OpenJurist

904 F2d 710 Pieper v. R Bowen

904 F.2d 710

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Bonita C. PIEPER, a/k/a Bonita C. Gottsch, Plaintiff-Appellant,
v.
Otis R. BOWEN, Secretary of Health and Human Services,
Defendant-Appellee.

No. 89-35578.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1990.
Decided June 8, 1990.

Before JAMES R. BROWNING, ALARCON and KOZINSKI, Circuit Judges.

1

MEMORANDUM*

2

Bonita Pieper appeals from the affirmance by the district court of the Secretary's determination that she was not entitled to disability insurance benefits pursuant to 42 U.S.C. Secs. 416(i) and 423(d) (Sections 216(i) and 223(d) of the Social Security Act). Pieper contends that the Administrative Law Judge's (ALJ) conclusion that she possesses the residual functional capacity to perform light or sedentary work is not supported by substantial evidence. Pieper seeks reversal on the following grounds:

3

One. The ALJ failed to provide legitimate reasons for rejecting the uncontroverted opinions of two psychiatrists and a psychologist that she was unable to perform substantial gainful work based on her combined physical and mental impairments.

4

Two. The ALJ failed to consider the combined impact of her physical and mental impairments on her ability to perform substantial gainful work.

5

Three. The ALJ failed to set forth clear and convincing reasons for rejecting the uncontroverted opinion of Dr. Randall Gore, a treating physician.

6

Four. The ALJ failed to articulate the reasons for discrediting her testimony concerning excess pain.

7

Five. The Secretary failed to carry the burden of demonstrating that she could engage in substantial, gainful work in light of the evidence that she could no longer perform her previous occupation.

8

We disagree with each of these contentions and affirm. We begin our review of these arguments with a recitation of some of the factual background and procedural history of these matters. We then discuss each of Pieper's contentions and additional relevant facts under separate headings.

9

* FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Physical Impairment Claims

10

Pieper was injured in a rear-end collision on March 16, 1979. She sustained facial injuries and lost consciousness. Thereafter, she complained of neck pain, tired and painful arms, headaches, and intermittent hand and arm paresthesia.

11

On December 5, 1979, Pieper underwent an anterior cervical disk excision and anterior foramenotomy with fusion of the C5-6 level. Following this surgery, she continued to have pain and burning sensations from the back of her neck to the upper dorsal spine with radiation of pain down the right arm with soreness and tingling in the right hand and forearm.

12

On January 3, 1980, Pieper applied and received disability benefits because of her physical impairment. On October 3, 1980, she was admitted to the hospital for additional surgery. She underwent a posterior cervical fusion of C4-5 and 6 with wiring of the posterior spinous processes of C4-5 and 6. She also received a bone graft with bone removed from the left posterior iliac crest. In June of 1981, her benefits were terminated after her physician found that she could return to work.

13

On December 26, 1981, Pieper was involved in another traffic accident. She suffered sudden sharp neck pain. Cervical spine X-rays showed a solid fusion of the bodies of C5 and C6. Dr. Donald Smith examined her on January 5, 1982. He opined that she could return to light work within 60 to 90 days.

14

On July 26, 1982, Pieper filed a second application for disability benefits. The application was denied on August 19, 1982. Pieper did not appeal.

15

Dr. Martin Johnson performed a neurological examination on February 2, 1983. He concluded that she had early signs of thoracic outlet syndrome. On March 21 1983, Pieper underwent a scalenotomy in order to relieve her complaints of neck and shoulder pain as well as right-arm paresthesia. In that same month, Pieper filed a third application for disability benefits based upon her physical condition. Pieper received notice of an unfavorable decision on April 6, 1983. Pieper requested reconsideration and submitted an amended application on April 27, 1984. Her request for reconsideration was denied. She requested a hearing. Administrative Law Judge Charles Evans rejected her claim on January 11, 1985. Pieper did not request review.

B. Pending Mixed Claim

16

On February 20, 1986, Pieper filed the present claim for disability benefits. Her application was denied. Her motion for reconsideration was also denied. Pieper requested a hearing before an ALJ. After an evidentiary hearing at which Pieper testified, Administrative Law Judge Dale Crabtree denied the claim on March 10, 1987. Pieper requested review of this decision by the Appeals Council of the Social Security Administration.

