Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 1344 (9th Cir. 1989)

Patrick C. MALONE, Plaintiff-Appellant,v.Louis W. SULLIVAN, M.D.,*  Secretary of Healthand Human Services, Defendant-Appellee.

No. 88-4366.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 1989.Decided Jan. 29, 1990.

Before CANBY, WIGGINS and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Malone challenges the district court's granting of summary judgment in favor of the Secretary of Health and Human Services ("Secretary"), in which it found that Malone was not entitled to social security disability benefits. Malone contends that the Secretary's decision to deny benefits is not based upon substantial evidence and that the Secretary failed to apply the proper legal standard. Specifically, Malone charges that the Secretary failed to make sufficient findings to discredit his subjective pain testimony, improperly relied on an unsupported vocational expert's testimony, and improperly applied the Medical-Vocational Guidelines ("the grids"). We reverse with directions.

JURISDICTION

The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291.

BACKGROUND FACTS

Malone is a 54 year-old man with an eighth grade education. He served in the Army from 1951 to 1953, and subsequently worked as a bricklayer for thirty years. He alleges disability from pain he experiences due to back injuries, circulatory problems and vascular disease. He is also an alcoholic, with weight problems, and a three-pack-a-day smoking habit.

In 1977, Malone suffered a serious back injury when he was buried under a pile of bricks. He received chiropractic treatments before returning to work. He reinjured his back at work when he picked up a pallet of bricks in September, 1978. Malone was hospitalized and placed in traction. He also underwent physical therapy and treatment for alcoholism. Malone has been unemployed since the second injury.

Dr. Jack R. Watkins, M.D., was his treating physician for all relevant time periods. Dr. Watkins prescribed a conservative treatment program for Malone that included injections of DepoMedrol approximately every thirty days for hip and back pain.

On September 24, 1979, Dr. Watkins wrote a letter to the Veterans Administration and a letter to Fred Cutler, Malone's vocational rehabilitation counselor. In those letters, Dr. Watkins stated that Malone suffered from back pain and that x-rays revealed considerable degenerative disc disease. Dr. Watkins reported that Malone could not perform bricklaying and should limit his lifting. On April 28, 1980, Dr. Watkins noted that Malone had complaints of neck pain, a tingling sensation in his arm and left hand numbness.

On November 9, 1980, Fred Cutler, Malone's vocational rehabilitation counselor, filed a report terminating vocational services for Malone. The report indicated that Malone, while unable to continue bricklaying, was able to perform light work. It also stated that Malone was "a good candidate for a training experience," but that "it was painfully obvious that [Malone] had no desire to pursue a new occupation." Thus, Cutler concluded that there was "very little else that rehabilitation services had to offer this injured worker."

On February 9, 1981, Malone was examined by a panel of physicians for state workman's compensation purposes. He stated at that time that he could lift 20 pounds and sit or stand for a 30 minute period. The panel diagnosed lumbosacral strain, trochanteric bursitis, obesity and right shoulder pain.

On January 6, 1982, Dr. Watkins completed a physical capacity assessment report in which he stated that Malone had lower back difficulty and trochanteric bursitis, and was therefore restricted from "persistent heavy lifting and excessive bending." The report went on to state that there were no other restrictions, and that Malone "is certainly able to seek gainful employment."

On March 4, 1982, Dr. Watkins filled out another physical capacity assessment report which indicated that Malone was experiencing pain in his lower back, but that Dr. Watkins had treated the pain with a DepoMedrol injection. He again stated that in his opinion, Malone was "disabled only from doing heavy lifting and excessive bending" but could otherwise "seek gainful employment." Another panel of physician's found Malone's condition unchanged when it reevaluated and retested him on September 29, 1982. Malone told that panel that his back problems had subsided after injections from Dr. Watkins. He also indicated that he was having no problems whatsoever with his neck pain and hand numbness. However, he stated that he was still experiencing gluteal pain.

Malone applied for disability benefits on December 3, 1981, alleging a disability onset date of September 28, 1978 due to back and hip problems. On January 14, 1982, the Disability Determination Service ("DDS") denied his application. Malone then requested a hearing before the Administrative Law Judge ("ALJ"). The hearing took place on January 18, 1983. At that hearing he testified that he was experiencing burning pain in his neck and upper back. He stated that Dr. Watkins had been treating the pain with injections and the pain killer, Lomax. Before the ALJ issued his opinion, Malone was given the option of having his case returned to the DDS for a new decision. Malone exercised that option and requested the remand. On October 31, 1983, the DDS again denied Malone's application for disability benefits.

