Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1062 (9th Cir. 1991)

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

No. 90-35243.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1991.* Decided Jan. 28, 1991.

Before EUGENE A. WRIGHT, BRUNETTI and LEAVY, Circuit Judges.


Ken Davis of Big Fork, Montana, appeals the district court's judgment affirming the Secretary's decision to deny Davis disability benefits and granting summary judgment in favor of the Secretary of the Department of Health and Human Services. Davis contends the Secretary erred by: (1) failing to set forth adequate reasons for rejecting Davis' testimony regarding his excess pain, and (2) failing to elicit the testimony of a vocational expert as to whether Davis could return to his previous occupation.

Standard of Review

We review de novo the district court's decision granting summary judgment. Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1278 (9th Cir. 1987) (citations omitted), superceded on other grounds, Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir. 1990). In reviewing the denial of the disability claim, this court must affirm if the Secretary's findings of fact are supported by substantial evidence, 42 U.S.C. § 405(g) (1988), and the Secretary applied the proper legal standards. Id. Substantial evidence is the relevant evidence that a reasonable mind can accept as adequate to support a conclusion. We consider the record as a whole, weighing both the evidence that supports and detracts from the Secretary's conclusion. Id.


We find, after a review of the record, that the Secretary's decision to deny Davis disability benefits is supported by substantial evidence and that the Secretary made sufficient findings to support his decision. The Secretary's decision was based upon both the objective medical evidence and Davis' credibility. The Secretary was "free to disbelieve" Davis' complaints of excess pain so long as he made specific findings to justify that decision. Copeland v. Bowen, 861 F.2d 536, 541 (9th Cir. 1988). The Secretary's findings are entitled to "great weight." Green v. Heckler, 803 F.2d 528, 532 (9th Cir. 1986).

The Secretary found Davis' subjective reports of pain not credible because they were not supported by the medical evidence of record and because Davis' own conduct did not indicate disabling pain. Although the Secretary found the medical evidence supports "some degree of discomfort," he observed that Davis has not sought treatment or changed his lifestyle, and has continued with a variety of sedentary and light activities. The Secretary found that the medical evidence indicated that the injury of October 1984 did not cause any significant worsening of Davis' previous physical condition; that Davis did not take any potent, narcotic pain relievers; that Davis did not remain in treatment with an orthopedist; and that his doctor did not recommend such treatment.

The Secretary summarized the medical evidence from each physician Davis had seen from 1984 to 1986. None of this evidence supports Davis' contention of disabling pain. In fact, Davis reported to his physician that he was "feeling fine."

After a review of this record, we agree with the Secretary's assessment of the evidence that Davis does not suffer from disabling pain.

Vocational Evidence

Davis contends that since the Secretary did not elicit testimony as to the requirements of his previous job as county commissioner, the case must be remanded for the testimony of a vocational expert. He claims the Secretary's determination that Davis possessed the residual functional capacity to return to this type of work is without support in the record.

It was Davis' burden to establish a prima facie case of disability by demonstrating that he could not return to his former type of employment. Allen v. Secretary of Health & Human Servs., 726 F.2d 1470, 1472 (9th Cir. 1984). The district court correctly determined that Davis failed to meet this burden. Once the Secretary had determined that Davis was not disabled under 20 C.F.R. Sec. 404.1520(e),1  it was not necessary to proceed to the next step in 20 C.F.R. Sec. 404.1520(f), which is used only when an individual's impairment is so severe as to preclude the performance of past work. See Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) ("Once the claimant shows that he cannot perform his past work, the burden shifts to the Secretary to show that the claimant can do other substantial gainful activity, given his age, education and work experience").



The panel unanimously finds this case suitable for submission on the record and briefs and 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


20 C.F.R. Sec. 404.1520(e) states:

Your impairment(s) must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment(s), we then review your residual functional capactiy and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.

Because Davis was physically and mentally capable of returning to his past employment as a county commissioner, he was properly found to be not disabled, even though that particular job might not be available to him. See Villa v. Hecker, 797 F.2d 794, 798 (9th Cir. 1986) ("The claimant has the burden of proving an inability to return to his former type of work and not just to his former job."); Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990) (same); 20 C.F.R. Sec. 404.1566(c).