She held that position for eleven years, and last worked in December 1983. She stopped working due to dizziness, depression, and anxiety. She described her job as "extremely stressful" and stated that she had an overbearing supervisor who intimidated her by yelling and screaming.

She stated that after she stopped working, her dizziness subsided for a time, with only occasional episodes. She testified, however, that beginning around January 1986, she began to experience daily dizziness which lasts for approximately an hour to an hour and a half. When she experiences the dizziness, she also feels a "shooting sensation in the left side of her head" and unsteadiness. She stated that she takes Xanax for anxiety and sleeps during the day which disrupts her night sleeping. She testified that she had trouble sleeping about four times a week. She also stated that she restricted her daily activities out of fear that her dizziness would recur. Her daily activities included "very little" gardening, playing bridge, cooking, washing clothes, straightening up her home, and reading. She stated that her husband did the grocery shopping as she had a tendency to become dizzy in the store.

A review of the medical records reveals that Lamar-Cook has a long standing psychiatric condition, first diagnosed in the early 1970s. In August 1983, she was examined by Dr. Glenn Hakanson, a psychiatrist, at the request of her attorney. Dr. Hakanson diagnosed dysthymic disorder with histrionic and antisocial characteristics. He believed her to have a psychiatric disability. He did not believe this disability precluded her from working, but stated that it did interfere to some degree with work and had a profound effect on her social life.

On November 1, 1983, Lamar-Cook was examined by Dr. Robert Blau, an internist, also at the request of her attorney. Dr. Blau reported that Lamar-Cook stated experiencing considerable stress at her present employment, which she described as "a highly pressurized situation." She mentioned difficulties with her supervisor as well as anxiety about complying with new laws and regulations at work.

Lamar-Cook was examined by Dr. Frederick Whipple, a psychiatrist, on January 25, 1984. In his report, Dr. Whipple recounted Lamar-Cook's problems at work, particularly her difficulties with her supervisor. He also noted that she had stopped working on December 16, 1983 and that, when he examined her, she stated that she felt "pretty good" and was no longer depressed. Her sleeping pattern was intact and her energy had returned. His diagnosis was major depression, recurrent, in remission. He believed her condition had stabilized and that she should not work at a position which would expose her to "unusual stress such as she experienced at the Assessor's Office." He thought that if this restriction was followed, there would be no other residual disability. Dr. Whipple noted that Lamar-Cook's past job was stressful (due, in particular, to her supervisor) and that if it were not for these stresses, she would not have suffered any disability. He did not believe that there was any need for rehabilitation because he thought that Lamar-Cook could utilize her skills in a different environment. He also thought that she did not need further medical care.

Lamar-Cook was again examined by Dr. Hakanson on March 16, 1984 at the request of her attorney. At that time Lamar-Cook stated that she no longer considered herself depressed and no longer had "undue anxiety attacks." She reported that her psychiatric symptomatology had gradually resolved over a six-week period after she stopped working. Dr. Hakanson noted that her depression appeared to be nearly completely resolved with only minimal signs remaining. His diagnosis was past history of dysthymic disorder, psychological factors affecting physical condition, both currently in remission, and mixed personality disorder. He predicted that if she returned to her prior job she would experience a relapse. He therefore recommended that she find a different employer.

In December 1984, Dr. Cederburg, Lamar-Cook's internist, reported that Lamar-Cook had no further anxiety attacks since she quit her job. On July 5, 1985, he described her as "doing well and overall less depression, and is stretching out her visits to Dr. Bittle [her psychiatrist]." Dr. Bittle completed an evaluation form on January 8, 1986. He noted that Lamar-Cook had been depressed, but when last seen, was feeling better and was making plans for a vacation to Arizona and Las Vegas. He believed that her condition would improve if she was not working and had no demands made of her. He stated that she related well and had good personal habits with no problems in reality contact. His diagnosis was neurosis, chronic anxiety, and depression.

On January 16, 1986 Lamar-Cook was examined by Dr. Gary Davis, a psychiatrist, at the request of the Secretary. Dr. Davis found no overt evidence of psychotic phenomena or suicidal ideation. His diagnosis was anxiety disorder. He stated that he had no recommendations.

Dr. Cederburg, in progress notes dated March 27, 1986, indicated that Lamar-Cook had occasional palpitations and dizziness, relieved by Xanax. Dr. Cederburg's progress notes of May 16, 1986 indicated that Lamar-Cook reported an increase in dizziness relieved by Antivert. He also noted that Lamar-Cook stated that Xanax was of "great benefit" for her anxiety. Dr. Cederburg reported on June 13, 1986 that Lamar-Cook felt well other than decreased hearing in her right ear, which was restored after Dr. Cederburg irrigated the ear to remove wax.

The record also contains a decision from the Sacramento County Employees' Board of Retirement dated March 27, 1986, finding that Lamar-Cook has a severe psychiatric disorder which, while it disabled her from the performance of her job with the County, did not arise out of her duties there.

