Unpublished Disposition, 912 F.2d 468 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 912 F.2d 468 (9th Cir. 1987)

No. 89-55555.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING and PREGERSON, Circuit Judges, and ORRICK,**  Senior District Judge.

MEMORANDUM*** 

Appellant and claimant, Hiram Betancourt, filed an application for disability insurance benefits on July 7, 1986. His claim was denied by the Social Security Administration, both initially and on reconsideration. On December 28, 1987, an administrative hearing was held. The Administrative Law Judge ("ALJ") concluded that claimant was not disabled and could perform his past relevant work. Claimant's request for review of this decision was denied by the Appeals Council. He then brought an action in the Central District of California pursuant to Sec. 205(g) of the Social Security Act, which provides in pertinent part:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party ... may obtain a review of such decision by a civil action commenced within sixty days ... in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business....

42 U.S.C. § 405(g). The parties filed cross-motions for summary judgment, and the district court granted the motion of the Secretary of Health and Human Services ("Secretary"), and dismissed claimant's complaint. This appeal followed. We reverse, and remand the case for further proceedings consistent with this Memorandum.

Claimant argues that he has been unable to work at his prior job as a truck driver since approximately March 12, 1986, due to back pain, diabetes, hypertension, dizziness, and gastrointestinal disorders. He protests the Secretary's denial of disability benefits on the grounds that: (1) the ALJ failed to make specific findings in discrediting his subjective complaints of pain; (2) the ALJ failed to give adequate weight to the evaluation of claimant's treating physician; and (3) the ALJ erred in concluding that he is able to perform "medium" work and his past relevant work.

Claimant's first contention is without merit. The Secretary may disregard or discredit subjective testimony of excess pain, but such a decision must be supported by specific findings. Varney v. Secretary of Health & Human Services (hereinafter Varney I), 846 F.2d 581, 584 (9th Cir. 1988). The ALJ in this case did support his decision to discredit claimant's pain testimony with the specific findings that he worked for more than a year following the injury that allegedly caused his back pain, and that he was not receiving treatment for this pain.

Similarly, we reject claimant's second argument that the ALJ improperly discredited the opinion of his treating physician, Dr. Hoemann, that claimant would be an employment risk. As a general rule, the opinion of a claimant's treating physician is entitled to great weight. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Where, as here, the treating physician's opinion is contradicted by that of other doctors, the ALJ may disregard that opinion as long as he makes findings "setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Id. Claimant contends that the ALJ in this case failed to set forth specific reasons for discrediting Dr. Hoemann's opinion. In his decision, however, the ALJ stated that "Dr. Hoemann based his conclusion that the prognosis was 'poor' on the claimant's subjective complaints since the physician reported possible silent heart problems and decreasing vision despite the objective evidence of normal EKGs and normal vision with correction." This statement constitutes a "specific, legitimate reason" for discrediting Dr. Hoemann's opinion. It is also based on substantial evidence in the record because Dr. Hoemann's opinion was contradicted by the objective medical evidence that he himself obtained.

Claimant's third argument is potentially meritorious, although the record is not sufficiently developed to enable us to resolve this issue. He contends that the ALJ erred in concluding that he is capable of "medium" work, and, alternatively, he argues that, even if this conclusion is supported by the evidence, his prior job as a truck driver was improperly characterized as "medium" work when it actually involved "heavy" levels of exertion.1 

We disagree with claimant's contention that the evidence does not support the ALJ's finding that he is capable of doing "medium" work. The record in this case reveals that: (1) claimant continued to work, lifting boxes weighing over one hundred pounds, for over a year after the accident that injured his back; (2) he has full range of motion despite his back injury, although some physicians reported decreased range of motion; (3) the medical evidence does not fully support a diagnosis of cardiac problems, and there is no evidence that these alleged problems have resulted in any functional limitations; (4) claimant's gastrointestinal problems have been successfully controlled by Tagamet; (5) claimant's hypertension and diabetes have caused no severe end organ damage, and are uncontrolled primarily because claimant has been unable to manage his diet; (6) claimant's alleged visual deficits do not restrict his ability to work because his vision is normal with correction; and (7) two physicians concluded that claimant had essentially unlimited residual functional capacity.

While the ALJ's determination that claimant is capable of "medium" work is supported by substantial evidence in the record, his decision that claimant's past work involved "medium" exertion may have been erroneous. The ALJ based this determination on the job description for "truck driver" provided in the Dictionary of Occupational Titles (hereinafter Dictionary) . Reference 905.663-014. Claimant contends that Reference 905.663-014 is not the appropriate reference for his past work, and argues that two other classifications in the Dictionary are more relevant to his actual job description, which involved "heavy" exertion.

Claimant is required to show an inability to return to his previous work, not to his specific prior job. DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir. 1983). Moreover, the level of exertion assigned to a job in the Dictionary is presumptively applicable to a claimant's prior work. Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986).

The Villa and DeLoatche cases also hold, however, that a claimant is entitled to overcome the presumption of applicability of the Dictionary references, either by demonstrating that the duties of his past work were not those envisaged by the drafters of the category, or by demonstrating that the Dictionary inaccurately evaluated the exertional demands of a job title that does apply. DeLoatche, 715 F.2d at 151; Villa, 797 F.2d at 798. Here, as in Villa, there is evidence in the record that could be construed as rebutting the applicability of the particular Dictionary category selected by the ALJ as applicable to claimant's prior work. As in DeLoatche, this rebuttal evidence is in the form of the claimant's own testimony regarding his job duties. Further, there is no evidence in the record to indicate whether the ALJ rejected (or even considered) the fact that claimant's specific job apparently required him to lift boxes weighing over fifty pounds, or whether he concluded that such activities would not distinguish claimant's prior job from the occupation described under the heading of "truck driver" in Reference 905.663-014. The ALJ's reason for selecting Reference 905.663-014 over two other "truck driver" job descriptions in the Dictionary that appear to include heavy lifting (References 906.687-010 (Truck Driver-Helper) and 904.383-010 (Tractor-Trailer-Truck Driver)) was not stated in the record and is, therefore, unclear.

Accordingly, we reverse the district court's grant of summary judgment and remand this case for further factual findings as to whether claimant has successfully rebutted the presumptive applicability of Reference 905.663-014.

 ***

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. 21

 *

Louis W. Sullivan, M.D., has been substituted for Otis R. Bowen, M.D., as defendant-appellee in this appeal pursuant to Federal Rule of Appellate Procedure 43(c) (1)

 **

Honorable William H. Orrick, Senior United States District Judge for the Northern District of California, sitting by designation

 1

Claimant also contends that it was procedural error for the ALJ to determine that he is not disabled without referring to the Medical-Vocational Guidelines ("the grids"). 20 C.F.R. Sec. 404, Subpt. P, App. 2; Cooper v. Sullivan, 880 F.2d 1152 (9th Cir. 1989). We reject this contention because the grids are to be used if it is determined that the claimant is unable to resume his relevant past work. Here, the ALJ determined that claimant was capable of medium work, and that his past work as a truck driver fell into this category. Therefore, it was not error for the ALJ to determine that claimant was not disabled without referring to the grids