Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1987)

MEMORANDUM^* 

Claimant-Appellant Mack Kimberling appeals from the district court's order affirming the decision of the Secretary of Health and Human Services ("Secretary") denying his application for disability benefits on the ground that his physical impairments were not of disabling severity prior to the expiration date of his insured status. We affirm.

Kimberling, who worked for over thirty years as a carpenter and construction contractor, last engaged in substantial gainful employment in June 1982. Kimberling's claim for disability benefits rests on his allegation that he suffers from knee and back problems which necessitated his retirement from the construction trade and continue to cause him discomfort and restrict his daily activities. Kimberling's insured status for social security benefits expired on March 31, 1984.

Alleging a disability onset date of September 15, 1984, Kimberling's initial benefits application was summarily denied for failure to show the existence of a disabling condition on or before the March 1984 expiration of his insured status. In his request for reconsideration, Kimberling amended the disability onset date in his application to June 1982. Kimberling's claim was again denied. Kimberling subsequently requested, and was granted, a disability hearing before an administrative law judge ("ALJ").

At the administrative hearing, Kimberling produced anecdotal and medical evidence in support of his claim that his knee and back problems reached disabling severity prior to March 1984. Kimberling testified that while he had experienced low back pain and joint stiffness since 1978, the pain in his back and right knee began to limit his work activities to primarily that of a supervisor beginning in 1981. While arthroscopic knee surgery in April 1981 provided temporary relief, Kimberling stated that the right knee's condition once again worsened by early 1982 as pain and weakness would cause the knee to occasionally "give way." Kimberling also described a steadily worsening pain in his lower back which caused him extreme discomfort when bending, stooping, or lifting objects weighing more than twenty pounds. Sitting for periods greater than one hour aggravated this back pain and thus forced him to frequently alternate between sitting, standing, and lying down. Kimberling stated that he found some relief from nonprescription-strength pain relievers and a back brace, and during periods of extreme discomfort, from chiropractic manipulations. Finally, in June 1982, Kimberling claims that the pain from his degenerating knee and back conditions forced him to quit his construction work altogether.

Medical evidence presented to the ALJ consisted of medical reports and diagnosis of Kimberling's treating physicians and chiropractor made both before and after the expiration of his insured status in March 1984. Dr. Spady, an orthopedic surgeon treating Kimberling's knee condition, noted Kimberling's complaints on March 15, 1981 of a "catching sensation" and pain in his right knee. An X-ray revealed the presence of a "loose body" in the knee which Dr. Spady successfully removed by arthroscopic surgery the following week. While this surgery brought initial relief, Kimberling complained of increased tenderness and swelling on the medial side of his knee by June 1981. When, over the course of the next several months, cortisone injections into Kimberling's knee failed to provide more than temporary symptomatic relief, Dr. Spady scheduled an arthrogram. This arthrogram on February 12, 1982 revealed an extensive tear in the medial meniscus of Kimberling's right knee. While initially suggesting that Kimberling "give serious consideration" to surgical removal of the torn meniscus, Dr. Spady stated on March 10, 1982 that Kimberling described his knee as feeling "somewhat better." Dr. Spady thus concluded that "we are just going to let him go ahead and see how he gets along. If he has recurrent trouble consideration might be given for exploration and removal of the cartilage. [p ] He will be seen prn."¹ 

Kimberling also presented pre-1984 medical evidence with respect to his back condition. In a May 1978 physical examination, internist Dr. Sanders notes that Kimberling complained of some backaches and stiffness of joints which Dr. Sanders attributed to "a deteriorated disc L5 and S1." Dr. Sanders, however, concluded on the basis of x-ray examinations that "it does not look too bad" and made no recommendation that Kimberling modify his activities other than suggesting that he watch his diet and exercise regularly. In addition, Kimberling's treating chiropractor, Dr. Brinker, testified at the administrative hearing that Kimberling had come to see him in June 1982 complaining of chronic low back pain and increasing work-related disability. Through pelvic and spinal X-rays, Dr. Brinker diagnosed Kimberling as suffering from degenerative disc disease, a healed compression fracture, and some osteoarthritic spurring. Dr. Brinker concluded that this condition rendered Kimberling disabled and unable to work in the construction trade with the exception of, perhaps, limited supervisory-type activities.²  Dr. Brinker also testified that while Kimberling's condition was not correctable, occasional chiropractic treatment through 1986 provided Kimberling limited relief and increased mobility when "he just couldn't ambulate."

Kimberling also presented medical reports concerning his back condition from his treating physicians with respect to examinations and diagnoses made after the expiration of his insured status. After severely injuring his lower back in a September 1984 hunting accident, Kimberling was hospitalized for traction and treatment of lower back pain. When a CT scan revealed a ruptured disc, Dr. Melgard, a neurosurgeon, performed a lumbar laminectomy on October 31, 1984. Kimberling made what Dr. Melgard termed "good [post-operative] progress" and released Kimberling from his care in February 1985. Additionally, Kimberling submitted a March 1986 evaluation of Kimberling's back condition by Dr. Paluska, an orthopedic surgeon. Dr. Paluska concluded, after examining Kimberling, that he had clinically significant degenerative arthritis of the entire lumbar spine area, and was, therefore, not physically capable of excessive bending, stooping, or lifting in excess of twenty pounds. Dr. Paluska further stated that Kimberling's back prevented him from any climbing, crawling, or walking over rough terrain for prolonged periods.

