Unpublished Disposition, 936 F.2d 579 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 936 F.2d 579 (9th Cir. 1989)

Francisco J. SAUCEDO, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary of Health and Human Services,Defendant-Appellee.

No. 90-15060.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1991.Decided June 26, 1991.

Before WALLACE, Chief Judge, and GOODWIN and FLETCHER, Circuit Judges.


MEMORANDUM* 

Francisco J. Saucedo appeals a summary judgment in favor of the Secretary of Health and Human Services upholding the Secretary's decision to deny Saucedo Social Security disability benefits on the ground that Saucedo is not disabled. We affirm.

Saucedo applied for supplemental security income benefits and disability insurance benefits, alleging that he had become disabled on July 5, 1986. The Social Security Administration denied his claim. Saucedo was 56 years of age. He had a hearing before an administrative law judge ("ALJ"), and on July 29, 1988, the ALJ found that Saucedo was not entitled to benefits under Secs. 216(i) and 223 of the Social Security Act ("the Act"). The ALJ's decision was affirmed by the Appeals Council on February 15, 1989, and thus became the final decision of the Secretary.

Saucedo then brought his action before the district court pursuant to Secs. 205(g) and 1631(c) (3) of the Act, 42 U.S.C. §§ 405(g) and 1383(c) (3), which provide for judicial review of final decisions by the Secretary. On November 6, 1989, the district court granted the Secretary's cross-motion for summary judgment, finding that the Secretary's final decision to deny benefits was supported by substantial evidence. This decision is the subject of Saucedo's appeal.

In denying Saucedo benefits, the ALJ reviewed an extensive and conflicting medical record concerning Saucedo's alleged heart condition, musculoskeletal problems, and chronic bronchitis. On July 9, 1986, Saucedo was admitted to Kaiser medical center where a heart examination proved normal except for slightly irregular rhythm with occasional pauses and occasional premature ventricular contractions. Two months later, Saucedo was again hospitalized and discharged with a diagnosis of coronary artery disease with angina.

Between June 30, 1987, and January 4, 1988, Saucedo was examined by Dr. Alan Kneitel, an internist; Dr. Ian Benham, Saucedo's treating cardiologist; Dr. William Ross, an orthopedic surgeon, and by Dr. Esly Barreras at the request of Saucedo's attorney. Of the five physicians, only Dr. Barreras was of the opinion that Saucedo could not perform heavy work or tasks that required repeated bending or stooping. He therefore recommended vocational rehabilitation and that Saucedo perform lighter work in a dust-free environment. Finally, Dr. Edward Kersh, in a one-page note dated March 9, 1988, expressed his opinion that Saucedo is totally and permanently disabled due to coronary artery disease with angina pectoris.

On July 29, 1988, at his administrative hearing, Saucedo testified that he was unable to work due to difficulty walking and lifting, and because of severe pain in his hands. He also said that his heart felt much better.

We set aside a denial of benefits only if the Secretary's findings are based upon legal error or are unsupported by substantial evidence in the record as a whole. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). "Where medical testimony is conflicting, however, it is the ALJ's role to determine credibility and to resolve the conflict. If the evidence admits of more than one rational interpretation, we must uphold the decision of the ALJ." Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (citations omitted).

A claimant must do more than demonstrate that he is physically or mentally impaired; he must also show that he is unable to engage in gainful activity due to his impairment. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Saucedo bears the initial burden of proving that he is entitled to disability benefits under the Act. Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511 (9th Cir. 1987).

Saucedo argues that the district court disregarded substantial evidence of significant impairments in his medical record, and that the ALJ's findings concerning his heart disease, musculoskeletal problems, and chronic bronchitis ignored the evidence introduced. The district court found that Saucedo could return to his former work as a baker despite his alleged heart problems and other infirmities.

Dr. Benham said he suspected that Saucedo suffered from hypertensive heart disease, but he found no evidence of significant coronary artery disease and he therefore suggested that Saucedo could discontinue his cardiac medication.