17

The Appeals Council remanded in part for further proceedings because the ALJ's decision did not reflect the consideration given to Dr. Quin Cochran's mental status evaluation dated September 18, 1986.

18

After conducting an evidentiary hearing, Administrative Law Judge W.C. Lynch denied Pieper's claim on March 29, 1988. Judge Lynch declined to reopen any of Pieper's prior claims on the ground that she had failed to seek a timely review and no new evidence was presented. The ALJ concluded that these prior adjudications were final as to any claim of disability prior to January 11, 1985. Pieper does not challenge this ruling. Appellant's Opening Brief at 4 n. 1. The doctrine of res judicata applies to any claim for disability for the period prior to January 11, 1985. Stuckey v. Weinberger, 488 F.2d 904, 911 (9th Cir.1973) (en banc).

19

The ALJ also concluded that Pieper failed to overcome the presumption that she continues to be able to perform substantial gainful employment arising from the prior final adjudications. Pieper does not contest nor discuss the applicability of this presumption in this matter. Instead, she argues that the evidence she produced demonstrates that she is unable to perform substantial gainful work because of the combined impact of her physical and mental impairments.

20

After considering the weight of the evidence, and the credibility of the various witnesses as well as the persuasive impact of the written submissions, Judge Lynch concluded that Pieper had failed to "establish the existence of any medically determinable mental impairment which, when considered either in isolation or in combination with any medically determinable physical impairments, would be of such severity as to prevent the claimant from performing substantial gainful activity for any period of 12 consecutive months." Order of Dismissal and Decision at 21.

21

Judge Lynch credited the opinions of Pieper's treating physician and the court's medical advisor that the record does not establish that the claimant was suffering from a mental impairment that prevented her from performing substantial gainful work. The Appeals Council declined to review Judge Lynch's decision.

22

Pieper filed this action pursuant to 42 U.S.C. Sec. 405(g) for judicial review of the Secretary of Health and Human Services' denial of her application for disability and disability insurance benefits. After reviewing the entire record, the district court concluded that substantial evidence supported Judge Lynch's conclusion that Pieper is able to engage in substantial gainful work and is therefore not disabled. Pieper has timely appealed.

II

STANDARD OF REVIEW

23

We review a grant of summary judgment de novo. Paulson v. Bowen, 836 F.2d 1249, 1250 (9th Cir.1988). When reviewing an ALJ's denial of disability benefits, this court will affirm if the findings are supported by substantial evidence and the Secretary applied the correct legal standards. McAlister v. Sullivan, 888 F.2d 599, 601 (9th Cir.1989). "Substantial evidence means 'more than a mere scintilla,' but 'less than a preponderance.' It means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted)); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988). We must consider the administrative record as a whole to make this determination, "weighing both the evidence that supports and detracts from the ALJ's conclusion." Id. We defer to the ALJ's resolution of any conflicts in the evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989).

24

A disability claimant bears the burden of proof in establishing her disability. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989). Once a prior application concerning the same claims has been denied and the decision has become final, "a presumption that the claimant is not disabled attaches." Id. The claimant "must present evidence of 'changed circumstances' that would establish disability." Id. (quoting Lyle v. Secretary of Health & Human Servs., 700 F.2d 566, 568 (9th Cir.1983)).

III

DISCUSSION

A. Evidence of Mental Impairment

25

Pieper's primary contention on appeal is that the ALJ rejected the uncontradicted opinions of two psychiatrists and a psychologist that she suffers from a mental impairment that precludes her from engaging in substantial gainful work. We read the record differently. The expert opinions, relied upon by Pieper to show that she was entitled to disability benefit, were contradicted by the report of her treating physician and the opinion of the ALJ's medical advisor that her history did not support the conclusion that she was suffering from a psychiatric disorder that precluded her from performing substantial gainful employment.

26

Dr. Paul Altrocchi, M.D., a neurologist, treated Pieper in 1986 for sympathetic nervous system dysfunction in the right arm. Based on the history recited by Pieper and his medical examination, Dr. Altrocchi concluded that she suffered from chronic whiplash symptoms primarily involving the right posterior cervical and trapezius muscles. These muscles were very tender at the time of the examination. She exhibited typical sympathetic nervous system dysfunction in the right arm. Dr. Altrocchi also noted that her "[m]ental exam was normal."

