Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

Evelyn D. HARRIS, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary of Human and Health Services,Defendant-Appellee.

No. 90-35550.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1991.Decided March 18, 1991.

Appeal from the United States District Court for the Western District of Washington; Philip K. Sweigert, United States Magistrate, Presiding.

W.D. Wash.

AFFIRMED.

Before JAMES R. BROWNING, EUGENE A. WRIGHT, and FARRIS, Circuit Judges.


MEMORANDUM* 

Harris appeals the denial of her application for disability benefits. We find that the Secretary's decision was supported by substantial evidence and reject her request to remand based on new evidence of disability.

* Harris injured her right shoulder and arm in an accident in 1982. She applied for disability benefits and was denied in 1985. She refiled in 1987 and a hearing was held before an Administrative Law Judge in 1989. The ALJ found that her complaints of pain were not corroborated by medical evidence and that her testimony was not credible.

Seven weeks after the ALJ denied her application, a psychiatrist diagnosed her with major depression. His report was introduced before the district court, which affirmed the Secretary's decision and refused to remand for evaluation of her mental condition.

II

The Secretary's findings are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g) (1988). Evidence is substantial if it is more than a mere scintilla but less than a preponderance. It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971).

III

We note first that Harris' unappealed denial of benefits precludes her from arguing that she was disabled prior to June 1985. See Lyle v. Secretary of Health and Human Servs., 700 F.2d 566, 568 (9th Cir. 1983). That denial also created a presumption that she is able to work. She now bears the burden of proving that her condition has worsened. Id.

She argues that the ALJ's credibility determination was inconsistent with her behavior and testimony at the hearing and was unsupported by specific evidence. She admits that the amount of pain of which she complains exceeds what could reasonably be expected based on objective medical evidence.

Although an ALJ must "convincingly justify" a decision to reject a claimant's excess pain testimony, Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989), he is not required to believe every allegation of disabling pain. Id. at 603.

The judge was careful to support his discrediting of the pain testimony with specific evidence. He noted that Harris acknowledged having every ailment suggested by counsel. He observed her appearance and demeanor, including the fact that she knelt during the hearing, and concluded that her complaints of extreme discomfort, hearing loss and vision impairment were overdramatized. He noted there appeared to be some inconsistency in her statement that she could drive a car without restrictions and her claim that she could not sit for more than 20 minutes.

The nonmedical evidence suggests that Harris exaggerated or falsified her claims of excess pain. We reject her argument that the ALJ's credibility determination was not supported by substantial evidence.1 

Harris also argues that the ALJ ignored evidence of mental impairment and should have ordered a psychiatric examination. We find no evidence in the record that would suggest a serious mental impairment. Examinations in 1984, 1986 and 1987 indicated that she might be suffering from a variety of mild mental impairments, including mild depression. The ALJ did not ignore evidence of serious mental impairment that was crucial to making an informed decision. Cf. Beecher v. Heckler, 756 F.2d 693, 695 (9th Cir. 1985). He acted reasonably under the circumstances and was not required to order an independent psychiatric evaluation.2 

IV

Harris contends that the psychiatric report she submitted after the Secretary's final decision warrants a remand for further evaluation of her mental condition.

A remand is appropriate if the claimant shows that "there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ..." 42 U.S.C. § 405(g) (1988). We need not determine whether the psychiatric evidence Harris submitted is material because we find that she failed to meet the good cause requirement.

The plain language of the statute requires the claimant to justify or explain the failure to incorporate evidence into the record. The claimant must go beyond showing that the evidence did not exist when the Secretary issued a final decision. See Clem v. Sullivan, 894 F.2d 328, 332-33 (9th Cir. 1990). If the claimant had an opportunity to obtain the evidence in a timely fashion but neglected to do so, good cause will not be found. Id.; Sanchez v. Secretary of Health and Human Servs., 812 F.2d 509, 512 (9th Cir. 1987).

Harris has failed to offer any explanation why she did not seek the opinion of a psychiatrist prior to her hearing. She was represented by counsel who was aware that she had psychiatric evaluations and testing in 1984, 1986 and 1987. Counsel was also aware that her treating physician had recommended a psychiatric evaluation. The record does not support counsel's explanation at oral argument that he requested the ALJ to order a psychiatric evaluation.

We conclude that Harris has failed to satisfy the good cause standard and AFFIRM the judgment of the district court affirming the Secretary's denial of disability benefits.

 *

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

We also reject her argument that the ALJ improperly disregarded medical evidence of disability, including the reports of her treating physician, Dr. Andrews. Dr. Andrews completed a physical evaluation form for Ms. Harris on five separate occasions between December 1987 and February 1989. On each of these evaluations he indicated that she could perform sedentary work

 2

We also reject Harris's argument that the ALJ should have obtained the testimony of a vocational expert. Such testimony is not required when the claimant has failed to carry her burden of showing that she cannot perform any previous relevant work. Miller v. Heckler, 770 F.2d 845, 849-50 (9th Cir. 1985). Here, the ALJ's finding that she could perform her previous work as a telephone clerk was supported by substantial evidence