Unpublished Disposition, 880 F.2d 417 (9th Cir. 1989)

MEMORANDUM

Watson appeals from the district court's judgment affirming the denial by the Secretary of Health & Human Services (Secretary) of her application for disability insurance benefits. Watson contends that (1) the administrative law judge (ALJ) erred in failing to present adequate findings to justify discounting medical evidence supporting Watson's claim; (2) the ALJ erred in failing to make specific findings to justify discrediting Watson's "excess pain" testimony; and (3) the ALJ erred by failing to make specific findings of Watson's "residual functional capacity" (RFC) and prior job demands. We have jurisdiction over Watson's timely appeal pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We reverse and remand for further findings.

Courts will disturb the Secretary's determination that a claimant is not disabled only if it is not supported by substantial evidence or it is based on legal error. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984) (Gallant) ; 42 U.S.C. § 405(g). We review the district court's decision independently. Brawner v. Secretary, 839 F.2d 432, 433 (9th Cir. 1988).

An ALJ may disregard uncontroverted medical expert testimony only if he sets forth "clear and convincing specific reasons for doing so." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986) (Cotton) . Clear and convincing reasons are required for disregarding the opinion of a claimant's treating physician, regardless whether it is contradicted. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). Watson complains that the ALJ failed to set forth clear and convincing reasons for disregarding the uncontradicted opinion of her treating physician, Dr. Potter. In his December 1985 report, Dr. Potter concluded that while he did "not feel [Watson] is totally disabled ... I certainly do not feel she could do her normal activities at this point and will require treatment in order to perform those activities." Dr. Potter gave her a no-work slip for about two months.

The ALJ did not discuss Dr. Potter's conclusions, let alone offer specific reasons for disregarding them. This was error. See id. at 327-28. We therefore must remand for the Secretary to consider Dr. Potter's conclusions. If the Secretary perceives any ambiguity in Dr. Potter's conclusions, he should resolve the ambiguity. See Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (Vincent) ; see also Thorne v. Schweiker, 694 F.2d 170, 172 (8th Cir. 1982) (" [I]t is for the ALJ to resolve ... ambiguities in the evidence."); Weber v. Harris, 640 F.2d 176, 178 (8th Cir. 1981) (same). If necessary, the Secretary should elicit additional information to clarify that ambiguity. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir. 1982).

Watson points next to the opinion of Dr. Adelberg, a non-treating physician who examined her one day after the ALJ issued his opinion. Dr. Adelberg found her disabled and capable of at most light work. Dr. Adelberg's report was considered by the Appeals Council which affirmed the ALJ. To the extent that Dr. Adelberg's findings and conclusions conflicted with those of Dr. Potter, the Appeals Council was free to resolve conflicts in the evidence, see Sanchez v. Secretary, 812 F.2d 509, 511 (9th Cir. 1987), and was bound to credit the opinion of the treating physician unless it set forth specific and legitimate reasons supported by substantial evidence in the record for doing so. See Hammock v. Bowen, 867 F.2d 1209, 1213 (9th Cir. 1989) (Hammock) .

In a letter to Watson affirming the ALJ's decision, the Appeals Council made no reference to Dr. Potter's opinion, so it is unclear whether it viewed Dr. Adelberg's testimony as conflicting with Dr. Potter's predictive opinion.

In addition, the Appeals Council's analysis of Dr. Adelberg's report was insufficient. Dr. Adelberg made a number of clinical diagnoses. "Disability may be proved by medically-acceptable clinical diagnoses, as well as by objective laboratory findings." Rodriguez v. Bowen, No. 87-2719, slip op. 5769, 5775 (9th Cir. May 30, 1989), quoting Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); 42 U.S.C. § 423(d) (3). After setting out extensive details of his clinical examination of Watson, Dr. Adelberg stated that " [t]here is lumbar tone change ... mild to moderate on the right, with limitation of spinal range of motion, flexion and extension dynamics testing...." These findings clearly contradict the Appeals Council's statement (without explanation) that Dr. Adelberg's examination revealed no loss of back motion.

Dr. Adelberg also made laboratory findings of disability. It is true, as the Appeals Council pointed out, that Dr. Adelberg reached the conclusion that Watson's electromyogram was abnormal after describing a series of apparently normal results from electromyography. The record, however, indicates the doctor who appears to have administered the test drew a similar conclusion. Even disregarding this aspect of Dr. Adelberg's report, there were numerous other clinical findings of impairments: a "leg length discrepancy with compensatory scoliosis (mainly rotatory), and lumbar spondylosis demonstrated by neurogenic and soft tissue alternations and radiologic data indicating an indentation on the thecal sac."