By decision dated May 28, 1987, the ALJ denied Kimberling's disability application on the ground that Kimberling had failed to establish the presence of a "disability" within the meaning of the Social Security Act prior to the expiration of his insured status in March 1984. The Appeals Council declined to review the ALJ's decision, thus making it a final decision of the Secretary in August 1987.

Kimberling then sought judicial review of the Secretary's denial of his disability application, claiming that the Secretary's disability determination was not supported by substantial evidence on the record. The district court denied Kimberling's claim and he now appeals. We must affirm the Secretary's disability determination unless based on legal error or unsupported by substantial record evidence. See, e.g., Smith v. Bowen, 849 F.2d 1222, 1224 (9th Cir. 1988); Howard v. Heckler, 782 F.2d 1484, 1486-87 (9th Cir. 1986).

The claimant bears the burden of proving a disability within the meaning of the Social Security Act ("Act"). Howard, 782 F.2d at 1486; Swanson v. Secretary of Health and Human Services, 763 F.2d 1061, 1064 (9th Cir. 1985); Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1985); see also 20 C.F.R. Sec. 404.1512. The Act defines a compensable "disability" as the "inability to engage in any substantial gainful employment by reason of a medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d) (1). In order to meet this definition, claimants must show that their "physical or mental impairment" results from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d) (3).

In light of this background, we find that substantial evidence supported the Secretary's determination that Kimberling did not suffer from a "disability" within the meaning of the Act prior to the expiration of his insured status on March 31, 1984. Although Kimberling's subjective complaints of back and knee pain, coupled with Dr. Brinker's evaluation and treatment, indicate that he suffered some degree of physical impairment prior to March 1984, Kimberling failed to present medical evidence which established these impairments as reaching disabling severity prior to this date.

Fundamental to the proof of any disability claim is medical evidence supporting the claimant's asserted mental or physical impairment. See Howard, 782 F.2d at 1488 (subjective complaints of pain must be accompanied by medical evidence and can be disregarded if unsupported by clinical findings); Owens v. Heckler, 770 F.2d 1276, 1281 (9th Cir. 1985) (same); Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985) (same); see also 20 C.F.R. Secs. 404.1512-.1518 (detailing medical evidence necessary to prove disability within terms of Social Security Act). Yet none of the medical reports by Kimberling's treating physicians prior to 1984 diagnosed either his back or knee conditions as restricting his activities or otherwise posing limitations of disabling quality.³  Dr. Sanders' 1978 physical examination report, while noting some evidence of disc deterioration at L5-S1, concluded that the condition "did not look too bad" and placed no restrictions on Kimberling's activities. When Dr. Spady released Kimberling from his care in March 1982, he also placed no limits on Kimberling's activities and noted only that Kimberling should return for further treatment as dictated by the condition of his knee. Kimberling apparently sought no treatment from Dr. Spady after March 1982.

The crux of Kimberling's disability claim thus rests on the medical evaluations expressed by Kimberling's chiropractor, Dr. Brinker. The ALJ however properly discounted the significance of Dr. Brinker's conclusion that Kimberling was "disabled" and unable to work in the construction trade by June 1982. While a chiropractor's report may be given some weight in determining the extent of a claimant's disability, they do not constitute a "medically acceptable" source of disability reports. 20 C.F.R. Sec. 404.1513(a), (e). This is particularly true, where, as here, these chiropractic reports appear to contradict the diagnostic conclusions of medically acceptable sources--licensed physicians--as to the extent or severity of a claimant's disability. Cf. Swanson, 763 F.2d at 1064-65 (within Secretary's discretion to resolve conflicting medical evidence); Parker v. Bowen, 788 F.2d 1512, 1520-21 (11th Cir. 1986) (en banc) (credibility determinations by administrative trier-of-fact entitled to special deference by reviewing court); see also Rivera v. Heckler, 598 F. Supp. 203, 206-07 (E.D. Pa. 1984) (affirming ALJ's rejection of chiropractor's diagnosis when conflicted with other medically acceptable sources). Finally, we note that even were the Secretary to weigh Dr. Brinker's reports in accordance with other medically acceptable sources, the lack of detail in these somewhat conclusory one-page reports provides little assistance to the Secretary in his disability determination. See 20 C.F.R. Sec. 404.1513(b)-(d).

In affirming the Secretary's determination that Kimberling suffered from no disability within the meaning of the Act prior to March 1984, we do not discount the discomfort or impairment Kimberling suffered from his knee and back conditions prior to the expiration of his insured status. Congress, however, has chosen to define compensable disabilities in terms of "medically determinable" physical and mental impairments which Kimberling did not establish by sufficient medical proof.

AFFIRMED.