Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1991)

Georgene BARNES, Plaintiff-Appellant,v.Louis SULLIVAN, M.D., Secretary of Health and HumanServices, Defendant-Appellee.

No. 90-15354.

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 1991.* Decided May 22, 1991.

Before CHOY, GOODWIN and CANBY, Circuit Judges.


MEMORANDUM** 

Georgene Barnes appeals from summary judgment denying her application for disability insurance and supplemental security income (SSI) benefits under Titles II and XVI of the Social Security Act. Barnes alleges that the district court erred (1) when it determined that she is not "disabled" under section 1614(a) (3) (A) of the Act, and (2) because, in making that determination, it relied upon an "incorrect" legal standard, set forth in Bates v. Sullivan, 894 F.2d 1059 (9th Cir. 1990). According to Barnes, this led the district court to improperly discount the credibility of her allegations of pain because they were unsupported in basis and degree by objective evidence of her medical condition. Barnes contends that Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986), establishes the "correct" standard in this circuit for evaluating a claimant's unsupported testimony of disabling pain.

We need not, as she requests, await the results of rehearing in Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir. 1990), reh'g granted, 925 F.2d 1236 (1991), and Rice v. Sullivan, 912 F.2d 1076 (9th Cir. 1990), reh'g granted, 925 F.2d 1236 (1991). We AFFIRM because, under either legal standard, the medical testimony of her own physicians and of the Government's physician indicates that her pain does not constitute a disability.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment against Barnes. Miller v. Heckler, 770 F.2d 845 (9th Cir. 1985). "The findings of the Secretary [of the Department of Health and Human Services] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); Miller, 770 F.2d at 847. Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Miller, 770 F.2d at 848 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotations omitted).

ANALYSIS

A person is "disabled" if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d) (1) (A); cf. 42 U.S.C. § 1382c(a) (3) (A).

The claimant bears the initial burden of proving entitlement to disability and SSI benefits. Sanchez v. Secretary of Health & Human Servs., 812 F.2d 509, 511 (9th Cir. 1987). She establishes a prima facie case of disability by showing that her impairment prevents her from performing her previous occupation. The burden then shifts to the Secretary to show that the claimant can perform other types of work that exist in the economy, given her residual functional capacity. Cotton, 799 F.2d at 1405.

In this case, substantial medical evidence, including the testimony of her own examining physicians, supports the Secretary's finding that Barnes was not disabled. Unlike Rice, Bunnell, and Cotton, there is no medical testimony in the excerpt of record that Barnes was disabled. In Rice, 912 F.2d at 1078-79, Rice's rheumatologist Dr. Emori "consistently concluded that Rice 'is not functionally capable of work [ing].' " (brackets in original).

In Bunnell, 912 F.2d at 1151-52, Bunnell's treating physician, family practitioner Dr. Orchard, "opined that Bunnell was 'unemployable' since 'she cannot stand for long, or sit for long, and because of limited training.' " In Cotton, 799 F.2d at 1406-07, Cotton's treating physician "Dr. Sciarone stated that Cotton 'is totally and permanently disabled' and he expected her symptoms to worsen with the passage of time." Thus, in Rice, Bunnell, and Cotton, there was contradictory medical testimony regarding the conditions of the claimants. Here, the medical testimony is of one voice--no physician describes Barnes as disabled, unemployable, or unable to work.

Under the Cotton standard, the ALJ must make specific findings, stating which pain testimony is not credible and which medical evidence undermines the claim of disability. Bates, 894 F.2d at 1062 (Thompson, J., dissenting in part A of his majority opinion). The ALJ cannot simply discredit subjective pain testimony solely on the ground that it is not fully corroborated by objective medical findings. Id. (citing Cotton, 799 F.2d at 1407). Here the ALJ has set forth the medical testimony, including testimony of her own physicians, which undermines Barnes's claim. In this light, the ALJ found Barnes's testimony unpersuasive.

Under the Bates majority standard, the ALJ may disregard a claimant's subjective pain testimony unless it is corroborated by medical testimony. Bates, 894 F.2d at 1072. Here, none of the medical testimony indicated that Barnes was disabled by pain.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)

 **

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