Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 1578 (9th Cir. 1989)

Rosaline B. LEWIS, Plaintiff/Appellant,v.Louis W. SULLIVAN, Secretary, Defendant/Appellee.

No. 89-15575.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 1990.Decided May 10, 1990.

Before HUG, SKOPIL and SCHROEDER, Circuit Judges.


MEMORANDUM* 

Rosaline Lewis appeals the district court's grant of summary judgment upholding the Secretary's decision to deny Lewis' application for supplemental security income disability benefits. The Secretary found that Lewis was not disabled and that her alleged impairments did not prevent her from performing past relevant work. We conclude there is substantial evidence in the record to support the Secretary's decision. We reject Lewis' contention that the district court erred by not remanding to the Secretary for consideration of a state agency's determination that Lewis was disabled. We affirm.

* Rosaline Lewis, represented by counsel, applied for supplemental security income benefits on April 10, 1986, alleging that she had been unable to work since January 18, 1985 due to heart disease, a ruptured disc, numbness in her right hand and foot, neck and back pain, and a lump in her breast. She was hospitalized between January 22 and February 10, 1985 for removal of an osteophyte from her left great toe. During that time, doctors performed numerous tests on her, including a breast biopsy, a small bowel series, and an upper GI series, the results of which were negative. A CT scan revealed an enlarged uterus and a mild central stenosis of the spine.

Dr. Freeman, a treating physician, noted that Lewis injured her back in 1980, causing problems with the lumbosacral disc but that she had declined surgery and had improved over the years, although she still suffered some pain. Lewis was able to walk on her toes and heels and her range of motion was normal except where limited by pain in her lower back. There was no indication of muscle atrophy or motor deficit. A consulting physician, Dr. Raney, reported that Lewis had tenderness and reduced motion in her back. He recommended that surgery be considered, but none was ever performed.

Additional tests were conducted in March 1986. A brain scan was negative and an EEG and EMG were normal. Dr. Brennan reported no substantial heart impairments that could not be controlled by medications. Dr. Weiss reported that he had been treating Lewis since January 1984 for hypertension but that she had not responded to treatment either due to a lack of response to medication or her failure to take it. He opined that her chest pains were not coronary in nature and that her primary problem was related to her back injury.

Lewis was examined in October 1986 by Dr. Levine who concluded that Lewis suffered from hypertension which needed to be controlled. Her complaints of chest pains were not suggestive of angina and were probably related to stress and anxiety. He found no neurological deficit except for slight numbness of her fingers.

Lewis underwent a psychiatric evaluation on October 29, 1986. Dr. Mawardi noted that Lewis appeared depressed but that she functioned in a bright normal range with normal attention and concentration spans. He thought that her inability to handle stress could be overcome with antidepressant medications and psychiatric support.

A psychological evaluation was performed by Dr. Fox in July 1987. He found that Lewis was functioning in a normal to low average range but that her intellectual potential was higher. Lewis was depressed but capable of following simple instructions in a low stress setting and was able to relate to supervision.

An orthopedic evaluation was performed by Dr. Lavi on July 27, 1987. He reported that Lewis suffered from herniated nucleus pulposus but exhibited a full range of motion of the lumbar spine. He recommended that she not lift more than twenty-five pounds but otherwise placed no other limitations on her work activities.

An Administrative Law Judge (ALJ) reviewed this medical history and concluded that Lewis was not precluded from returning to her former work. The ALJ noted that Lewis "has alleged over a period of 3 years or so, a wide variety of ailments, none of which, except for her transient toe problem, have been shown to be significant or what she claims." ALJ's decision at p. 6. The ALJ found that Lewis "does not have a non-exertional limitation which would affect her ability to perform medium work activity and could return to her jobs as a secretary, sales coordinator and clerical worker which are generally performed at the sedentary exertional level." Id. The ALJ's decision became the final decision of the Secretary when the Appeals Council declined review on February 11, 1988.

II

To collect supplemental security income from the government, Lewis must establish that she suffered from a "disability" during the relevant time period. See Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990) (citing 42 U.S.C. § 423(a) (1) (D)). She must demonstrate that she has " 'a medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.' " Id. (quoting 42 U.S.C. § 423(d) (1) (A)). Her impairment must be of such severity that she is not only unable to do her previous work but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Id. (citing 42 U.S.C. § 423(d) (2) (A)).

The ALJ considered Lewis' age, education, relevant past work experience, and medical history. ALJ's Decision at 3. He acknowledged that she suffers from a number of minor ailments but he noted that " [n]o doctor has placed any physical limitations on her ability to perform work related activities except Dr. Lavi." Id. at 6. The ALJ implicitly found that Dr. Lavi's twenty-five pound lifting restriction was not an exertional limitation that would prevent Lewis from returning to her former, sedentary work. Id.

Our review of the record also convinces us that Lewis has failed to carry her burden of showing that she is disabled and cannot return to work. No doctor has concluded that Lewis was disabled during the time at issue. We agree with the district court that there is substantial evidence in the record to support the Secretary's determination that Lewis was not entitled to benefits.

III

A claimant seeking a remand must demonstrate that there is " 'new evidence which is material, and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.' " Clem, 894 F.2d at 332 (quoting 42 U.S.C. § 405(g)). Lewis' state disability determination was made on March 28, 1989, approximately a year after the Secretary denied her application for supplemental security income disability benefits. Thus, Lewis could show good cause why she failed to place the state's decision into evidence before the Secretary.

Lewis cannot show, however, that the state agency's decision is material. A determination by another governmental agency that a person is disabled is not binding on the Secretary. 20 C.F.R. Sec. 404.1504 (1988). Thus, " [a] state finding of disability may be introduced into evidence before the Secretary, but the Secretary may attribute as much or as little weight to it as the Secretary deems appropriate." Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990). This is so even if the claimant has been found eligible to receive state disability benefits under a standard more rigorous than that used to determine eligibility for supplemental security income. Id. Since the Secretary may refuse to give any consideration to a state agency's determination of disability, the state's decision is not sufficiently material to warrant a remand. See Fair v. Bowen, 885 F.2d 597, 606 (9th Cir. 1989) (remand is not required when proffered evidence is not material).

AFFIRMED.

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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