Unpublished Disposition, 927 F.2d 610 (9th Cir. 1988)

MEMORANDUM^** 

Eunice Tanner appeals the district court's judgment in her action for disability and supplemental income benefits upholding the Secretary's decision that Tanner is not disabled. We have jurisdiction under 28 U.S.C. § 1291 (1982), and we affirm.

We reject Tanner's argument that the ALJ improperly discredited her testimony of pain. Tanner testified that she suffers pain in her back, neck and knees which allows her to stand or walk only for short periods of time, and to sit only for 30-45 minutes at a time. The ALJ did not reject this testimony; he relied upon it, along with Tanner's comment to Dr. Fry that driving does not bother her particularly, to conclude that Tanner could perform her past work as a telephone solicitor or a taxi driver--jobs which involve sitting and minimal activity.

We also reject Tanner's argument that substantial evidence does not support the ALJ's decision that Tanner can perform her past work. The record indicates the following: Recent cardiovascular tests showed no active cardiac disease. Tanner suffers neck pain with some decreased mobility, but no functional limitations. Tanner suffers from shortness of breath resulting primarily from cigarette smoking; tests revealed no emphysema. Tanner testified that she does some light housework and shopping, and drives herself to appointments. She also testified that she can walk short distances, stand for short periods of time, and sit for 30-45 minutes at a time. Tanner's treating physician and the examining physicians all noted Tanner's obesity and general lack of physical conditioning, but did not indicate any specific physical restrictions or limitations. Although Tanner alleged that she became disabled in February 1985, she worked as a taxi driver from March to December of 1985. In early 1986, Tanner told an examining doctor, Dr. Fry, that driving did not bother her particularly. These facts constitute substantial evidence supporting the ALJ's decision that Tanner could perform her past sedentary work of telephone solicitation or taxi driving. See Nyman v. Heckler, 779 F.2d 528, 530 (9th Cir. 1985) (substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion).

Tanner's difficulty in controlling her bowels, as a result of a bowel bypass surgery, does not negate this conclusion. Dr. Munson felt that Tanner's inability to control her bowels renders her incapacitated because she needs to be close to a toilet. But Tanner testified that special protective clothing allows her to go out despite her bowel problems. She also testified that she felt unable to work primarily because of her pain and alleged emphysema, not her bowel problems. Thus, the ALJ did not err in concluding that Tanner can perform her past work.

Finally, we reject Tanner's argument that the ALJ improperly disregarded the opinion of Tanner's treating physician, Dr. Munson. Munson concluded that Tanner's medical problems resulted in "marked functional limitations," and opined that "I certainly cannot think of many jobs that this woman could carry out," and that "if I was running a cannery, I do not believe that I would hire her in any capacity." Munson's comments establish that Tanner's medical problems make her unable to perform some types of work. The ALJ, relying on his own vocational expertise, found that the jobs of telephone solicitor or taxi driver, which involve primarily sitting and minimal activity, required exertional levels much lower than cannery work. He concluded that these lower exertional levels were consistent with Tanner's medical problems. Thus, the ALJ's decision that although Tanner could not perform medium or heavy work, she could perform light or sedentary work, is consistent with Munson's conclusion.

The decision of the district court is, therefore,

AFFIRMED.

SCHROEDER, Circuit Judge, dissenting,

I respectfully dissent because, in my view, the Administrative Law Judge did not adequately deal with the treating physician's opinion, and we therefore should reverse. See Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).

The Administrative Law Judge mischaracterized the treating physician's opinion. According to the ALJ, the physician's statement that "if I was running a cannery I do not believe that I would hire her in any capacity" meant only that she could not perform cannery work, and left open the possibility that she could do other kinds of work. This is not a correct characterization. In a lengthy letter dated June 12, 1987, outlining specific troubles that both sitting and standing entailed for the claimant, Dr. Munson concludes that he "cannot think of any job which she can perform well." He also states in the same letter that "I am not an occupational therapist, but I cannot think of any job which she could perform well."

A year later, his opinion had not changed. He said:

" [Ms. Tanner is] quite severely limited because of her physical problems.... [Her bowel problem] is almost incompacitating (sic) ... [and] will most likely worsen instead of improve." Letter of May 25, 1988.

"I am not an occupational therapist, but I certainly cannot think of very many jobs that this woman could carry out." Id.

I regret the majority's acceptance of the ALJ's description of the treating physician's opinion.