881 F2d 1084 Mann v. R Bowen

881 F.2d 1084

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Samuel A. MANN, Plaintiff-Appellant,
v.
Otis R. BOWEN, Secretary of Health and Human Services,
Defendant-Appellee.

No. 87-4035.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1989.
Decided Aug. 4, 1989.

Before SCHROEDER, POOLE and NELSON, Circuit Judges.

1

MEMORANDUM*

2

Samuel A. Mann appeals the district court's decision upholding the denial of his applications for disability insurance and supplemental security income benefits by the Secretary of Health and Human Services (Secretary). The Secretary determined that, although Mann could not perform his past relevant work, he retained or had regained the functional capacity to perform a full range of light work.

3

Because the Secretary's determination is not supported by substantial evidence, we reverse and remand the matter to the district court with instructions to direct the Secretary to make further findings consistent with this decision.

BACKGROUND

4

Mann applied for disability insurance and supplemental security income benefits, claiming a disability onset of October 10, 1984 when he experienced a heart attack. The Secretary denied his applications. In January 1986, an administrative law judge (ALJ) conducted a hearing at which Mann was represented by counsel. The ALJ found that Mann was not capable of performing his past heavy work but that he was not disabled because he retained the residual functional capacity to do light work. The Appeals Council denied Mann's request for review, the district court affirmed the Secretary's decision, and Mann appealed.

ANALYSIS

5

* We will set aside a denial of benefits only if the Secretary's decision was based on legal error or is unsupported by substantial evidence. 42 U.S.C. Sec. 405(g); Keller v. Bowen, 848 F.2d 121, 123 (9th Cir.1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

II

Claimant's Functional Capacity

6

Mann contends that the ALJ erred in deciding that Mann had the capacity to perform light work.

7

Mann was 47 years old at the time of his heart attack in October 1984. He underwent triple bypass surgery in December 1984. He experienced chest pains thereafter. Tests showed that one limb of the bypass had become completely occluded, that he was hypertensive, and became fatigued easily. He claimed that he suffered from disabling pain beginning in October 1985. The report of his treating cardiologist provided support for that claim.

8

A. Treating and Examining Physicians' Opinions

9

Mann contends that the ALJ failed to specify reasons for discounting the medical opinions of Dr. Ritzman, his treating cardiologist, and Dr. Taylor, an examining doctor, and relying instead on the opinions of three non-examining, non-cardiologist, government doctors.

10

The medical opinion of a claimant's treating physician is entitled to special weight. Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir.1988). If the ALJ disregards the treating physicians' medical opinion, even if controverted, he must make findings setting forth "specific, legitimate reasons for doing so" that are based on substantial evidence in the record. Id. Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986). The opinions of non-treating, non-examining doctors do not constitute substantial evidence when contradicted by all other evidence in the record. Gallant v. Heckler, 753 F.2d at 1454. Moreover, if the ALJ disregards uncontroverted medical evidence, he must set forth clear and convincing reasons for doing so. Cotton, 799 F.2d at 1408; Fife v. Heckler, 767 F.2d 1427, 1431 (9th Cir.1985). When a claimant's condition is progressively deteriorating, the most recent medical report is the most probative. Young v. Heckler, 803 F.2d 963, 968 (9th Cir.1986).

11

The ALJ discounted Dr. Ritzman's conclusions that Mann experienced angina1 with exertion or emotional stress, that he became fatigued easily, and that he was "not employable in the competitive market where full 8 hours of work is required."2 The ALJ gave no reasons for rejecting Dr. Ritzman's opinions.3 Dr. Ritzman's report was the most recent, and both his report and Mann's testimony indicated that Mann's heart condition was deteriorating. Moreover, Dr. Ritzman's findings were uncontroverted. Dr. Taylor conducted his examination nine months before Dr. Ritzman's examination, and nothing in Dr. Taylor's report is inconsistent with Dr. Ritzman's findings reflecting progressive deterioration. The government's doctors similarly did not directly contradict Dr. Ritzman's report, since they based their conclusion that Mann could perform light work on Dr. Taylor's report and earlier records. See Young, 803 F.2d at 968.

12

The ALJ's failure to specify reasons for disregarding Dr. Ritzman's findings constituted legal error. See Cotton, 799 F.2d at 1408. If the ALJ had properly considered Dr. Ritzman's report, he might have concluded that Mann had a disability that could be expected to last for more than twelve months, or else that Mann could perform only sedentary work. See Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985).

13

The ALJ also erred by failing to specify reasons for discounting Dr. Taylor's conclusion that Mann appeared to be an American Heart Association (AHA) Class III-C patient. Class III-C patients are comfortable at rest but "less than ordinary physical activity" causes fatigue, shortness of breath, heart palpitation or anginal pains. AHA, Diseases of the Heart and Blood Vessels: Nomenclature and Criteria for Diagnosis (6th ed., 1964). Although we have not consideed the significance of the AHA classifications, all circuit courts that have done so have found Class III impairments to be consistent with disability. See Keegan v. Heckler, 744 F.2d 972, 977 (3d Cir.1984); Jackson v. Schweiker, 696 F.2d 630, 631-32 (8th Cir.1983); Vitek v. Finch, 438 F.2d 1157 (4th Cir.1971). Dr. Taylor's conclusion that Mann seemed to be a Class III-C patient should have been expressly considered by the ALJ. See Cotton, 799 F.2d at 1408.

B. Subjective Pain Testimony

14

Mann also contends that the ALJ erred by failing to consider his testimony concerning disabling pain.