DISCUSSION

"The Secretary's findings are reviewable as to whether they are supported by substantial evidence and as to whether the Secretary used proper legal standards. 42 U.S.C. § 405(g)." Swanson v. Secretary of HHS, 763 F.2d 1061, 1064 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, based on the record as a whole. Id. We review de novo the district court's legal conclusion that the Secretary's decision was supported by substantial evidence. Brawner v. Secretary of HHS, 839 F.2d 432, 433 (9th Cir. 1988) (per curiam). Where the evidence as a whole can support either outcome, the reviewing court may not substitute its judgment for the ALJ's. Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

Lamar-Cook contends that the Secretary failed to fully consider the medical evidence and misapplied the five-step procedure of 20 C.F.R. Sec. 404.1520 in determining that Lamar-Cook is not disabled for purposes of receiving disability benefits.³  Specifically, she argues that the ALJ erred in concluding that, although she has a severe impairment (20 C.F.R. Sec. 404.1520(c)), the impairment does not meet or equal a listed impairment in Appendix 1, section 12.06, of the Regulations pursuant to 20 C.F.R. Sec. 404.1520(d).⁴ 

The ALJ found that the medical evidence satisfied the requirements of section 12.06(A), but that there were insufficient findings in Lamar-Cook's medical record to satisfy section 12.06(B), as is required for a finding that Lamar-Cook's impairments meet or equal a listed impairment in Appendix 1. Lamar-Cook states that the medical evidence shows that she meets or equals several of the listed impairments in Appendix 1 concerning mental disorders. Aside from her history of mental illness, Lamar-Cook argues that her daily bouts of dizziness, which she testified to at the hearing, require a finding of disability.

The Secretary responds that substantial medical evidence supports the ALJ's finding that Lamar-Cook's symptoms quickly improved after she stopped working and that she was soon able to resume her normal activities. The several doctors she saw between December 16, 1983--the alleged disability onset date--and the hearing date all found that Lamar-Cook's condition had improved enormously after she left the exceptionally stressful environment of the County Assessor's office. The Secretary argues that since Lamar-Cook's disabling depression, anxiety, and resulting dizziness clearly did not last the twelve months from the alleged onset date of her disability required by 42 U.S.C. § 423(d) (1) (A), she did not satisfy her burden of proving that she is disabled. See Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986) (in hearings arising out of initial application for benefits, claimant has burden of proving that he or she is disabled).

The medical evidence in this case clearly supports the ALJ's finding that Lamar-Cook's mental disability did not last for twelve months after she left her job at the County Assessor's office. As documented in the record, all of Lamar-Cook's doctors reported immense improvements in her condition and a return to normal functioning as early as six weeks after she left her job.

The Secretary also argues that Lamar-Cook's testimony at the hearing regarding her ongoing daily attacks of dizziness was self-serving and not supported by the medical evidence. In the first year after leaving her job, Lamar-Cook had only three dizzy spells. At the hearing, she testified that she now was having them every day. The Secretary points out that Lamar-Cook mentioned dizziness to a doctor only twice during the twelve months before the hearing even though she was seeing several doctors regularly during this time. The medical evidence also shows that she told her doctor that her symptoms of dizziness were relieved by medication. See Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (a condition that can be remedied or controlled cannot serve as a basis for disability).

We have held that an ALJ must make a specific finding as to the credibility of a claimant's subjective complaints of pain, although the Secretary need not accept those complaints if they are unsupported by objective findings. Swanson, 763 F.2d at 1064. Here, the ALJ concluded that because the medical evidence showed that Lamar-Cook's dizziness had allegedly recurred less than twelve months before the hearing and because the dizziness was relieved by medication, it was not credible to expect the dizziness to last for a full twelve-month period as required for a finding of disability. The ALJ's specific finding that, based on the medical evidence, it was not credible to expect Lamar-Cook's dizziness to last for a twelve-month period is supported by substantial evidence.

Even though the ALJ found that Lamar-Cook did not meet or equal a listed impairment in Appendix 1, because he had found that she has a severe impairment, he then had to determine (pursuant to 20 C.F.R. Sec. 404.1520(e)) whether her impairment prevents her from doing past relevant work.⁵  Lamar-Cook contends that the ALJ also erred in concluding that she does have the residual functional capacity to do her past relevant work as a clerk-typist, which the ALJ found to be light work. She argues that the January 8, 1986 report of her psychiatrist, Dr. Bittle, in which he stated that Lamar-Cook's condition could be expected to improve if she does not work and has no demands made of her, shows that she is unable to return to her former occupation, not just her former job.

The Secretary responds that none of Lamar-Cook's other doctors concluded that she should not work as a clerk-typist. For example, Dr. Whipple and Dr. Hakanson merely stated that she should not return to her former job; Dr. Whipple stated that she could utilize her skills in another less stressful setting and that, therefore, no vocational rehabilitation was necessary.

In addition, a vocational expert testified at the hearing in response to a hypothetical question from the ALJ that an individual with Lamar-Cook's medical history should be able to perform her past work as a clerk-typist because that occupation is not normally a highly stressful one. In addition, the vocational expert testified that there are clerk-typist positions available in the national economy where there is no need to deal with the public and where the employees type for the full eight hour day. The vocational expert did caution, however, that as in any job, there is always the possibility of emergency situations or of a difficult supervisor or coworker. The vocational expert also testified in response to another hypothetical question that, assuming that Lamar-Cook experiences one to two hours a day of incapacitating dizziness, she would not be able to perform any of her past relevant work.⁶ 

The ALJ thoroughly considered all of the relevant medical evidence regarding Lamar-Cook's ability to return to her former occupation as a clerk-typist. He also used the proper legal standards in determining whether Lamar-Cook is disabled. While there are some conflicts and ambiguities in the evidence, looking at the record as a whole, the Secretary's determination that Lamar-Cook is capable of performing past relevant work is supported by substantial evidence. See Key, 754 F.2d at 1549 (where ALJ hears conflicting reports from medical experts and evidence was sufficient to support either outcome, "we must affirm the decision actually made"). Although Lamar-Cook is precluded from returning to her exceptionally stressful former job, substantial evidence supports the ALJ's conclusion that she is able to return to a less stressful clerk-typist position. See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (claimant must prove inability to return to former type of work and not just to former job).⁷ 

AFFIRMED.