Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1988)

MEMORANDUM^* 

The district court found that substantial evidence in the record supported the ALJ's disability decision. We affirm.

* Appellant Rogers has claimed disability since May 1985 because of diabetes and problems with his vision, heart, and pancreas. Rogers applied for disability benefits on February 20, 1986. Because appellant had not sought medical treatment since his disability allegedly began, the state processor of Social Security Administration claims sent Rogers to Dr. Alan Ertle to establish a medical record. Dr. Ertle diagnosed diabetes, chest pain, pancreatitis and related nausea, night sweats, shortness of breath, and blurred vision.

Dr. Ertle examined appellant in March 1986. At the time, appellant's only medication was glucotrol for diabetes mellitus. During this examination, Rogers told Dr. Ertle that he had been told at age seventeen that he had a bad heart. Appellant also complained of episodes of rapid heart beat. Dr. Ertle diagnosed cardiac disease. During the examination, Rogers took a treadmill stress test. Appellant became dizzy and stopped after five minutes, yet appellant reached 95% of his maximum predicted heart rate.

Dr. Ertle also diagnosed "probable" chronic obstructive pulmonary disease because of appellant's 21-year smoking habit. For confirmation, Dr. Ertle recommended further testing. Subsequent pulmonary testing by the ALJ was within normal limits. These two tests are the only objective data available in this case.

Dr. Ertle concluded that Rogers had a severe work limitation, concluding that appellant could sit for six hours and stand for two hours during a work day, could lift and carry up to five pounds, could not push or pull leg controls, could not squat, crawl or climb, and could not be in unprotected heights or exposed to dust fumes or gases. However, Dr. Ertle testified that Rogers told him that Rogers' main problem was dizziness and shortness of breath, and that he did not believe that his chest pain prevented him from working.

The ALJ retained two other physicians, Dr. John Rollings and Dr. William Ford, to review the medical evidence to make the disability determination. The two physicians reached conflicting conclusions. Rollings concluded that appellant's physical capacity was unlimited while Ford concluded that appellant's physical capacity was "at least" light.

At the hearing, appellant testified that he helps his wife shop, that he can sit for fifteen to twenty minutes before he gets worn out, that he could lift up to ten pounds, that he had lost almost forty pounds over the last two years, and that he spent the majority of the day sleeping. Appellant also was on several prescribed medications at the time of the hearing. By decision dated May 21, 1987, the ALJ denied disability benefits, determining that the appellant was capable of sedentary-level work.

On June 21, 1987, appellant requested that the Appeals Council review the ALJ's decision. The Appeals Council issued its decision refusing review of the ALJ's decision on August 10, 1987.

Appellant then sought judicial review of the ALJ's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3), filing a complaint on October 9, 1987. On June 6, 1988, the district court found that substantial evidence in the record supported the ALJ's disability decision and dismissed appellant's action.

Appellant then moved to amend the district court's judgment under Fed. R. Civ. P. 59(e).¹  By order dated August 23, 1988, the district court denied the motion. Appellant timely filed his notice of appeal to this court on August 31, 1988.

II

The ALJ must support his decision with substantial evidence in the record. Winans v. Bowen, 853 F.2d 643, 644 (9th Cir. 1987). However, the ALJ has the duty to resolve conflicts in the evidence. Id. at 647.

Appellant first argues that the ALJ erred when he failed to deem Dr. Ertle as either Rogers' treating physician, examining physician, or both. Under Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) appellant thus urges the ALJ would be required to give clear and convincing reasons when he ALJ rejected Dr. Ertle's testimony.

As noted in Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988), the nature of the relationship between the appellant and the physician determines whether the physician is a treating physician.

A claimant's treating source is his or her own physician.... who has provided the individual with medical treatment ... and who has or had an on-going [sic] treatment and physician-patient relationship. The nature of the physician's relationship with the patient, rather than its duration or its coincidence with a claim for benefits, is determinative.

Schisler, 851 F.2d at 46.

The record discloses that the district court found that appellant and Dr. Ertle have not established such a relationship. The rule implies that the patient seeks the physician on the patient's own initiative. However, appellant saw Dr. Ertle only because the state agency referred him to Dr. Ertle to establish a medical record for the administrative hearing. Dr. Ertle's treatment consisted solely of medical prescriptions given during the two visits to Dr. Ertle's office. As the district court found below, this does not seem to be the type of on-going patient relationship contemplated in Schisler.

Appellant next argues that the ALJ improperly dismissed Dr. Ertle's testimony as his examining physician. See, e.g., Roberson v. General Motors Corp., 801 F.2d 176, 178, (6th Cir. 1986) (for disability hearing purposes, examining physician elicits a complete medical history, reviews the symptoms, and conducts a complete physical examination).

Appellant also argues that Drs. Ford and Rollings are not examining physicians because they did not physically examine appellant. Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) (two staff physicians who looked solely at medical reports without personally examining disability applicant deemed non-examining physicians). Accordingly, Rogers argues, Dr. Ertle's diagnosis as examining physician should be given greater weight. Id.

Even if Dr. Ertle were deemed an examining physician, the ALJ properly ruled on the evidence. Dr. Ertle did not base his opinion on substantive, objective medical evidence but on appellant's oral history. As the ALJ noted, appellant's testimony and the opinions of the other physicians conflicted with Dr. Ertle's opinion. Therefore, the ALJ was not required to give clear and convincing reasons for disregarding Dr. Ertle's opinion. Cf. Davis v. Heckler, 868 F.2d 323, 328 n. 6 (9th Cir. 1989) (clear and convincing standard appropriate when treating physician gives uncontradicted opinion based on substantive, objective medical evidence).

Finally, appellant argues that the ALJ failed to consider his non-exertional restrictions in determining his ability to do sedentary work. Again, conflicting evidence was presented to the ALJ. Dr. Ertle made his opinion regarding non-exertional environmental restrictions after a preliminary test diagnosing probable chronic pulmonary disease. However, subsequent testing by the Social Security Administration diagnosed normal pulmonary activity. Further, Dr. Ertle reported that Rogers told him he sometimes cuts firewood using a chainsaw, an activity requiring some exertion and one emitting exhaust fumes and sawdust. Finally, both Dr. Rollings and Dr. Ford concluded that plaintiff has no environmental restriction. The ALJ noted appellant's testimony and claimed nonexertional limitations before reaching a decision. Since the ALJ has the duty to resolve conflicts in the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982), the ALJ properly determined appellant's capacity for the full range of sedentary work.

AFFIRMED.