Malone then filed a request for a hearing which was conducted before an ALJ on February 10, 1984. The ALJ denied Malone's claim for benefits on August 27, 1984. The ALJ found that Malone was unable to perform his prior work as a bricklayer, but was able to perform light work, and was therefore not disabled.

Malone sought review of the ALJ's decision before the Appeals Council. The Appeals Council denied this request on February 20, 1985.

On May 7, 1985, Malone filed suit in the district court seeking reversal of the ALJ's decision to deny benefits. On October 29, 1986, the district court vacated the ALJ's decision and remanded the case to the Secretary for further review and so that the Secretary could articulate specific reasons for disbelieving Malone's pain testimony. The Appeals Council vacated its denial of review and remanded the case to the ALJ for further proceedings consistent with the district court's order.

A third hearing before the ALJ was conducted in April 8, 1987. Tom Moreland, a vocational expert, testified at this hearing. Moreland stated that in his opinion, Malone was able to perform light work. In addition, two supplementary documents were submitted by Malone for consideration at this hearing. One was a letter from Dr. Jeckle, Malone's treating physician since 1985, that indicated that Malone had been disabled since at least September of 1982, and probably since 1978. The other was a report from vocational specialist Steve Hamman. Hamman relied upon the evaluation of a physical therapist, Sarah Taylor, and found that Malone was disabled.

The ALJ denied Malone's disability benefits on June 16, 1987. He found that there was no objective medical evidence of cardiovascular impairment before September 30, 1982, the date on which Malone was last insured. He also stated that Malone's complaints were not credible in light of the "exertional limitations placed upon him by his treating physician, Dr. Watkins." He held that Malone was capable of performing light work, and could return to his job as a bricklayer. Malone appealed.

On October 20, 1988, the Council affirmed the denial of Malone's disability benefits, but modified the findings of the ALJ. The Council held that Malone could engage in light work, but that light work did not include his prior occupation as a bricklayer. The Council relied on the grids in determining that Malone was not disabled.

DISCUSSION

We review the district court's grant of summary judgment de novo. McAllister v. Sullivan, 880 F.2d 1086, 1088 (9th Cir. 1989). The Secretary may deny benefits if his findings of fact are supported by "substantial evidence," 42 U.S.C. § 405(g), and his decisions are based upon the proper legal standard. Magallanes v. Bowen, 881 F.2d 747, 750-51 (9th Cir. 1989); Stewart v. Sullivan, 881 F.2d 740, 743 (9th Cir. 1989). "Substantial evidence" is defined as " 'more than a scintilla' ... but 'less than a preponderance.' " Desrosiers v. Secretary of Health and Human Serv., 846 F.2d 573, 576 (9th Cir. 1988), (quoting Richardson v. Perales, 402 U.S. 389, 402, 91 S. Ct. 1420, 1428, 28 L. Ed. 2d 842 (1971), and Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975)). It is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). The court may not overturn the ALJ's decision if the evidence can support either interpretation. Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

The claimant has the burden of proving that he is disabled within the meaning of 42 U.S.C. § 423(d) (1) (A), and that he is therefore entitled to benefits. Once he has met his burden, the burden then shifts to the Secretary to show that there are other types of work in the national economy that the claimant is capable of performing "given [the claimant's] residual functional capacity, age, education and work experience." Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989).

Malone last met the special earnings requirement of the Act on September 30, 1982. Thus, Malone had the burden of showing that he was disabled within the meaning of the Act on or before September 30, 1982.

Malone met his burden of proving an initial disability by establishing a prima facie case that impairments prevented him from doing his previous job. See Gamer v. Secretary of Health and Human Serv., 815 F.2d 1275, 1278 (9th Cir. 1987).1  The burden then shifted to the Secretary to prove that Malone was capable of performing light work. Malone contends that the Secretary did not meet that burden because he did not take Malone's pain testimony into account in finding that Malone was not disabled.

Once Malone presented "objective medical findings establishing an impairment th at would normally produce a certain amount of pain," the Secretary was not free to disregard the claim of excess pain unless he made specific findings of fact to justify his decision. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (per curiam). See also Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989); Varne y v. Secretary of Health and Human Serv., 846 F.2d 581, 584 (9th Cir. 1988) ("Va rney I"); Magallanes, 881 F.2d at 751.

