876 F2d 896 Akman v. Secretary of Health and Human Services

876 F.2d 896

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Daniel B. AKMAN, Jr., Plaintiff-Appellant,

No. 88-1881.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1989.
Decided June 1, 1989.

Before HUG, SCHROEDER and CANBY, Circuit Judges.

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Daniel Akman appeals from the magistrate's decision upholding the determination of the Secretary of Health and Human Services (the Secretary) that Akman is not entitled to disability insurance benefits and supplemental security income benefits. The Secretary's decision to deny benefits " 'will be disturbed only if it is not supported by substantial evidence or it is based on legal error.' " Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir.1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986)). See 42 U.S.C. Secs. 405(g), 1383(c)(3). Reviewing the magistrate's conclusion de novo, Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1278 (9th Cir.1987), we affirm.



Akman is a moderately obese, 51-year-old man with an eighth grade education. He has past relevant work experience as an arc welder/heavy equipment mechanic. In 1984, Akman filed a request for disability insurance benefits and supplemental security income benefits alleging disability on the basis of "heart trouble--open heart surgery." Akman has not worked since July of 1983 and claims that the onset of his disability occurred on October 13, 1983. A series of tests following hospitalization on that date revealed that Akman suffered from severe coronary artery disease. Triple coronary bypass surgery was performed in January of 1984.1


After a hearing, on October 25, 1985 the administrative law judge (ALJ) released his decision denying Akman benefits. The ALJ found that Akman suffered from "severe coronary artery disease, status post triple coronary artery bypass graft surgery, with marked obesity and high grade stenosis at the distal anastomosis of the circumflex graft," and is unable to perform his past relevant work as a mechanic and welder. The ALJ also determined that Akman's "complaints of pain and fatigue are credibly indicative of a significant, but not disabling, degree of functional limitation." Based on his findings, the ALJ held that Akman did not suffer from an impairment or combination of impairments which meets or equals those listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the listings). In addition, he found that Akman has a residual functional capacity for the full range of light work. Therefore, because Akman was, at the time of the hearing, a "younger" individual with an eighth grade education, the ALJ decided that Akman "was not under a 'disability,' ... at any time through the date of this decision." The Appeals Council, after consideration of additional evidence, affirmed the ALJ.


On appeal, Akman contends that the Secretary's decision is not supported by substantial evidence.2 As a second ground for reversal, Akman claims that the ALJ based his decision on a number of legal errors, including a failure properly to consider the opinion of Akman's treating physicians, a failure to enter specific findings regarding the evidence of Akman's pain and fatigue, and improper application of the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the grids), to Akman's case. Finally, Akman argues that the magistrate erred in denying Akman's request for a remand to the Secretary on the basis of new evidence.


I. Substantial Evidence


The Secretary's denial of benefits constitutes a factual determination reviewable under the substantial evidence standard.


'Substantial evidence' means 'more than a mere scintilla,' Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co v. NLRB, 305 U.S. 197, 229 (1938)), but 'less then a preponderance.' Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975). It means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Richardson, 402 U.S. at 402 (citation omitted).


Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (citations omitted). In making a substantial evidence determination, the court "must consider the record as a whole, weighing both the evidence that supports and detracts from the Secretary's conclusion." Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275, 1278 (9th Cir.1987) (citing Green v. Heckler, 803 F.2d 528, 530 (9th Cir.1986)). "Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld." Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.1984) (citation omitted).


Substantial evidence supports the Secretary's conclusion that Akman's condition does not meet or equal the level of severity for coronary artery disease set forth in Section 4.04 of the listings. Section 4.04 requires evidence of specific results of a treadmill exercise test at an exercise level of 5 METS or less or "[i]n the absence of a report of an acceptable treadmill exercise test," angiographic evidence showing "70 percent or more narrowing of a proximal coronary artery [____] (excluding the left main coronary artery)."3 The ALJ discussed the evidence pertaining to ischemic heart disease but did not expressly apply the evidence to the criteria of Section 4.04. The Appeals Council directly addressed the issue and stated "[t]he claimant's representative contends that the claimant's impairment meets section 4.04(B)(7)(b) [regarding 70 percent narrowing of proximal coronary arteries].... The opinion from a physician of the Office of Hearings and Appeals' Medical Support Staff states that the claimant's impairment does not meet/equal this listing."