27

On November 7, 1986, Dr. Altrocchi supplied Administrative Law Judge Crabtree with the chart notes of his treatment of Mrs. Pieper on 8 occasions between April 23, 1986 and October 17, 1986. Dr. Altrocchi also commented as follows:

28

(1) Her medical problem in the right arm has been vastly misunderstood by the medical profession for a number of years and most of that which has been done to her has caused her more harm than good.

29

(2) She represents a classical example of the disabling effects of sympathetic nervous system dysfunction in the right arm, beautifully described for the first time in the neurological literature in the 1860s by S. Weir Mitchell, describing similar symptoms under the term "causalgia" following bullet wounds in the Civil War.

30

(3) All of the tissues in her right hand including skin, subcutaneous tissue, and bone, are supersensitive, making the hand virtually impossible to use effectively. Her hand is discolored, cold, and swollen and she carries it in a typical protective manner.

31

(4) All of her disability in the right arm is completely and totally organic and not psychiatric. The patient is certainly depressed, as you or I would be with her symptoms and disability, especially after all of the surgical procedures she has had. There is absolutely no embellishment going on in this patient with regard to her right arm disability.

32

(5) The "Physical Capacities Evaluation" form which you sent for me to fill out is not a neurological form and therefore cannot be filled out by this office. It is a social form and not a medical form and therefore should be filled out by a job-expert in conjunction with the patient.

33

(6) Both legs and her left arm function normally. If a job can be found which would be limited to the use of both legs and the left arm, she could clearly do it. Unfortunately, such jobs do not appear to be available in Central Oregon and she is not hireable in this part of the State. Unfortunately, sympathetic nervous-system dysfunction in an extremity is not well-understood by physicians in general, is not claimed by any speciality [sic] as part of their field, is usually mis-diagnosed by members of the medical profession, and is usually treated inappropriately. This is as true in Boston, New York, or Palo Alto as it is in Central Oregon.

34

(7) As long as her right arm is functionally-useless due to sympathetic nervous system dysfunction, I believe she is basically unemployable and therefore deserves disability.

35

(emphasis in the original text).

36

Dr. Altrocchi's chart for May 27, 1986, reflects the following diagnosis and comments:

37

For reasons not clear to me, Social Security denied that she had any significant disability and states that she could easily do her previous job.

38

Unfortunately, chronic sympathetic nervous system dysfunction is poorly understood by most physicians. Usually the diagnosis is missed or it is claimed that the patient is embellishing, faking, malingering, etc., when this is certainly not the case.

39

Her symptoms are entirely typical and she absolutely and definitely disabled by them. Her hand and arm are very super-sensitive and she has a functionless right extremity, markedly made worse by any activity and she has significant muscle spasm in the upper arm and trapezius area.

40

The denial report states that her surgery gave her "good results". This is preposterous since none of the three operations had any medical indications at all, in my opinion, and therefore they had no chance of benefitting her and they didn't!

41

She is appealing her decision and I entirely concur in this. I warned her that it was highly probable that future consultants would miss the diagnosis, call her psychiatric, or want myelograms, further surgery, etc., which completely miss the mark. She is prepared for this mis-diagnostic onslaught, as I am also!

42

On September 17, 1986, Dr. Altrocchi made the following comment in his patient's medical chart:

43

Her problems continue to be chronic sympathetic nervous system dysfunction in the right hand plus secondary muscle pain including the right pectoralis major from improper posturing. All of her symptoms are very organic and very typical but I predict she will continue to be misunderstood medically and socially.

44

It is as clear as Dr. Altrocchi can put it that he believes that his patient is suffering from a disabling organic disorder that can be falsely diagnosed as a psychiatric problem because her physical condition is "poorly understood by most physicians."

45

Dr. Altrocchi noted that Pieper was depressed, but concluded that this reaction was to be expected in any person suffering from her symptoms and organic disability and was not evidence of a disabling psychiatric disorder. Thus, contrary to Pieper's contention, the evidence of her alleged psychiatric impairment is not uncontroverted.

46

The day following Dr. Altrocchi's September 17, 1986 examination of Pieper, she was evaluated by psychiatrist, Quin Cochran, M.D., at the request of her attorney. Dr. Cochran concluded that she was suffering from the DSM III diagnosis of "major depression, recurrent." The only reference to Pieper's complaint of depression in Dr. Cochran's report is the following sentence:

47

She complains of being bitter and depressed and angry about the people who have done things to her to put her where she is plus the fact that nothing is being done, yet she tends to smile quite a bit while talking about this."