15

We have consistently treated subjective pain testimony as an important factor in the disability determination process. Varney v. Secretary of Health and Human Services, 846 F.2d 581, 583, aff'd on rehearing, 859 F.2d 1396 (9th Cir.1988). Pain testimony should be considered "so long as the pain is associated with a clinically demonstrated impairment ... that could reasonably be expected to produce the pain or other symptoms alleged." Id. at 583-84 (emphasis in original). Reasons for rejecting pain testimony must be clear and convincing if medical evidence establishes an objective basis for some pain and no evidence affirmatively suggests that the claimant was malingering. Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir.1984).

16

Here, the ALJ discredited Mann's pain testimony, noting that there was an absence of supporting medical evidence and that Mann did not appear to be in discomfort during the hearing. However, medical evidence, including Dr. Ritzman's report, did support Mann's pain testimony, and there was no evidence to suggest that Mann was malingering. The fact that Mann did not appear to be in pain during the 40-minute hearing is not a valid reason to have discounted his testimony. See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985) (condemning "sit and squirm" jurisprudence). Accordingly, the ALJ erred by failing to consider Mann's pain testimony.

III

The Medical-Vocational Guidelines

17

Mann contends that the ALj failed to apply the medical-vocational guidelines ("grids") properly.

18

Once a claimant demonstrates that he cannot return to his former employment, the burden shifts to the Secretary to show that the claimant can perform other types of work in the national economy, given the claimant's age, education, and work experience. Burkhart, 856 F.2d 1340. The Secretary can satisfy that burden by applying the grids, unless the claimant suffers from nonexertional limitations, such as pain or the need to avoid stressful environments, in which case the Secretary must weigh conflicting evidence concerning those limitations in applying the grids, or else take the testimony of a vocational expert. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Secs. 200.00(a)(d) (1982); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 577 (9th Cir.1988); Burkhart, 856 F.2d at 1341 n. 4.

19

We remand because the ALJ did not consult a vocational expert and, in applying the grids, failed to consider substantial evidence concerning Mann's pain limitations and his need to avoid stressful environments.

IV

Presumptive Disability

20

Mann contends that his heart condition was sufficiently severe to render him presumptively disabled. A claimant is presumed disabled if he has an impairment "which meets the duration requirement and is listed in Appendix 1 or is equal to a listed impairment...." 20 C.F.R. Sec. 404.1520(d).

21

First, Mann claims that he established that one of his proximal coronary arteries was more than 70 percent occluded, an impairment listed in Appendix 1 at Sec. 4.04(B)(7)(b). Although medical records showed that one of Mann's arteries and a bypass graft were 100 percent occluded; the records were inconsistent concerning the location of the occluded artery.

22

Second, Mann claims that his ST depression level met the requirements of Sec. 4.04(A)(1). Even if he did establish a prima facie showing as of February 1985, he failed to show that the disability was likely to last twelve months or longer because, in January 1986, Dr. Ritzman observed only "mild" ST changes.

23

Third, Mann claims that his left ventricular ejection fraction of .34 was medically equivalent to .30, the maximum permitted to establish presumptive disability under Sec. 4.04(B)(8). However, Mann offered no evidence to support that contention.

24

Given that Mann failed to establish that his impairments were the same as, or medically equivalent to, listed impairments, the ALJ did not err in rejecting Mann's claim of presumptive disability. See Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987).

25

Because we find that this case must be remanded, we suggest that on remand the ALJ should consider soliciting a statement from Dr. Ritzman or another of Mann's treating cardiologists, interpreting the records that are part of the administrative record in order to try to ascertain the location of Mann's occluded artery and graft, pursuant to 42 U.S.C. Sec. 405(g) (1982). See Embrey v. Bowen, 849 F.2d 418, 424 (9th Cir.1988).

CONCLUSION

26

Mann requests this court to remand for payment of benefits. Although the ALJ's decision is not supported by substantial evidence, it is possible that, upon proper consideration of the evidence, the ALJ could identify sufficient evidence to support his finding that Mann was not disabled. Accordingly, we decline to find at this stage that the ALJ could not sustain his burden. See Cotton, 799 F.2d at 1408.

27

We reverse and remand the matter to the district court with instructions to direct the Secretary to make further findings consistent with this decision.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

1

Angina of the chest is a "constriction or pressure type of substernal pain of short duration produced by exercise or emotion...." Weinreb, Lee, Goldberg, & Breall, "Heart Disease," in Attorneys' Textbook of Medicine (Gordy & Gray 3d ed. 1984)

2

The Secretary claims on appeal that, "It is clear from the context of the paragraph that Dr. Ritzman's conclusion that Mann is 'not employable' is in direct reference to his past work involving heavy construction." We reject that inference. The sentence's plain meaning is that Mann could not work a full 8-hour day. The Secretary bears the burden of showing that Mann can perform gainful work, in light of the Secretary's concession that Mann cannot perform his past work. See Hoffman v. Heckler, 785 F.2d 1423, 1424 (9th Cir.1986)

3

The ALJ did note Dr. Ritzman's assessment that Mann, by gaining some 35 to 40 pounds since his surgery, had not fully cooperated in his rehabilitation. If the ALJ considered that assessment a ground for rejecting Dr. Ritzman's opinions, the ALJ was required to provide reasons. See Cotton, 799 F.d at 1408. In any event, Mann's weight gain--in light of his having stopped smoking after his heart attack, his inability to exercise, and the medical evidence that he had lost twenty pounds before surgery--does not constitute significant noncooperation. See 20 C.F.R. Secs. 404.1530, 416.930; Holquin v. Harris, 480 F.Supp. 1171, 1179 (N.D.Cal.1979)