Dr. Wadler of the Medical Support Staff analyzed the results of Akman's April 1984 treadmill stress test in reaching the conclusion relied on by the Appeals Council. After examining the detail sheet, he found the treadmill test "acceptable" because it carried Akman "through Stage II which is well in excess of the five Mets level that would qualify for a severe impairment." During the test, Akman exercised to a heart rate of 163 and developed no chest distress. Although the test was termed "nondiagnostic" by Dr. Lary, Dr. Wadler felt that it was indicative of the absence of myocardial ischemia. The results of Akman's February 1985 "graded exercise tolerance test," not discussed by Dr. Wadler, provides further support for his conclusions. The 1985 test was not diagnostic of ischemia and showed "moderate exercise capabilities with an excellent heart rate."


However, even if there was not an acceptable treadmill exercise test in the record, substantial evidence would still support the Secretary's conclusion that the requirements of Section 4.04(B)(7)(b) were not met.4 Although the January 1984 catheterization results appear to satisfy the listings, Akman's successful surgery later that month was undertaken to ameliorate his condition. No postoperative test results state that 70 percent or better narrowing exists in any of the relevant proximal coronary arteries--in fact, the specific degree of stenosis is never mentioned in any of the medical reports. Dr. Lary's March 1984 postoperative angiographic examination found "complete occlusions of the left anterior descending, obtuse marginal branch of the circumflex and right coronary artery" which strongly suggests that the listings were met. However, Dr. Wadler reached the opposite conclusion, relying on the fact that any proximal occlusion in the left anterior descending "had been bypassed with good flow in the graft." While the right coronary artery was "small and severely diseased," Dr. Wadler felt there was no clear indication that the occlusion reached 70 percent.


In addition, a finding of 70 percent narrowing is required to support a diagnosis of "ischemic heart disease with chest pain or [sic] cardiac origin." However, substantial evidence supports a conclusion that ischemia is not indicated. Although the myocardial perfusion scan on February 14, 1985 indicated "findings consistent with ischemia in the apex and possibly inferior walls," on February 19, Dr. Von Dollen, Akman's treating physician, stated that a graded exercise tolerance test was "not diagnostic of ischemia." Dr. Von Dollen also did not diagnose ischemia after Akman's May 1985 hospitalization, when he presumably had the scan results. In April of the same year, Dr. Schmidt, another treating physician, would only state that Akman "continues with some anginal symptoms." No other evidence definitely suggests ischemia. Therefore, the Secretary did not err in accepting Dr. Wadler's conclusion that the listings were not met and that Akman was not presumptively disabled.


In addition, there is substantial evidence demonstrating that Akman has the residual functional capacity for a full range of light work.5 Although Akman's performance on treadmill stress tests indicated exhaustion after approximately six to eight minutes and Akman's wife claimed that he could not lift or carry his 23-pound son without chest pain,6 Akman testified at his hearing that he walked for about 45 minutes or one and a half miles per day, could mow and occasionally rake a 10 X 14 foot lawn and was able to tinker with his wood lathe and go fishing. In a disability report dated July 24, 1984, Akman stated that he occasionally fixed his household plumbing, drove his car "whenever needed" and visited neighbors. After the bypass surgery, Akman recovered well and was advised by Dr. Lary "to resume his normal activities," and even "increase his physical activities." As late as December of 1984, Dr. Schmidt suggested that he be retrained for a different job. Consulting physician Dr. Schwartz examined Akman in late 1984 and stated that "[h]e should have some exercise limitations that affect his employability, but should be able to tolerate light physical work."7 Dr. Wadler even suggested that "medium work activity may well be possible."8 Although more recently Drs. Von Dollen and Schmidt have characterized Akman as disabled and have clearly stated that he could not return to work as a welder, they do not discuss the extent of Akman's physical limitations. Substantial evidence demonstrates that Akman is capable of doing substantially all of the activities listed in the "light" work category.