48

Dr. Cochran also noted that "[s]he shows quite a bit of endogenous and exogenous anxiety both in that form and in the form of depression but does try to cover it up as much as possible." Dr. Cochran summarized his evaluation as follows:

49

Bonita-Pieper-Gottsch is a 39 year old woman who comes for a Mental Status Evaluation complaining of pain and limitation of the right hand, arm and shoulder. This came on immediately after an automobile accident in March of 1979 and made worse by another automobile accident in December of 1981. She has had four surgeries on her neck including two fusions, a neck wiring, a Scalectomy [sic] and a removal of the first rib. She has continued to have excrutiating pain in spite of these surgeries and in spite of four series of physical therapy treatment. This evaluation shows no signs of a thought disorder but certainly does reveal a woman who is suffering from generalized anxiety and who is quite depressed but covering it up considerably. She appears also to be suffering from a psychogenic pain disorder meaning that although the pain is real appears to be out of proportion to the anatomical findings. I believe that the real pain far out weighs the psychogenic factor. At the present time I think this woman is certainly emotionally not able to work and it appears that she is not able to work from the physical standpoint. I have suggested to her the possibility of going to a pain clinic and she states she cannot afford it. If this can be worked out, I feel she may profit by it. At this point I see her as having pretty well given up.

50

As predicted by Dr. Altrocchi, Dr. Cochran's report makes no mention that she suffers from sympathetic nervous system dysfunction in the right arm. Furthermore, Dr. Cochran does not state in his report that he reviewed Dr. Altrocchi's medical records concerning Pieper, or consulted with her treating physician prior to concluding that she was suffering from "a psychogenic pain disorder."

51

While Dr. Cochran lists various psychiatric disorders, including major depression, and cited to sections of the DSM III, he did not compare the criteria that must be found to support a diagnosis of mental illness, nor did he set forth the data he relied upon in making his evaluation. It is also unclear whether Dr. Cochran equated his observation that Pieper is "quite depressed" with the disorder labeled "Major depression, recurrent" as defined in the DSM III.

52

On August 11, 1987, Pieper was referred to a psychologist, Timothy A. Boyd, Psy.D. for an evaluation. At the beginning of the examination, Pieper stated: "I don't understand why I have to see a nut guy. Anybody would be depressed if their whole life got turned around." When asked by Dr. Boyd if she perceived herself as depressed, she replied: "I'm not depressed at all."

53

Dr. Boyd administered the MMPI psychological test to Pieper. The results indicated "symptomatic depression and anxiety though not in extreme form. The evidences of depression indicate that the depression is not her primary complaint." Dr. Boyd's report contains the following conclusions:

54

The following DSM III diagnoses are to be assigned:

55

Axis II: 307.80 Psychogenic Pain Disorder.

56

296.33 Major Depression, Recurrent with melancholia

57

Axis III: Physical disorders would be the after effects of her neck injury

58

Axis IV: Severity of psychosocial stressors: 5--Severe

59

Serious illness in self and separation and pending divorce

60

Axis V: Highest level of adaptive functioning: 6--Very Poor

61

This patient is functioning under a great amount of pain arising from her physical injuries. She also demonstrates a personality structure which is hysteroid in nature. The dynamics involved in this personality style relate to conflicts over dependency, chronic feelings of irritability toward others, feelings of being used, and a lack of awareness of her own egocentricity, prominent use of the defenses of denial and repression, and lack of self awareness of herself and her motivations. This hysteroid style is manifested in a psychogenic pain disorder where the amount of her pain is likely in excess of what can be expected from her physical injury. In addition, she suffers from a reactive depression with symptoms of poor appetite, insomnia, fatigue, and loss of interest in pleasure in usual activities. This depression relates to the extreme feelings of loss she experiences in regard to her ability to function. She is greatly upset about the limitations that her physical disability provides her, and her self esteem is greatly tied up in her ability to function productively. Her ability to function vocationally is severely limited by the combination of her physical and psychological problems. She would have great difficulty interacting with supervisors and coworkers due to her distrust, fear of people, and wishes to remain isolated. Her ability to concentrate is somewhat impaired which would affect her ability to carry out job instructions. Her judgment is intact. She is motivated to work as a great deal of her self esteem is involved in what she can do. Her insight, especially in terms of self awareness is poor. She could benefit from psychotherapy (group or individual) but she manifests no felt need. She is capable of managing her own funds.

