Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 918 F.2d 181 (9th Cir. 1990)

Benito MEDINA, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary of Health and Human Services,Defendant-Appellee.

No. 89-56158.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 8, 1990.* Decided Nov. 15, 1990.

Before ALAN E. NORRIS, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.


MEMORANDUM** 

Claimant Medina appeals the district court's affirmance of a decision by the Secretary of Health and Human Services to deny his application for disability insurance benefits.1  Because the Secretary's position is supported by medical evidence, and because the ALJ in this case set forth specific and legitimate reasons for disregarding the treating physician's opposite opinion, we affirm.

Appellant argues that the ALJ improperly rejected the opinion of appellant's treating physician that appellant was disabled by reason of his asthma.2  Our court has held that if the opinion of the treating physician is contradicted by that of another doctor, the treating physician's opinion can be disregarded if the ALJ sets forth " 'specific, legitimate reasons for doing so that are based on substantial evidence in the record.' " McAllister v. Sullivan, 899 F.2d 599, 602 (9th Cir. 1989) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

The ALJ did so in this case. He noted the findings of examinations, taken after the treating physician recommended that Medina retire, which showed that Medina's pulmonary functions were within the normal range. CR 3; see also CR 72-73 (findings of non-treating physician). He also noted that Medina had never "received intensive asthma treatment such as intravenous drug administration or inhalation therapy in a hospital or emergency room." CR 3. Of course, the lack of such intensive asthma treatment is only circumstantial evidence of the lack of severity of Medina's condition. However, when considered in conjunction with the specific clinical findings showing pulmonary functions within the normal range, we hold that the ALJ did meet our rather limited requirement that the ALJ offer specific and legitimate reasons for disregarding the treating physician's opinion that Medina was totally disabled.

Appellant also argues that appellee should have been required to produce testimony of a vocational expert to bolster appellee's argument that appellant was able to work as a truck driver. As appellee points out, however, our court in Miller v. Heckler, 770 F.2d 845 (9th Cir. 1985), has held that the Secretary is not required to produce the testimony of a vocational expert when the claimant has failed to show that he is unable to perform any "previous relevant work." 770 F.2d at 850. Since we are affirming the ALJ's determination that appellant could in fact perform his past relevant work, Miller requires a holding that the ALJ did not err in failing to hear from a vocational expert.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth 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 Ninth Circuit Rule 36-3

 1

Appellant's application was denied initially and on reconsideration by the Social Security Administration ("SSA"). An Administrative Law Judge also denied the benefits. The SSA Appeals Council affirmed the ALJ's decision, and, upon appellant's appeal to the District Court, that court did as well

 2

Appellant cites a number of occasions on which his treating physician made this determination. See Appellant's Brief at 4-5. For example, on an examination form dated July 1, 1986, the treating physician wrote: "I FELT THAT ON MAY 29, 1986 PATIENT SHOULD RETIRE FROM HIS FULLTIME JOB, FOR HIS HEALTH PROBLEMS. HE HAS PROGRESSLY [sic] GOTTEN WORSE WITH HIS ASTHMA. IT IS NOW A CHRONIC CONDITION, WITH EPISODES OF SEVERE ATTACKS. BY HAVING PATIENT RETIRE FROM HIS JOB, HE HAS A BETTER CHANCE OF GETTING SOME TYPE CONTROL [sic] ON HIS ASTHMATIC CONDITION. BUT OTHERWISE PATIENT IS IN FAIRLY GOOD HEALTH." CR 66. On the same form the physician indicated that appellant was totally disabled for any occupation, and never able to resume any work. CR 65