If indeed there is an evidentiary conflict between Dr. Adelberg and Dr. Potter, this conflict should be resolved by the Secretary, and we uphold his resolution when the evidence supports more than one rational interpretation. See Gallant, 753 F.2d at 1453. To the extent that Dr. Adelberg's testimony is uncontroverted, the Secretary may disregard it only if he sets forth clear and convincing specific reasons for doing so. Cotton, 799 F.2d at 1408; Gallant, 753 F.2d at 1453. We simply cannot tell from the record before us whether the Secretary (1) applied an incorrect legal standard to disregard Dr. Adelberg's clinical diagnoses, or (2) applied a correct standard, but viewed his report as conflicting in its entirety with Dr. Potter's medical report. In either case, it is necessary to reverse and remand. We have previously stressed the need for "full and detailed findings of facts essential to the Secretary's conclusion" so that a reviewing court may properly exercise its duty under 42 U.S.C. § 405(g) to determine whether substantial evidence supports the Secretary's decision. Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981), citing Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979). While the Secretary need not discuss all the evidence presented, he "must explain why 'significant probative evidence has been rejected.' " Vincent, 739 F.2d at 1394-95, quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981). The Appeals Council's failure to provide such an explanation or finding makes our statutory task of review impossible. We therefore remand for further findings with respect to Dr. Adelberg's report. See Villa v. Heckler, 797 F.2d 794, 798-99 (9th Cir. 1986) (remanding to fill gap in reasoning of Appeals Council).

Watson contends that the Secretary failed to articulate reasons for refusing to believe her subjective pain testimony. Where objective medical findings establish the existence of medical impairment, but a claimant testifies that she experiences pain at a higher level, the Secretary is free to disbelieve that testimony. The Secretary must, however, make a specific and justifiable finding that the claimant's testimony is not credible. Varney v. Secretary of Health & Human Services, 859 F.2d 1396, 1399 (9th Cir. 1988); Cotton, 799 F.2d at 1407. The claimant's pain need not be the inevitable result of the objective medical impairments; the pain need only be associated with such an impairment. Hammock, 867 F.2d at 1214.

Watson testified about calf pain, hip pain, and back pain, as well as pain resulting from standing or walking. She testified that driving was painful to her back, that her recreational, vocational, and household activities were severely limited by her pain, and that she could not carry more than 10 pounds. If true, her testimony establishes that she is unable to return to her former work as a nurse, which required her to stand frequently and lift up to 50 pounds.

Pointing to Social Security Ruling 88-13, issued July 20, 1988, but effective August 20, 1980, the Secretary argues that it was unnecessary to provide specific justifiable reasons to discredit Watson's pain testimony because she failed to establish any medically determinable physical or mental impairment. Id. at 3-4; see also Hammock, 867 F.2d at 1213 (claimant must submit objective medical findings establishing medical impairments that 'could reasonably be expected to produce the pain' "), quoting 42 U.S.C. § 423(d) (5) (A); 20 C.F.R. Sec. 404.1529 (1988).

We have already explained that the Secretary erred in rejecting Dr. Adelberg's clinical and laboratory diagnoses of disability without explaining why. The Secretary also applied an incorrect legal standard to Dr. Adelberg's clinical diagnoses. To the extent that they do not conflict with Dr. Potter's report, these diagnoses could provide the "objective medical findings establishing medical impairments" required to support Watson's excess pain testimony. See Hammock, 867 F.2d at 1213. Even if on remand the Secretary determines that the reports of Drs. Potter and Adelberg do not establish the severe medical impairment necessary to show disability, they nonetheless might constitute adequate objective medical findings to support Watson's high level of pain testimony. While Dr. Potter's report may indicate that Watson could resume her normal activities in two months, it is ambiguous whether it rules out the possibility that she will experience pain associated with objective medical findings in two months. On remand, therefore, the Secretary is directed to resolve this ambiguity, and, if necessary, make proper findings regarding Watson's pain testimony.

Finally, Watson contends that the Secretary erred in failing to make findings on her RFC and the demands of her prior jobs. The Secretary acknowledges that no specific findings were made. He contends, however, that no such findings were necessary because review of Watson's medical record indicated that she had no severe physical impairment; the Secretary also argues that implicit findings are evident in the determination that she could return to her former job or perform other substantial gainful activity.

Under 20 C.F.R. Sec. 404.1520(a) (1988), the Secretary follows a set order of steps to determine whether a claimant is disabled; the process may end after any step if the Secretary determines that the claimant conclusively is or is not disabled. Where a claimant is not working, the Secretary determines whether the claimant has shown a severe impairment or combination of impairments which significantly limits the claimant's physical or mental ability to do work. Id. Sec. 404.1520(b) & (c). If a claimant has a severe impairment, the next step is to review her RFC and prior job demands. Id. Sec. 404.1520(e). As the language of the regulation makes clear, it is unnecessary to reach the RFC step if a conclusive disability determination is made at an earlier step. Id. Sec. 404.1520(a).

Here, the Secretary argues that the ALJ and Appeals Council made such a conclusive determination at an earlier step. Our decision to remand this case reflects the fact that we are unable to tell from the present record whether this conclusive determination is supported by substantial evidence. Even in cases where we have decided that the Secretary's "conclusive determination" was incorrect, we have declined to make the RFC and prior job demands findings ourselves. E.g., Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir. 1983). Here, too, it is not our function to make those findings. On remand, unless he again finds no severe impairment, the Secretary is directed to make the appropriate RFC and prior job demands findings.

The Secretary's alternative argument that the ALJ implicitly determined RFC and prior job demands also fails. This argument contradicts the previous argument that the ALJ did not need to reach the step of determining RFC and prior job demands. In any event, it would make little sense to affirm this aspect of the Secretary's decision in light of our disposition of the rest.

Watson's request for attorneys' fees is denied. See Hammock, 867 F.2d at 1216.

REVERSED AND REMANDED.

Note: 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.