62

Dr. Boyd's report makes no reference to Dr. Altrocchi's diagnosis that Pieper's disability was organic and not psychiatric.

63

At the request of Administrative Law Judge Lynch, Pieper was evaluated on September 1, 1987 by psychiatrist William S. Herz, M.D., for review of her symptoms of depression. Pieper was seen for approximately one hour. The examination consisted of an interview with Pieper, observation of her physical condition, her rate of speech, and her response time to questions. Dr. Herz also reviewed the reports prepared by Dr. Boyd and Dr. Cochran.

64

Dr. Herz reviewed Dr. Altrocchi's reports and progress notes. Dr. Herz did not discuss Dr. Altrocchi's opinion that Pieper's disability was "totally organic and not psychiatric." Dr. Herz concluded that the level of pain is psychogenic because it "does appear to be out of proportion to her physical and anatomical findings."

65

Dr. Herz described his impressions concerning Pieper's depression symptoms as follows:

66

Mrs. Pieper-Gottsch appears to meet the criteria of recurrent depression. She consistently has a depressed or irritable mood, marked diminished interest in almost all previously pleasurable activities, recurrent insomnia, psychomotor retardation, fatigue and loss of energy, and diminished concentration in cognitive functioning. This depression may have originally begun in reaction to the losses she experienced due to her chronic pain. But at the present time the depression is too pervasive to be considered solely due to her problems with pain and appears to be an additional significant impairment in her functioning.

67

The level of pain she experiences does appear to be out of proportion to her physical and anatomical findings and, therefore, the diagnosis of psychogenic pain disorder (now referred to as Somatoform pain disorder) may be appropriate. However, the diagnosis is somewhat moot because the degree of physical pain she has experienced appears to have been significant enough on its own to seriously interfere with her concentration and attention span, let alone to permit her to do any physical activity. In the process of coping unsuccessfully with the degree of pain she experiences, she has become increasingly hopeless and bitter to the point that she is going to interview [sic] almost all new interventions to help her as hopeless and is likely to be highly resistive to further treatments. It is possible that part of the behavior that she shows is attributable to an underlying personality disorder, but it would [be] very difficult to make such a diagnosis in the face of the other severe illnesses, physical and emotional, that she experiences.

68

The report contains the following DSM III-R diagnoses:

69

Axis I: 296.33 Major Depression, Recurrent, Severe without psychotic features

307.80 Somatoform Pain Disorder

70

Psychiatrist Sarah E. Stewart, M.D., served as medical advisor to the ALJ. She was requested to review Pieper's medical record. Dr. Stewart testified that she was a Board Certified psychiatrist. She had been employed by the Lane County Mental Health Division for 15 years. She specializes in the treatment of major mental illnesses such as schizophrenia and manic depressiveness with medication. Prior to testifying, she reviewed all the exhibits and had heard all the prior testimony.

71

Dr. Stewart testified that Dr. Cochran, Dr. Boyd, and Dr. Herz had erroneously diagnosed Piper as suffering from psychogenic or somatoform pain disorder. These diagnoses are inapplicable where the clinical findings show that a person is suffering real pain caused by chronic sympathetic nervous system dysfunction. Dr. Stewart testified that Pieper's pain was organically caused, and "can't be labeled as psychological." Dr. Stewart also advised the ALJ that "[a] psychologist cannot make a diagnosis of psychologic pain disorder because he does not know what is bothering her."

72

Dr. Stewart also testified that while Dr. Cochran, Dr. Boyd, and Dr. Herz had diagnosed Pieper as suffering from major depression, each had failed to set forth the criteria that must be considered before arriving at that diagnosis. The symptoms listed by Dr. Herz such as decreased energy and psycho-motor retardation are all related to pain.

73

Dr. Stewart testified that the medical records show that Pieper's depression is related to her pain. It is her opinion, based on the medical records presented to the ALJ and reviewed by her, that Pieper does not suffer from any "psychological problem that would keep her from functioning well." On cross-examination, Dr. Stewart testified that the medical data contained in the records presented to the court were not sufficient to support a diagnosis of a disabling mental disorder.

