Unpublished Disposition, 899 F.2d 20 (9th Cir. 1990)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 899 F.2d 20 (9th Cir. 1990)

Donald E. WEBER, Plaintiff-Appellant,v.Louis W. SULLIVAN, Defendant-Appellee.

No. 89-35149.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 10, 1990.* Decided April 5, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


MEMORANDUM** 

Appellant Donald E. Weber, a disability insurance claimant, appeals the district court's order affirming the Health and Human Services Secretary's denial of benefits. He contends the Secretary erred in finding him able to perform his previous relevant work.

Weber contends that the ALJ erred in not obtaining for Weber a cardiovascular stress test in which Weber's heart rate reached eighty-five percent of the maximum predicted rate. We disagree. Weber cites Bartlett v. Heckler, 777 F.2d 1318, 1321 (8th Cir. 1985), and 20 C.F.R. ch. III, pt. 404, subpt. P, app. 1, Sec. 4.00(G) (2), for the proposition that a test during which a claimant does not reach the targeted rate is "unacceptable." But Bartlett is not controlling authority and holds only that a stress test in which the claimant does not achieve the targeted heart rate cannot be considered a normal test under the listings. See Bartlett, 777 F.2d at 1321; 20 C.F.R. ch. III, pt. 404, subpt. P, app. 1, Sec. 4.04(B).

Weber does not dispute that he was able to exercise at a level of 9.5 METs during the stress test. A claimant only meets the stress test listing for cardiovascular impairment if unable to exercise at a level of 5 METs. See 20 C.F.R. ch. III, pt. 404, subpt. P, app. 1, Sec. 4.04(A). Therefore, whether or not the test was abnormal, Weber did not meet the listing.

Furthermore, the stress test could reflect only Weber's exertional capacity. Weber does not dispute that he has an exertional capacity for at least the light work the ALJ found he could perform.1  His ability to exercise to 9.5 METs supports only the other evidence of his exertional capacity, which includes his treating physician's assessment, supported by his own testimony, that he has the exertional capacity for at least light work.2 

Weber argues that the ALJ relied on Social Security Ruling 82-51, which had been rescinded. The district court found that, although the ALJ referred to the ruling, because Weber's exertional capacity was less than the ruling would dictate, the ALJ could not have relied on the ruling. We agree. Moreover, because the ALJ did not overestimate Weber's exertional capacity, reliance could not have prejudiced him. We will not reverse the Secretary simply because the ALJ mentioned a rescinded ruling.

Weber argues that the ALJ inadequately weighed his treating physician's opinions and failed to set forth adequate reasons for discounting those opinions. The treating physician opined that Weber was unable to perform his past work as a forklift operator. Weber concludes that the ALJ was obliged to accept that opinion about his functional abilities.

The district court found that the ALJ correctly rejected the treating physician's opinion, which was rendered in the form of a check mark in a box on a form Weber's attorney supplied, as conclusory. It also found that the treating physician's opinion was inconsistent with his medical findings, including his opinions about Weber's functional capacity. We agree with the district court. Under the circumstances, the ALJ did not err in finding that Weber could work as a forklift operator.

Finally, even if Weber were unable to work as a forklift operator, there is nothing to suggest that he could not perform his previous work as a firewatch. Weber does not dispute that if he was able to work as a firewatch, he was not disabled.

IV. Exertional Level of Weber's Previous Relevant Work

Weber's previous relevant work was as a forklift operator and as a firewatch. He contends that because the ALJ found he was unable to engage in more than light work, and because the Dictionary of Occupational Titles lists forklift operator and firewatch as jobs requiring medium work, he is unable to perform previous relevant work. This argument is without merit. There is substantial evidence in the record as a whole, see Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988), including Weber's own testimony, to support the ALJ's finding that those jobs required only a light exertional level.

Weber argues that if he is unable to perform his past relevant work, he is disabled according to the medical-vocational guidelines. See 20 C.F.R. ch. III, pt. 404, subpt. P, app. 2, Secs. 201.02, 202.02. We do not reach this issue. The ALJ's finding that Weber could return to his previous relevant work, which was supported by substantial evidence in the record as a whole, dictates a finding of not disabled. See Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. Sec. 404.1520(e).

AFFIRMED.

 *

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

 **

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

Appellant does argue that because his treating physician found that he could not stand or walk more than two hours a day, he cannot perform a full range of light work. But that limitation reflects his joint problems, not his cardiovascular fitness. Moreover, because Weber's past relevant work did not require walking or standing, his capacity to stand and walk is not at issue in this appeal

 2

His treating physician found that he could lift up to 50 pounds on occasion and 25 pounds frequently, the exertional level associated with medium work. See 20 C.F.R. Sec. 404.1567(c)

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.