Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1990)

Sau TRAN, Plaintiff-Appellant,v.Louis J. SULLIVAN,*  Secretary of Health andHuman Services, Defendant-Appellee.

No. 88-15492.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1990.Decided April 10, 1990.

Before WIGGINS, DAVID R. THOMPSON and TROTT, Circuit Judges.


MEMORANDUM** 

Sau Tran appeals the district court's grant of summary judgment to the Secretary of Health and Human Services in her action for Supplemental Security income. She contends that the ALJ's decision that she can perform light work and therefore is not disabled is based on several legal errors and is unsupported by substantial evidence. We have jurisdiction pursuant to 42 U.S.C. § 405(g) (1982). We reverse and remand.

STANDARD OF REVIEW

This court reviews an ALJ's denial of disability benefits to see if the decision rests on substantial evidence and the proper application of the correct legal standards. Davis v. Heckler, 868 F.2d 323, 325 (9th Cir. 1989).

DISCUSSION

We reject Tran's argument that the ALJ erred in discrediting her testimony of excess pain. The ALJ concluded that "although the claimant might suffer some pain, the objective evidence fails to indicate her symptoms and functional limitations would preclude her" from engaging in her past work as a domestic housekeeper. This is a specific and legitimate reason for disregarding Tran's testimony. See Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990) (Wright and Wallace, JJ., concurring) (ALJ properly rejected claimant's pain testimony because it was not fully corroborated by objective medical findings).

Tran's arguments that the ALJ used incorrect legal standards lack merit. In determining whether Tran could perform light work, the ALJ properly considered whether she could lift up to twenty pounds and frequently lift up to ten pounds. See 20 C.F.R. Sec. 404.1567(b) (1989). This regulation is a reasonable construction of the statute because it does not single out one particular task of one particular job, but rather sets up a general test of whether the claimant can perform various tasks within a certain range of exertion.

Tran's invocation of the Dictionary of Occupational Titles to claim that her past work requires medium rather than light work is misplaced. The ALJ uses the Dictionary only if he determines that the claimant cannot perform her past work. See 20 C.F.R. Sec. 404.1569. Here, the ALJ determined that Tran can perform her past work.

We accept Tran's argument that the ALJ erred in rejecting the opinion of her treating physician, Dr. De Lay, without offering specific and legitimate reasons for doing so. De Lay concluded that Tran's impairments, osteoarthritis and obstructive pulmonary disease, limit her to sedentary work. The ALJ implicitly rejected De Lay's opinion by concluding that Tran is able to perform light work. Yet, the ALJ never evaluated De Lay's findings or conclusions, but only summarized De Lay's opinion generally without specific reference as to why he disregarded it. This is not a sufficient statement of reasons. See Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (ALJ's indirect references to inconsistencies in the treating physician's opinion does not satisfy requirement of offering specific and legitimate reasons for rejecting opinion of treating physician). Thus, the ALJ erred in rejecting De Lay's opinion.

We also accept Tran's argument that the ALJ's decision that she could perform her past work is not supported by substantial evidence. Because the ALJ failed properly to reject De Lay's opinion, the ALJ's decision is unsupported by substantial evidence. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988). Furthermore, the ALJ's decision relied on apparently flawed medical opinions of the examining doctors.

Dr. Struver examined Tran and concluded that Tran had no obvious limitations in her physical activities. Yet, Struver admitted that in his sole examination of Tran, he could not communicate with her because of a language barrier. Furthermore, Struver did not personally review Tran's medical records. Thus, Struver's opinion only tenuously supports the ALJ's decision that Tran can perform light work.

Dr. Grieff also examined Tran but his only findings consistent with the ALJ's decision were that Tran had a normal range of motion in her neck and back, her ankles were not swollen at the time of examination, and her chest x-rays showed no pulmonary obstruction at that time. But Grieff made no findings with regard to whether Tran suffered from osteoarthritis or obstructive pulmonary disease, the impairments that De Lay found limited Tran to sedentary work. Also, Grieff came to no conclusion as to her ability to work. Thus, Grieff's opinion does not constitute substantial evidence in support of the ALJ's decision that Tran can perform light work.

Tran invites us to award her benefits if we find that the ALJ erred in determining that she is not disabled. We exercise our discretion not to award benefits because the record is incomplete. Because the ALJ determined that Tran could perform her past work, he did not evaluate whether she could perform other work in the national economy, so he did not apply the "Grids" to Tran, nor did he call a vocational expert. Thus, there are outstanding issues to be resolved before a proper disability determination can be made. Cf. Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988) (awarding benefits to the claimant, without remanding to the ALJ, because the completed administrative record clearly showed that the ALJ would be required to award benefits upon remand).

CONCLUSION

The ALJ decision is not supported by substantial evidence because it rests on flawed medical opinions and does not properly reject Tran's treating physician's opinion. However, we decline to award benefits to Tran because the record is incomplete. Thus, the ALJ's decision is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

REVERSED and REMANDED.

 *

Louis J. Sullivan, M.D., is substituted for his predecessor, Otis R. Bowen, M.D., as Secretary of Health and Human Services

 **

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