II. Legal Error


Akman contends that the Secretary erred by failing to set forth "specific, legitimate reasons" based on substantial evidence for disregarding the controverted opinions of Akman's treating physicians, Drs. Schmidt and Von Dollen, that Akman is totally disabled. See Davis v. Heckler, 868 F.2d 323, 326 (9th Cir.1989); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). After setting forth the medical evidence, the ALJ rejected the treating physicians' conclusions, stating simply that "the opinions of the claimant's treating physicians have indicated primarily that he is unable to return to his past work even though describing him as totally disabled, the latter being a misstatement or an improper evaluation of the claimant's vocational status." The Appeals Council expands on the ALJ's comments by discussing inconsistencies between the conclusions of disability of Drs. Schmidt and Von Dollen and their related statements encouraging exercise and vocational retraining.


To satisfy the "specific, legitimate reasons" requirement, it is not sufficient to simply state that a treating physician's opinion is not supported by objective findings or is contrary to the conclusions mandated by the evidence. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir.1988). "The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. at 421-22. The ALJ's statement, standing alone, might be insufficient. However, we find that the Appeals Council's discussion of the inconsistency of the treating physicians' conclusions of disability, combined with the ALJ's findings regarding Akman's capabilities in light of his testimony and the medical evidence, is sufficient to satisfy the "specific, legitimate reasons" test.9


Akman also challenges the Secretary's failure to make specific findings before rejecting Akman's claims of pain, fatigue and shortness of breath. This contention is meritless. The ALJ expressly found that "[t]he claimant's complaints of pain and fatigue are credibly indicative of a significant, but not disabling, degree of functional limitation." (emphasis added). Akman's claims of pain and fatigue were not rejected and therefore no findings are necessary.


Similarly, the ALJ discussed why he discounted Akman's claims of shortness of breath and back pain. The ALJ's decision notes "[t]here has been a history of continuing cigarette abuse with pulmonary function testing finding signs of mild to moderate obstructive pulmonary disease, but there has been no indication of any episodes of acute bronchospasm, any impairment of blood gas exchange, any need for bronchodilating medication, or any testing of pulmonary function following the administration of a bronchodilator," and "there was report [sic] of athralgia treated with analgesics, but there was no report of any significant related clinical or laboratory findings." Further mention is made of "claimant's pulmonary disease" later in the decision. Even assuming that specific findings are required in this context, these findings are sufficient.10


Finally, Akman claims that the Secretary erred by applying the grids to his case. Unless a claimant's nonexertional limitations standing alone significantly limit the range of work permitted by his or her exertional limitations, "where an applicant ha[s] both exertional and nonexertional limitations the use of the grids [is] permissible." Polny v. Bowen, 864 F.2d 661, 663 (9th Cir.1988). See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Sec. 200.00(e)(2); Razey v. Heckler, 785 F.2d 1426, 1430 (9th Cir.), modified, 794 F.2d 1348 (1986). There is no support for a conclusion that Akman's alleged nonexertional impairments alone significantly limit his ability to work. Application of the grids was proper.

III. New Evidence


We may remand a case for consideration of new evidence where the new evidence is material and good cause exists for the claimant's failure to incorporate the evidence into the administrative record. Sanchez v. Secretary of Health & Human Servs., 812 F.2d 509, 511 (9th Cir.1987). See 42 U.S.C. Sec. 405(g). Dr. Whitcomb's April 1987 report, while certainly indicative of a deterioration in Akman's condition, does not purport to relate to Akman's condition prior to the Appeals Council's decision on September 16, 1986. In addition, the report was not accompanied by any narrative medical report or clinical documentation. We hold that there is not a "reasonable possibility" that Dr. Whitcomb's report would have altered the Secretary's determination of Akman's disability status and that remand was therefore not necessary. See Booz v. Secretary of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir.1984) (quoting Dorsey v. Heckler, 702 F.2d 597, 604-05 (5th Cir.1983)).11


A showing of good cause is also required to remand for consideration of new evidence. Sanchez, 812 F.2d at 512. Dr. Whitcomb stated on his "Assessment of Abilities to do Work-Related Activities" that he had been treating Akman for one and a half years. Counting backwards, this means Dr. Whitcomb began seeing Akman in approximately November of 1985, a full ten months before the Appeals Council made its decision. Akman does not show good cause or even attempt to explain why Dr. Whitcomb's evaluation was not presented to the Appeals Council. Cf. Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir.1988) (fact that additional evidence could not have been presented at the time of the ALJ's decision was sufficient to establish good cause).




