Unpublished Disposition, 912 F.2d 469 (9th Cir. 1990)

MEMORANDUM^* 

Dolores Kruse appeals the district court's grant of summary judgment in favor of the Secretary of Health and Human Services (Secretary). She challenges the denial of her September 2, 1986 application for Social Security disability benefits.

At issue is whether Kruse was disabled prior to March 31, 1983, the last date of her insured period, and whether the disability continued until July 1985, the earliest retroactive date for her application.¹  Her application alleged leg and back pain, arthritis of the spine, and bursitis in the right shoulder.² 

DISCUSSION

We review de novo the grant of summary judgment and disturb the Secretary's denial of benefits "only if it is not supported by substantial evidence or if it is based on legal error." Bates v. Sullivan, 894 F.2d 1059 (9th Cir. 1990) (citations omitted); see also McAllister v. Sullivan, 888 F.2d 599, 601 (9th Cir. 1989).

Kruse contends that the Secretary erred by rejecting Kruse's pain testimony and her treating physician's opinion. She also contends that the decision to deny benefits is not supported by substantial evidence.

Kruse testified that prior to March 1983, she suffered severe pain in her shoulder and lower back, and that the pain sometimes radiated into her legs. She was able to work part time, but testified that she spent most of her non-working hours in bed and took tylenol 3 and cortisone injections for pain. She testified that she stopped working on May 30, 1982 because she was unable to work, but that the pain continued.

The ALJ found that Kruse's testimony was "less than credible" and that the record "fail [ed] to establish the presence of a physical or mental impairment or combination of impairments beginning or [sic] or before March 31, 1983, which were of sufficient severity to preclude past work and all other substantial gainful activity for 12 continuous months." The decision states that Kruse's "complaints of ongoing pain and limitations are not corroborated by medical evidence of any impairment which would be expected to produce these symptoms and her complaints are not found to be credible." The decision summarizes the evidence, and notes that Kruse returned to work in 1981 after the back surgeries, that no significant abnormalities were found after a 1981 car accident, and that, except for the shoulder bursitis, no significant medical problems were documented prior to March 31, 1983. The Appeals Council agreed and added that Kruse's employer thought she performed well during her part-time work in 1981 and 1982.

Our review of the record reveals that during the critical period from May 30, 1982 to March 31, 1983, Kruse sought treatment only a few times. She once reported joint pain from the waist down and once received a shoulder injection. No physician noted any limitation in movement or restricted her activities. Immediately prior to this period, Kruse worked part time as a salesperson and gift wrapper. At work, Kruse regularly lifted light objects and carried them a few steps to wrap them. She testified that she occasionally wrapped and lifted objects as heavy as a television. Her employer gave her a good recommendation, stating that she attained a "consistently high volume for any type assignment." After March 1983, we find no medical notation of severe back or leg pain until 1986.

At the time of her application in 1986, Kruse suffered from disc degeneration and arachnoiditis, inflammation of a membrane surrounding the spinal cord. Arachnoiditis can result from retention of Pantopaque, a dye which was injected into Kruse's lower back during two lower back surgeries in the 1970s. Kruse contends that a 1986 CT scan showing retained Pantopaque and arachnoiditis in her lower back is objective medical proof that her impairment began before March 31, 1983 because the Pantopaque was injected no later than 1976.³  The CT scan tends to prove only that Kruse had retained Pantopaque in 1983, not that she had arachnoiditis at that time or suffered pain as a result.

We conclude that Kruse's testimony as to her degree of pain was not rejected merely because it was "unsupported by objective medical evidence." See Stewart v. Sullivan, 881 F.2d 740, 743 (9th Cir. 1989); see also Fair v. Bowen, 885 F.2d 597, 602-603 (9th Cir. 1989). Rather, the ALJ and Board of Appeals rejected her testimony because of a combination of factors, including the lack of objective medical evidence and Kruse's part time work history. The stated reasons "convincingly justify" the decision that Kruse's testimony was "less than credible." See Stewart, 881 F.2d at 743; Fair, 885 F.2d 602-603.

Kruse also contends that the ALJ erred by rejecting Dr. Riddle's opinion without clear and convincing reasons.

In a 1986 letter, Dr. Riddle related that Kruse had complained of lower back pain that sometimes radiated into her right foot ever since 1975. Dr. Riddle opined that Kruse's lower back problems developed into "an almost debilitating situation in that she was unable to work regularly at any gainful employment ... especially in the latter part of 1981 and 1982. When she moved from this city [summer 1982], she was to the point where in my opinion she was unable to have any gainful employment."

The ALJ stated that:

[Kruse] "has a history of back surgeries, but the most recent was in 1976, followed by return to work. Shoulder pain in 1980 without associated x-ray or clinical abnormalities was noted, with improvement by January 1981. No significant neurological or other significant physical abnormalities were found after the December 1981 motor vehicle accident were found and there were no other significant medical problems, except for treated right shoulder bursitis, prior to March 31, 1983. Through that date, no significant unusual impairment ... is documented. Accordingly, as Dr. Riddle's 1982 [sic] opinion as to claimant's inability to work is neither supported by specific clinical or other medical findings nor consistent with the other medical evidence of record through March 31, 1983, it is accorded little probative weight ... and is not considered persuasive.

We accord special weight to a treating physican's opinion because "he is employed to cure and has a greater opportunity to know and observe the individual." McAllister v. Sullivan, 888 F.2d at 599 (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988)). Kruse moved in June 1982, and Dr. Riddle had little opportunity to "know and observe" her condition during the time critical to her application, from May 31, 1982 until March 31, 1983.

The record reveals no contemporaneous medical observations or tests to substantiate Dr. Riddle's opinion that Kruse's condition worsened to a "point where she was unable to have any gainful employment." Dr. Riddle permitted Kruse to work part time in 1981, she did so successfully, and there is no record of any other medically imposed restrictions.⁴  During the nine months prior to March 31, 1983, Kruse's new treating physician noted only one complaint of joint pain from the waist down and recorded only one shoulder injection. Two agency physicians gave opinions, based on review of the medical records, that Kruse could stand and sit for six hours daily prior to the last date insured.

We conclude that there were conflicting medical opinions, and that the ALJ provided "specific legitimate reasons based on evidence in the record for disregarding the treating physician's opinion." See Boyes v. Sullivan, No. 88-15342, slip op. at 3623 (9th Cir. April 11, 1990)); see also Fair v. Bowen, 885 F.2d 597, 604-605 (9th Cir. 1989).

Kruse provided proof of severe physical limitations at the time of her application in 1986, but failed to submit credible evidence that she was disabled prior to March 31, 1983. We conclude that the decision to deny benefits is supported by substantial evidence in the record, and AFFIRM.