Unpublished Disposition, 907 F.2d 154 (9th Cir. 1990)

MEMORANDUM^** 

Gerald Bullock appeals the district court's judgment affirming the Secretary of Health and Human Services' decision that Bullock was not entitled to disability benefits under Title II of the Social Securities Act. Bullock contends that the Secretary's decision that he is not disabled was unsupported by substantial evidence. We AFFIRM.

Bullock contends that the Secretary's decision is not supported by substantial evidence because 1) the ALJ failed to articulate reasons for not crediting lay testimony; 2) the ALJ failed to discount expert testimony; 3) the ALJ incorrectly found that Bullock could return to past work; 4) the ALJ failed to show that Bullock could perform other work; 5) Bullock's cardiac impairment includes a condition listed in 20 C.F.R. Sec. 404, Subpart P, Appendix 1 (1988) ("Appendix 1"), and he is therefore presumptively disabled; and 6) this presumptive disability entitled him to a trial work period, pursuant to which his self-employment beginning in July 1987 should not have been considered as proof that he is not disabled.

The ALJ's Treatment of the Evidence

Bullock contends that the ALJ improperly rejected uncontradicted opinions by both his treating physicians and the Secretary's medical advisor that proved he was disabled. We disagree.

At his hearing, Bullock submitted the records of his treating physician, Dr. James Walker, who had treated Bullock beginning in 1976. Although the evidence established that Bullock suffers from cardiac impairment, Dr. Walker stated in 1987 that Bullock was capable of doing light work, and the ALJ relied on this testimony to determine that Bullock did not establish a prima facie case of disability.

While a medical advisor, Dr. Bonzer, disagreed in part with Dr. Walker's assessment of Bullock's 1987 capabilities, Dr. Walker's opinion was entitled to greater weight. See Magallenes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Dr. Bonzer had never examined Bullock, and his testimony was based entirely on his interpretation of Dr. Walker's records and Bullock's own subjective pain testimony. The ALJ legitimately discounted Dr. Bonzer's conclusion in favor of Dr. Walker's evidence. See Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). The ALJ was not required to give reasons for rejecting the medical advisor's testimony in favor of the treating physician's opinion. Cf. Magallenes, 881 F.2d at 752-53.

Presumptive Disability

Bullock contends that he is presumptively disabled because Dr. Bonzer identified his condition as an Appendix 1 listed impairment in a letter written after the hearing. He argues that because of this presumptive disability, he was entitled to a "trial work period" under 42 U.S.C. § 422(c) (2) and his work beginning in July 1987 should not have been considered substantial gainful employment. This contention lacks merit.

Appendix 1 Sec. 4.04 describes medical evidence that the Secretary will consider when making a determination of disability due to cardiovascular impairment. The Secretary may consider certain conditions listed in Appendix 1 Sec. 4.04(B) to be presumptive evidence of disability, but the conditions listed in section 4.04(B) will be considered only in the absence of acceptable treadmill exercise test results. See Appendix 1 Secs. 4.00(G) (4); 4.04(B). Where a treadmill test is submitted, it will not be considered evidence of disability if the claimant shows a negative response (i.e., no abnormal results) at an exercise level of 5 METs or more.¹  See id.; see also Crouchet v. Sullivan, 885 F.2d 202, 205 (5th Cir. 1989) (treadmill test showing normal results at 5 METs precludes consideration of 4.04(B) criteria).

Here, Dr. Bonzer relied on a 1983 angiogram to conclude that Bullock's condition met the cardiac impairment listed in 4.04(B) (7). The Appeals Council considered Dr. Bonzer's letter as part of Bullock's motion for reconsideration, but noted that a valid treadmill exercise test from 1983 showed a negative response at 5 METs. Thus, the non-treadmill criteria set forth in Sec. 4.04(B) were not applicable, see Appendix 1 Sec. 4.00(G) (4), and the Appeals Council properly declined to find Bullock presumptively disabled. See id.² 

Substantial Evidence

In support of his conclusions that Bullock was not disabled, the ALJ noted that Bullock's treating physician's records showed that Bullock had been uncooperative in his treatment, and that in the doctor's opinion, Bullock could perform light work. The ALJ stated that Bullock's past work includes that of Raimann operator (plugger), which was light work, and that he was therefore not disabled. The ALJ also noted that the medical advisor's testimony "supports the conclusion that the claimant would be able to perform work ranging from sedentary to light work," and that Bullock's work after the alleged onset of disability "is significant and persuasive" in establishing his residual functional capacity to engage in substantial gainful activity. The ALJ properly relied upon the medical records and opinions of Bullock's treating physician. Bullock's subjective pain testimony, even if credited, did not rebut this evidence and therefore substantial evidence supports the Secretary's determination that Bullock could perform light work and was not disabled. See 42 U.S.C. § 405(g).

AFFIRMED.