The ALJ failed to sufficiently justify his discrediting of Malone's pain testimony. In discounting Malone's testimony, the ALJ merely stated that he "did not find the claimant's hearing testimony regarding his exertional limitations due to his back problems particularly credible in view of the exertional limitations placed upon him by his treating physician, Dr. Watkins." Although the ALJ did note that there was evidence of a heart condition and some impairment of the fine finger dexterity, he indicated that "those conditions did not exist on or before September 30, 1982."

We give particular deference to the treating physician's opinion. See Boyes v. Sullivan, No. 88-15342, slip op. 14193, 14201 (9th Cir. December 7, 1989). In Boyes, we said that the treating physician's opinion must be given special weight and may only be disregarded for "specific, legitimate reasons based on the evidence in the record." Id. Nevertheless, we find that simply referencing the treating doctor's opinion is insufficient to justify a decision to discredit a claimant's pain testimony. The ALJ must point to specific portions of the treating doctor's opinion or records that indicate that the treating doctor has considered the claimant's pain and nevertheless finds that the claimant is not disabled as a result. Only then may the ALJ rely upon the treating doctor's opinion to justify his discrediting of the claimant's pain testimony.

In this case, the ALJ failed to detail where Dr. Watkins, in his reports and records, considered Malone's pain and nonetheless concluded that Malone was able to perform anything other than "persistent heavy lifting or excessive bending." While, as noted above, the ALJ is to give special weight to the treating physician's opinion, and there appears to have been evidence in the record to show that Dr. Watkins' considered Malone's pain when he found that Malone could perform light work, the ALJ fails to state what evidence he relied upon. We therefore find that the ALJ has failed to sufficiently justify his discrediting of Malone's pain testimony.

We also find that the Secretary cannot rely upon vocational expert Tom Moreland's testimony that Malone could perform light work since the hypothetical that the ALJ posed to Moreland did not include Malone's pain testimony. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (original emphasis) (" [h]ypothetical questions posed to the vocational experts must set out all the limitations and restrictions of the particular claimant, including, for example, pain."); Magallanes, 881 F.2d at 756 (vocational expert's testimony has "no evidentiary value if the assumptions in the hypothetical are not supported by the record").2 

CONCLUSION

The Secretary has not articulated his reasons for discrediting Malone's subjective pain testimony in language that sets forth sufficiently specific findings.

However, this is not a case where the record has been fully developed.3  Nor is it a case where it is clear that Malone's claim of extensive pain is supported by the treating physician. See Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989). In short, it is not a case where the evidence inspires a degree of confidence as to the proper result that would permit us to reach a final conclusion regarding Malone's excess pain. That decision is for the Secretary. Thus, despite the already lengthy process, justice to both parties requires that this case be remanded to the Secretary with instructions that he set forth specific findings that detail the reason that Malone's excess pain testimony is rejected, if upon further reflection it is.

A mere cataloging of reports will not suffice. If, for example, the ALJ determines that the treating physician considered Malone's pain testimony, and in so doing still found Malone able to work, the ALJ should so state, and should indicate his reasons for crediting Dr. Watkins' reports.

We are therefore constrained to reverse the decision of the district court and to return this case to that court with instructions that it be remanded to the Secretary for further proceedings consistent with this disposition.

REVERSED AND REMANDED.

 *

Louis J. Sullivan is substituted for his predecessor Otis R. Bowen, Secretary of Health and Human Services pursuant to Fed. R. App. P. 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 9th Cir.R. 36-3

 1

The Appeals Council found that Malone was not capable of performing his prior job as a bricklayer

 2

In addition, we note that if Malone's pain testimony were accepted the Secretary erred in mechanically applying the grids. Desrosiers, 846 F.2d at 579. It appears to us that Malone claims to have suffered from both exertional and non-exertional pain. See Cooper, 880 F.2d at 1155-56. Since non-exertional pain can affect the disability determination in a manner not considered by the drafters of the grids, the ALJ must "examine independently the additional adverse consequences resulting from the nonexertional impairment." Id. at 1156

 3

For example, even assuming that the pain testimony is true, we are not in a position to decide whether Malone could have performed "sedentary work" in September of 1982. See Varney v. Secretary of Health and Human Serv., 859 F.2d 1396, 1400 (9th Cir. 1988) (Varney II)