Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1983)

MEMORANDUM^*** 

Charles J. Weston challenges on appeal the district court's summary judgment in favor of the Secretary of Health and Human Services on his claim for disability benefits under 42 U.S.C. § 405(g) (1982). Because the Secretary's decision is supported by substantial evidence, we affirm.

* Weston primarily has problems with his back and with his respiratory system, and he has hearing and mental impairments as well. He has a ninth grade education. Weston originally filed applications for Supplemental Security Income benefits (SSI) and disability benefits on April 29, 1982 when he was forty-four-years-old. These claims were denied at the initial and reconsideration stages of review. On October 6, 1983, he again applied for benefits which were denied. In March of 1984, he refiled his applications, and they were denied initially and upon reconsideration.

In September of 1984, Weston requested review by an Administrative Law Judge ("ALJ"). The ALJ found no need for a hearing, and decided that Weston had been disabled since June 12, 1980. The Social Security Administration later learned in 1985 that Weston's earning record revealed earnings for 1980 and 1981 of $22,803 and $14,728 from the operation of a business in which he was self-employed. The Appeals Council reopened Weston's case for further consideration.

Upon reconsideration, a second ALJ also determined that Weston was disabled. However, he adjusted the first day of disability to October 1, 1981 to compensate for the income Weston earned prior to that date. The Appeals Council rejected the decision of the second ALJ, and in September of 1987 it issued the final decision of the Secretary. It found that Weston had withdrawn his SSI application and that Weston was not disabled. Weston appealed to the district court which held that the Secretary's decision was supported by substantial evidence.

II

Weston's objections on appeal are both meritless. He argues (A) that the Appeals Council could not substitute its opinion for the decisions of the ALJs, and (B) that the decision of the Appeals Council was not supported by substantial evidence. The judgment of the district court is subject to de novo review; the decision of the Secretary should be examined to ensure that it is supported by substantial evidence and that it is free of legal error. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989).

* Weston completely misreads this court's decisions to suggest that the Appeals Council cannot set aside decisions of ALJs merely because it disagrees with them. The cases cited by Weston deal primarily with the deference that district judges owe to ALJs. See, e.g., Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Contrary to Weston's assertions, the relationship between the Appeals Council and ALJs differs substantially from the relationship between the district court and ALJs. In Razey v. Heckler, 785 F.2d 1426, 1427-1429 (9th Cir. 1986), modified, 794 F.2d 1348 (9th Cir. 1986), we explained that the Appeals Council is free to reject determinations of ALJs even when they are supported by substantial evidence.

One limitation to the Razey rule is that the Appeals Council must explain why it rejects credibility determinations of ALJs. Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986). In this case, however, the ALJs made no credibility determinations. They decided Weston's claim without a hearing solely on the basis of documents submitted to them. The Appeals Council rejected the decisions of the ALJs based on those same documents. We therefore are not bound in any way by the ALJs' determinations, and we now examine the Appeals Council's decision to see if it is supported by substantial evidence.

B

Weston argues that the Appeals Council's conclusion that he could perform light work was not supported by substantial evidence. Substantial evidence "is more than a scintilla, but less than a preponderance." Razey, 785 F.2d at 1430; Richardson v. Perales, 402 U.S. 389, 401 (1971). Despite Weston's suggestion to the contrary, it does not require "good and convincing reasons."

Weston never argues that he cannot physically perform sedentary work--he only maintains that the evidence indicated that he could not perform the full range of light work. To the extent that he can perform sedentary work, he is not disabled and not entitled to benefits. 20 C.F.R. Part 404, Subpart P, App. 2, Rules 201.18-20, and 202.17-19 (1988).

Neither the evidence on hearing restrictions nor the evidence on psychiatric problems (psychosomatic illnesses and chronic anxiety) suggests an inability to do sedentary work. The hearing loss report noted inconsistencies between speech reception and pure tone thresholds, indicating that Weston's hearing was probably better than volunteered. Moreover, the evidence established that his hearing could be improved by a functioning hearing aid.

Likewise, the Appeals Council could properly conclude that Weston's mental impairments did not affect his ability to perform sedentary work. He did not seek treatment or medications for the alleged mental conditions, and his independent daily living activities were not affected. Therefore, even if Weston had hearing and mental difficulties, he need not be classified as disabled because he could still perform sedentary work.

In addition to sedentary work, substantial evidence indicates that Weston could perform light work as well. Weston's treating physician, whose opinion is entitled to considerable deference, Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983), felt that Weston could perform light work. Weston never argues that he is completely incapable of doing light work. Instead, he argues that if all the evidence is viewed in the light most favorable to him, it indicates that he cannot perform the full range of light work.

The Secretary need not view the evidence liberally in favor of Weston. He only needs to muster substantial evidence to support his conclusion. Because three physicians suggested that Weston could perform light work with restrictions on heavy lifting and repetitive bending and twisting, the Secretary's conclusion that Weston could perform both sedentary and light work is supported by substantial evidence.

AFFIRMED.