74

The evidence summarized above shows that there was a conflict in the expert testimony concerning whether Pieper is afflicted with a disabling psychiatric disorder. The treating physician, Dr. Altrocchi, concluded that her medical condition is not the result of any psychiatric disorder. He also warned his patient and the court that psychiatrists and other practitioners might mistakenly conclude that she has a psychiatric disorder because chronic sympathetic nervous system dysfunction is poorly understood. Dr. Stewart advised the ALJ that the records prepared by Dr. Cochran, Dr. Boyd, and Dr. Herz contained insufficient clinical findings to support their diagnosis that Pieper suffers from a disabling major depression, and their diagnosis of psychochronic pain disorder is erroneous because of the undisputed evidence that her pain is caused solely by her physical impairment. Thus, contrary to Pieper's contention, substantial evidence supported the ALJ's finding that Pieper was not suffering from a medically determinable mental impairment. We note also that there is no evidence that Pieper has sought treatment at a pain clinic, as recommended by Dr. Cochran and that she takes no pain medication except aspirin.

75

Where, as here, the evidence is susceptible of more than one rational interpretation, we must uphold the ALJ's conclusion. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Substantial evidence supports the ALJ's conclusion that Pieper's impairment is organic, and not psychiatric.

76

B. Duty to Consider Combined Effects of Established Impairments

77

Pieper argues that the Secretary failed to consider her mental and physical impairments in combination in determining whether she can perform substantial gainful work. This argument finds no support in the record. To the contrary the ALJ's decision contains the following language:

78

The evidence does not establish the existence of any medically determinable mental impairment which, when considered in isolation or in combination with any medically determinable physical impairment would be of such severity as to prevent the claimant from performing substantial gainful activity for any period of 12 consecutive months.

79

This statement demonstrates that the Secretary fulfilled his duty to consider Pieper's impairments in combination. The record supports the Secretary's conclusion.

80

Because the Secretary's prior determinations that she was not entitled to disability benefits based on her physical impairments were final, Pieper had the burden of producing evidence to overcome the presumption that she is able to perform gainful employment. Hammock, 879 F.2d at 501. Pieper did not introduce evidence to overcome this presumption. She testified that her physical symptoms had not changed since 1985. As discussed above, substantial evidence supported the ALJ's conclusion that Pieper was not suffering from a disabling mental impairment.

81

C. Propriety of Rejection of Dr. Randall Gore's Opinion

82

Pieper claims that the ALJ "rejected the January 10, 1986 opinion of treating physician Dr. Gore that Ms. Pieper could do only sedentary work." Appellant's Brief at 24. Pieper has misperceived the ALJ's decision. The ALJ did not reject Dr. Gore's opinion. The ALJ concluded that "the claimant has the residual functional capacity to perform sedentary to light work activity which does not require use of the dominant right arm and hand." Order of Dismissal and Decision at 18.

D. Effect of Pain Evidence

83

In her opening brief, Pieper argues that the ALJ rejected her excess pain testimony without supporting his decision with specific findings. The record does not support this argument. During oral argument, Pieper's appellate counsel conceded that this is not an "excess pain" case. Pieper did not testify that she suffered from "excess pain." She testified that using her right arm caused most of her pain.

84

The evidence showed that there are jobs in the economy that do not require the use of the dominant hand. Dr. Altrocchi, the treating physician, testified that she could work if she did not use her right arm. There is no evidence in the record that Pieper would suffer from excess pain if she does not use her dominant hand.

85

E. Sufficiency of the Evidence that Pieper is Capable of Gainful Work

86

Pieper also claims that the Secretary failed to carry his burden of proving that she can perform substantial gainful work. We disagree.

87

The Secretary had the burden of showing that Pieper could engage in substantial gainful activity because Pieper demonstrated that she could not return to her former work with her functionless right arm. Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir.1985). To meet its burden the Secretary presented the testimony of Dr. Terry Lesh, Ph.D. See Magallanes v. Bowen, 881 F.2d 747, 756 (vocational expert may be used to establish claimant's ability to do other work).

88

Dr. Lesh testified that Pieper could do a number of jobs without using her dominant arm. On cross examination, Dr. Lesh conceded that Pieper could not do some of these jobs if the facts presented in counsel's hypothetical questions were accepted as true. Pieper argues that in light of the impeachment testimony, the Secretary has failed to carry his burden.