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 Cir.R. 36-3


Although we have independently reviewed Akman's administrative record, the evidence before the Secretary is ably summarized in the magistrate's order and need not be repeated here. Particular evidence is discussed in the disposition when necessary


In this case, the Secretary's final decision refers to the decision of the Appeals Council, which, in turn, expressly incorporated the ALJ's decision


"Proximal coronary arteries" are defined as the right coronary artery proximal to the acute marginal branch, the left anterior descending coronary artery proximal to the first septal perforator and the left circumflex coronary artery proximal to the first obtuse marginal branch. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 4.00(H)(3)


Akman points to the following evidence in the record which allegedly undermines the Secretary's conclusion:


Results of the March 1984 postoperative angiography examination by Dr. Lary which found, inter alia, complete occlusion of the right coronary artery not bypassed by a graft;


Results of a February 1985 Myocardial Perfusion Scan with injected thallium which obtained findings consistent with ischemia and prompted Dr. Von Dollen to comment "good graph to the LAD in 1 om, but the stenosis up to 2nd om and the right was not graphable. At this point he qualifies for complete disability";


Dr. Von Dollen's May 1985 hospitalization admission notes pointing to "high grade" stenosis of the obtuse marginal


"Light work:

involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.


C.F.R. Secs. 404.1568(b), 416.967(b)


Akman claims error because the Secretary "disregarded" the written statement of Akman's spouse. See 20 C.F.R. Secs. 404.1513(e)(2), 416.913(e)(2). Even if her statements were disregarded, they added nothing to Akman's testimony. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984) (Secretary must only explain why "significant probative evidence" is rejected)


Dr. Schwartz also stated "[t]he patient's subjective symptoms are out of line with relatively recent objective medical evaluations of his cardiac status ... [In the absence of additional objective information] it appears that his functional capacity is greater than he would suggest."


Akman seems to suggest that the opinion of Dr. Wadler, a non-examining, consulting physician, cannot serve as substantial evidence because it is contradicted by all other evidence in the record. See Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir.1984) (quoting Millner v. Schweiker, 725 F.2d 243, 245 (4th Cir.1984)). This is untrue. Other evidence supports Dr. Wadler's conclusions


For example, the ALJ noted Akman's testimony that chest pain is brought on "by strenuous physical activity." He also concluded that the "level of exercise during the reported treadmill stress tests contraindicate a finding of a lesser degree of physical capacity."


Relatedly, Akman seems to claim that substantial evidence does not support the ALJ's finding that Akman has no nonexertional limitations, citing the complaints of alleged chest and back pain, fatigue and shortness of breath. This contention is meritless. Nonexertional limitations are those limitations, such as vision problems, dust sensitivity and in some instances pain, which significantly curtail the range of work that might otherwise be permitted by Akman's exertional limitations. Hammock v. Bowen, 867 F.2d 1209, 1214 (9th Cir.1989). Pain, fatigue and shortness of breath may therefore not be nonexertional limitations to the extent that they are strength-related. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 Sec. 200.00(d), (e). Cf. Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 579 (9th Cir.1988) (Pregrerson, J., concurring) (pain is exertional or nonexertional limitation depending upon its effect on strength). At any rate, we find that the Secretary adequately considered, and in some cases even credited, Akman's claims of pain, fatigue and shortness of breath in reaching a decision, whether he categorized the complaints as exertional or nonexertional. The ALJ did not simply ignore the complaints. Any decision to disregard an alleged nonexertional impairment was based on substantial evidence


We note that the failure to submit Dr. Whitcomb's evaluation earlier suggests that Akman's condition has deteriorated significantly in the past 18 months