Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1095 (9th Cir. 1989)

Marilyn M. MAJOR, Plaintiff-Appellant,v.Louis W. SULLIVAN,**  Secretary, Department ofHealth and Human Services, Defendant-Appellee

No. 88-4003.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 6, 1989.* Decided Nov. 20, 1989.

Before NELSON, BOOCHEVER and TROTT, Circuit Judges.


MEMORANDUM*** 

Marilyn Major, appeals the Secretary of Health and Human Services' denial of widow's disability benefits on the grounds that the Administrative Law Judge disregarded medical evidence demonstrating her disability. The court below upheld the Secretary's decision to deny benefits. We affirm.

DISCUSSION

This court reviews the district court's decision to affirm the Secretary's denial of benefits de novo. See Gamer v. Secretary of Health and Human Serv., 815 F.2d 1275, 1278 (9th Cir. 1987). The Secretary's decision is affirmed if it is supported by substantial evidence and is free from legal error. Kellar v. Bowen, 848 F.2d 121, 123 (9th Cir. 1988); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). Substantial evidence "does not mean a large or considerable amount of evidence, but rather 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Pierce v. Underwood, 108 S. Ct. 2541, 2550 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). Although this "standard of review is not a rubber stamp for the Secretary's decision", Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984), " [w]here evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

II. Disability Standard Under Social Security Regulations

Ms. Major, as a widow, must satisfy a stricter disability standard than a wage earner. See, e.g., Sprague v. Bosen, 812 F.2d 1226, 1229 (9th Cir. 1987). A widow of an insured wage earner is entitled to benefits under 42 U.S.C. § 402(e) (1982 & Supp. V 1987) if she has a disability which "under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity." 42 U.S.C. § 423(d) (2) (B) (1982 & Supp. V 1987) (emphasis added). A wage earner, in contrast, will be found to be disabled if his impairments "are of such severity that he not only is unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work...." 42 U.S.C. § 423(d) (2) (A) (1982 & Supp. V 1987) (emphasis added). A widow, then, is not only required to prove that she is incapable of any gainful activity, substantial or not, but pertinent regulations specify that only her impairments will be considered. The Department does not consider age, education or work experience. 20 C.F.R. Sec. 404.1577 (1988).

Ms. Major has the burden of proving disability within the meaning of the Social Security Act. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). It is not enough, however, for her merely to prove that she suffers from various ailments. Even a severely impaired individual is not disabled within the meaning of the statute and implementing regulations unless she provides "specific clinical findings" showing that she suffers either from an impairment listed in Appendix 1 of the Secretary's regulations or from one or more unlisted impairments that are "medically equivalent" to a Listed Impairment. 20 C.F.R. Sec. 404.1578 (1988); Listing of Impairments, 20 C.F.R. part 404, subpt. P, app. 1 (1988).

The two reviewing doctors hired by the Social Security Administration presented the only evidence at the hearing that focused on Ms. Major's eligibility. Dr. Kelly's report stated that Ms. Major's condition was not the same as or equivalent to the Listing of Impairments. The second doctor, Dr. Levenson, suggested that he might have found her impairment to be equivalent but that he needed more information from the treadmill test.

Ms. Major argues that the ALJ ignored Dr. Levenson's evidence because she refused to take the treadmill test. She claims that her refusal to take the treadmill test is permitted under two exceptions in the Social Security regulations. She argues either that she had a good reason for refusing under 20 C.F.R. Sec. 404.1518(b) or that she is exempt from the test under the Limitations on Exercise Testing, 20 C.F.R. part 404, Subpt P. Appendix 1, 4.00(g) (3). Her argument is that because she was not required to submit to the treadmill test, its absence should have no effect on the determination of her eligibility. Without the request for the test, Dr. Levenson's testimony is simply that Ms. Major's impairments generally fit under two categories in the List of Impairments. It is this conclusion that Ms. Major argues was not considered adequately in the decision to deny her benefits.

Ms. Major errs in believing that if she did qualify under one of the exceptions we would reverse the ALJ's decision. The ALJ did not deny benefits due to her failure to take the test. Ms. Major requested that her case be decided without the test. The ALJ found that, on the basis of the hearing record, her impairment could not be shown to meet or equal the Listing. She only was penalized for not taking the test to the extent that the record was inconclusive without the treadmill results.

As noted by Ms. Major, the ALJ did not interpret Dr. Levenson's statements as a conclusion that Ms. Major's ailments fit the List of Impairments. Instead, the ALJ interpreted Dr. Levenson as being unable to conclude anything about the case. Under this interpretation, the record contained no evidence that Ms. Major qualified as disabled under the Act and the ALJ was obligated to deny benefits.

Even if this court required the ALJ to interpret Dr. Levenson's statement as fully supporting Ms. Major's claim, the ALJ would still be within his discretion in denying benefits. When two reviewing doctors disagree, the ALJ must choose one's testimony over the other. A "reasonable mind [could] accept" the conclusion of Dr. Kelly that Ms. Major's disabilities did not meet the severity of the Listed Impairments, especially when the treating physicians are silent as to whether Ms. Major has a qualifying disability. Pierce, 108 S. Ct. at 2550.

For the reasons explained above, we AFFIRM.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Louis W. Sullivan, M.D., Secretary of Health and Human Services, has been substituted for his predecessor, Otis R. Bowen, in accordance with Federal Rule of Appellate Procedure 43(c) (1)

 ***

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