89

While it is true that Dr. Lesh testified that if the assumed facts were true, Pieper could not perform the duties of cafeteria cashier, returns clerk, diet clerk, or timekeeper. The witness' testimony that Pieper could perform the work of a mail clerk and inventory clerk was uncontradicted and unimpeached. Thus, the Secretary has carried his burden of demonstrating that Pieper can perform substantial gainful activity.

CONCLUSION

90

Substantial evidence supports the ALJ's determination that Pieper can perform substantial gainful employment, notwithstanding the physical impairment to her dominant arm. Although the evidence is conflicting, the ALJ's determination that she does not suffer from a medically determinable mental impairment is supported by substantial evidence.

91

The judgment is AFFIRMED.

JAMES R. BROWNING, Circuit Judge, dissenting:

92

I respectfully dissent.

93

The present claim is the first in which Pieper alleged mental impairment in addition to her organic pain complaints. Drs. Cochran, Boyd and Herz, two of whom were selected by the Secretary, examined Pieper and independently concluded she suffers from major depression which, in combination with her organic pain complaints, prevents her from working. This new evidence of mental impairment is sufficient to overcome the presumption arising from the prior adjudication of non-disability, see Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir.1988) (res judicata inappropriate where claimant presented new evidence of mental impairment). The ALJ was required to assess anew whether Pieper's impairments, either singly or in combination, are disabling within the meaning of the Social Security Act.

94

The ALJ rejected the unanimous opinion of the three examining mental health professionals and relied instead on the testimony of Dr. Stewart, a non-examining psychiatrist appointed by the ALJ to review the record and advise the ALJ. Dr. Stewart, however, did not reject the diagnostic opinions of Pieper's three mental health professionals, or state that in her opinion Pieper did not suffer from major depression. She said only that the bare paper record was insufficient to permit her to confirm the diagnosis of the three examining physicians. Dr. Stewart said she would have to examine Pieper herself before she could form a personal opinion as to whether Pieper suffered from depression.

95

Dr. Stewart did disagree with Drs. Cochran, Boyd and Herz that Pieper suffers psychogenic pain disorder. Dr. Altrocchi was also of the view Pieper's pain was purely organic in origin. Thus, the record may support rejection of the diagnosis of psychogenic pain disorder. The disputed etiology of Pieper's pain complaints, however, casts no doubt on the uncontradicted psychiatric diagnoses of major depression.1

96

In sum the ALJ failed to give sufficient weight to the uncontroverted diagnoses of Drs. Cochran, Boyd and Herz, or to their conclusion Pieper was unable to work. Though the records may not have provided a sufficient basis for Dr. Stewart to make an independent diagnosis, the opinions cannot for that reason alone be rejected. See Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir.1989) ("ALJ must give sufficient weight to the subjective aspects of a doctor's opinion"). An expert's opinion of disability, even if stated as a subjective conclusion, "is entitled to more than passing consideration." Rhodes v. Schweiker, 660 F.2d 722, 724 (9th Cir.1981).

97

Moreover, the examining doctors did much more than simply state conclusions of disability. All three doctors recognized the impact of Pieper's constant pain on her psychological state. Dr. Boyd noted Pieper's "symptoms of poor appetite, insomnia, fatigue, and loss of interest [and] pleasure in usual activities." Dr. Boyd attributed Pieper's depression in part to the loss she feels from her reduced ability to function. Dr. Herz supported his opinion with findings that Pieper "has a depressed or irritable mood, marked by insomnia, psychomotor retardation, fatigue and loss of energy, and diminished concentration in cognitive functioning." Dr. Herz suggested that Pieper's depression may have begun in reaction to the chronic pain, but had since become "an additional significant impairment in her functioning."

98

I would remand to the district court with instructions to remand to the Secretary for proper consideration of Pieper's diagnosed mental impairment.

*

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 Cir.R. 36-3

1

Nor can Dr. Altrocchi's notation, contained in his April 2, 1986 report, that Pieper's "[m]ental exam was normal" be construed to contradict the diagnoses of major depression. Dr. Altrocchi is a neurologist and was treating Pieper for her pain. His goal in assessing Pieper's mental state was to determine whether the pain was psychogenic or organic in origin. Dr. Altrocchi's neurological examination could not reasonably be expected to discover Pieper's clinical depression. Moreover, in his November 7, 1986 report, Dr. Altrocchi concurred with the mental health professionals that Pieper was "certainly depressed."