Dr. Benham was the treating physician, and " [w]e afford greater weight to a treating physician's opinion because 'he is employed to cure and has a greater opportunity to know and observe the patient as an individual.' " Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). After reviewing the conflicting evidence concerning Saucedo's alleged heart condition, the district court properly accepted the ALJ's findings. Allen, 749 F.2d at 579.

With respect to his musculoskeletal problems, Saucedo argues that substantial evidence supports his claim of disability. In September of 1987, Dr. Hooks, a radiologist, found degenerative changes at the A/C joint, but no deformity, malformations, or fracture/specific arthritis. Dr. Ross, an orthopedic surgeon who examined Saucedo at the same time as Dr. Hooks, found that Saucedo did not have an orthopedic condition that affected his ability to return to work. While Dr. Ross found that Saucedo had significantly diminished grip strength, he stated that Saucedo had normal reflexes, sensations, and musculature. Although Dr. Ross noted that Saucedo had vague subjective complaints, he stated there were no objective findings on examination.

Saucedo contends that the radiology examination report upon which Dr. Ross relied was incomplete, and that his conclusions are therefore only partially supported. Saucedo further observes that Dr. Barreras diagnosed him as having degenerative disc disease with a protruding disc. Dr. Barreras concluded that the disc disease in combination with other alleged impairments only precluded Saucedo from engaging in heavy work and tasks that involve repetitive bending or stooping. This conclusion is consistent with a finding that Saucedo is not disabled and capable of performing light work. The ALJ, however, relied on Dr. Ross's report in resolving the conflicting testimony, and the ALJ's conclusions must be upheld where the evidence admits of more than one interpretation. Sample, 694 F.2d at 642.

Finally, Saucedo observes that Dr. Barreras reported that Saucedo had moist rales heard throughout the lung fields which indicated a pulmonary condition "thought to be chronic bronchitis." T.R. at 180. While acknowledging this report, the ALJ found that Saucedo failed to prove his bronchitis was "sufficiently severe to impose significant functional limitations of 12 months' duration."1  T.R. at 12. Significantly, Dr. Barreras's report noted that Saucedo was being evaluated for the condition thought to be chronic bronchitis. T.R. at 180. Saucedo, however, submitted no evidence or information concerning the results of his additional evaluations.

A physician's statement of disability is not dispositive; the weight given to such statements hinges on the ALJ's review of medical findings and other evidence. 20 C.F.R. Sec. 404.1527. Saucedo submitted no evidence indicating that his condition satisfied the disability requirements under 20 C.F.R. Sec. 404.1505, and Dr. Barreras's finding rested on a single visit and was not substantiated by further evidence. Therefore, we uphold the ALJ's conclusions.

Saucedo argues that there is no substantial evidence to support the finding that his subjective complaints were not credible. The record demonstrates that Saucedo claims to suffer from a variety of pains, notably in his hands. The district court, however, found that the ALJ relied on testimony and medical reports to discredit Saucedo's subjective complaints. "The ALJ's findings on the amount of claimant's pain necessarily involved a question of credibility. An ALJ's assessment should be given great weight. Further, a claimant's self-serving statements may be disregarded to the extent they are unsupported by objective findings." Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (citations omitted). The medical record supports the ALJ's determinations, and they therefore should not be disturbed.

Saucedo relies on Stewart v. Sullivan, 881 F.2d 740, 743 (9th Cir. 1989), for the proposition that the ALJ must convincingly justify the rejection of his excess pain testimony. The concept of excess pain arises when a claimant suffers more pain than would be expected based on objective medical findings. Id. In this case, however, the concept of excess pain is inapplicable because Saucedo did not present "objective medical findings which establish a medical impairment that would normally produce some amount of pain." Id.

The district court did not ignore substantial evidence of significant impairments in Saucedo's medical record, and there was substantial evidence to support the finding that Saucedo's subjective complaints were not credible. We therefore uphold the decision of the district court and deny Saucedo's request for attorney fees.

AFFIRMED.

 *

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

Under 20 C.F.R. Sec. 404.1505, disability is defined as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment, which makes you unable to do your previous work or any other substantial gainful activity which exists in the national economy." Employing this definition, the ALJ found that Saucedo was not disabled. T.R. at 12-13