909 F2d 1489 Ting v. R Bowen Hhs &

909 F.2d 1489

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Songhan TING, Plaintiff-Appellant,
Otis R. BOWEN, Secretary, HHS, Secretary of Health & Human
Services, Department of Health & Human Services,

No. 89-35709.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1990.
Decided July 30, 1990.

Before HUG, NELSON and BRUNETTI, Circuit Judges.




Songhan Ting appeals the district court's affirmance of the Secretary of Health and Human Service's (the "Secretary") denial of Ting's application for Title XVI Supplemental Security Income ("SSI") Benefits. We reverse and remand to the Secretary for further findings.


Ting filed his first application for SSI disability benefits in 1985 which was denied. Ting did not appeal this denial. Ting filed a second application for benefits in 1986, which was also denied. Ting again did not appeal. He then filed the SSI application under review in this case in August of 1986, claiming disability because of his back problems.1


His application was denied initially, upon reconsideration and by an Administrative Law Judge ("ALJ") after a hearing. The ALJ found Ting capable of performing his past work and therefore not disabled for purposes of SSI benefits. The ALJ also denied Ting's request to reopen his prior applications.2 The ALJ's decision became the final decision of the Secretary when the Appeals Council denied review. The district court affirmed the ALJ's denial of benefits, and Ting appeals.


The ALJ in this case denied SSI benefits to Ting because he found that, while Ting did have serious impairments as a result of his back injury, Ting's impairment did not prevent him from performing his previous work as a janitor. Ting argues that, in reaching this conclusion, the ALJ improperly discounted the opinions of Ting's treating physicians who stated that Ting could only do light or sedentary work.


A previous denial of benefits creates a presumption that the claimant continues to be able to work. Fair v. Bowen, 885 F.2d 597, 600 (9th Cir.1989). This presumption is overcome if a claimant establishes that his circumstances have changed because his condition has worsened since the earlier decision. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985). Ting claims his back injury has worsened since his last application in 1986 as shown by new x-rays taken in 1987. [CR p. 266] He relies on the diagnosis of degenerative joint disease made by his doctors to show changed circumstances.


The following medical evidence was in the record reviewed by the ALJ. Dr. McCollum, an independent medical examiner, examined Ting in December of 1984 and June of 1985. He concluded that Ting suffered from a back strain, which resulted in a category I rating for back impairment under the Washington worker's compensation schedules. He felt Ting could return to his past work. [CR p. 177-78, 218] In 1985, Ting's treating physician, Dr. Duong, concurred in the independent examiner's conclusions. [CR p. 223] The vocational counselor cited to this medical evidence in concluding that Ting's "post-injury physical abilities are the same as his pre-injury physical abilities with regard to his employment potential." [Id. ]


However, Ting also presented treating doctors' statements that he could perform only light or sedentary work. Dr. Duong made a report in 1986, revising his 1985 opinion. In this new report, he termed Ting capable of only light work and said Ting's condition had resulted in general unemployability. [CR p. 227] Ting also saw Drs. Ngo and Nguyen, who both submitted reports in which they concluded that Ting could perform only light or sedentary work. [CR p. 252, 277] Dr. Ngo based this conclusion on his diagnosis of Ting as suffering from "degenerative joint disease of the lumbar spine." [CR p. 245] Dr. Nguyen made a similar diagnosis of degenerative arthritis. [CR p. 275]


Ting claims that the ALJ improperly rejected his treating physician's testimony. The regulations state that the treating physician's opinion on the ultimate issue of disability is not binding. 20 CFR Sec. 416.927 (1988). However, a treating physician's testimony is entitled to special weight in this Circuit. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir.1988). If a treating physician's testimony is contested, the ALJ must set forth specific, legitimate reasons based on evidence in the record for disregarding the treating physician's testimony. Id. at 421. This decision must be based on substantial evidence. Id. "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting evidence, stating his interpretation thereof and making findings." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986). If the evidence supports more than one rational interpretation, we will uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1985).


The ALJ rejected Dr. Duong's changed opinion that Ting was unemployable and concluded that Ting could perform his previous work. The ALJ stated:


The claimant's treating physician has termed the claimant as capable of only sedentary or light work (Exhibits 39-40, 42, 5051, 53). Yet, that physician noted the claimant's slow improvement with medications, heat treatment, and physical therapy (Exhibit 44). The minimal objective findings which that physician articulated regarding his examination of the claimant for his back conditions did not correlate with his statements of the claimant's residual functional capacity. He has termed the claimant's condition as resulting in his general unemployability. However, in accordance with section 416.927, this opinion is not determinative of the issue of disability.


[ER p. 18] (Emphasis added.)


As outlined above, the ALJ did give specific, legitimate reasons for rejecting Dr. Duong's changed testimony. However, the ALJ did not give specific reasons for rejecting the other doctors' opinions. The ALJ did not address the reports submitted by Ting's other treating physicians, Dr. Ngo and Dr. Nguyen. The ALJ's failure to make findings setting forth his reasons for disregarding Drs. Ngo and Nguyen's opinions was reversible error. See Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985).


Thus, we remand the case to the Secretary for proper consideration of the evidence presented by Drs. Nguyen and Ngo. Embrey, 849 F.2d at 422, n. 3.3




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


In his application, Ting also alleged disability based on neck pain. The ALJ concluded that his neck injury did not meet the durational requirements of the Regulations, 20 CFR 416.909. Ting does not contest this determination. Further, res judicata bars Ting from arguing that he was disabled prior to April 15, 1986, the date his second application was denied. Green v. Heckler, 803 F.2d 528, 530 (9th Cir.1986) (res judicata precludes a claimant who applies for SSI benefits after an earlier denial from arguing that he was disabled during the period covered by the earlier application). While res judicata is not rigidly applied, if manifest injustice would result, Krumpleman v. Heckler, 767 F.2d at 586, 588 (9th Cir.1985) cert. denied, 475 U.S. 1025 (1986), Ting has not shown that any manifest injustice would result from the application of res judicata here


An initial denial of benefits becomes final if a claimant does not appeal to the next level within 60 days. 20 C.F.R. Secs. 416.1409, 416.1433, 416.1468 (1988). The Secretary has the authority to reopen a final decision within one year for any reason or within two years if good cause is shown. 20 C.F.R. Sec. 416.1488

The ALJ denied Ting's motion to reopen his prior applications because he found no good cause to do so. Federal courts have no jurisdiction to review the Secretary's refusal to reopen a claim for disability benefits. Krumpleman v. Heckler, 767 F.2d 586, 588 (9th Cir.1985), cert. denied, 475 U.S. 1025 (1986). Therefore, we do not review the Secretary's refusal to reopen.


Ting also argues that the ALJ erred in finding his excess pain testimony not credible. Because we are remanding the case for additional findings regarding Ting's alleged disability, we do not address this argument