OpenJurist

917 F2d 566 Snip v. J Sullivan

917 F.2d 566

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Calvin J. SNIP, Plaintiff-Appellant,
v.
Louis J. SULLIVAN, M.D.,* Secretary of Health
and Human Services, Defendant-Appellee.

No. 88-4274.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 1990.
Decided Oct. 26, 1990.

Before KOELSCH, JAMES R. BROWNING and BEEZER, Circuit Judges.

1

MEMORANDUM**

2

Calvin J. Snip appeals from the judgment of the district court affirming the denial of his application for social security disability benefits by the Secretary of Health and Human Services (the Secretary). We reverse and remand for further proceedings.

I.

3

At the time of the administrative hearing, March 3, 1987, Snip was 53 years old. He completed high school and approximately one year of college. Since 1959, his only work experience has been as a drywall contractor.

4

In December 1984, Snip stopped contracting due to pain in his hip, back and legs. The causes of Snip's pain went undiagnosed until December 17, 1985, when his doctor noticed a lesion on the joint of his left hip. On May 12, 1986, Snip's left hip joint was replaced.

5

On June 17, 1986, Snip filed an application for Social Security disability insurance benefits claiming disability since December 15, 1984. His application was denied initially and again on reconsideration. Snip filed a request for a hearing on November 10, 1986. The Administrative Law Judge (ALJ) held a hearing on March 3, 1987, and on April 27, 1987, issued a decision denying Snip's application. The ALJ found Snip unable to resume his previous occupation. However, the ALJ determined Snip was capable of performing light work. In view of Snip's age, education and previous experience doing skilled work that was not transferable to light jobs, the ALJ applied rule 202.14 of the Medical-Vocational Guidelines, 20 C.F.R. Sec. 404, Subpt.P, App. 2 (1989), directing a conclusion Snip was not disabled.

II.

6

The Secretary's determination is to be affirmed if supported by substantial evidence. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir.1988). Substantial evidence is evidence that a reasonable person might accept as adequate to support a conclusion. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir.1986). The Secretary is entitled to make inferences that logically flow from the evidence. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.1984).

7

To qualify for disability benefits, Snip bore the initial burden of showing he was disabled. He met this burden by showing he was unable to perform his previous occupation. Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir.1990). The burden then shifted to the Secretary to show Snip, considering his age, education and work experience, could perform other substantial gainful activity. Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir.1989). On appeal, Snip argues the evidence does not support the ALJ's finding he is capable of light work and therefore not disabled.

III.

8

Light work demands the ability to stand, walk and carry up to ten pounds for at least six hours in an eight hour work day. Social Security Ruling 83-10; See also Gallant, 753 F.2d at 1454 n. 1 (up to two-thirds of the work day).

9

To support his finding Snip is capable of light work, the ALJ relied in part on Snip's daily activities:

10

The claimant does all of his own housework, shopping, cooking and laundry and is able to socialize with friends and play pool. The claimant's own testimony at the hearing indicated that he tries to walk for 45 minutes at a stretch at the local market.

11

Further, in rejecting Snip's pain testimony, the ALJ stated:

12

The claimant's daily activities are essentially unrestricted and he does generally what he pleases as long as he avoids strenuous physical exertion. Certainly, for the claimant can handle all of his household chores and socialize and concentrate on reading to the extent he indicated at the hearing, he can perform light work.

13

The evidence of Snip's daily activities does not support the ALJ's finding Snip is capable of light work. One cannot logically infer from that evidence that Snip is able to stand, walk and carry up to ten pounds for six hours each work day. On the contrary, Snip's testimony is uncontradicted that he spends six or seven hours each day sitting in a recliner, reading. He spends only a brief period each day doing household chores. When he goes to the market he uses the shopping cart for support. He played pool only a few times in the year preceding the hearing. He testified he thought he could do minor maintenance on his car if he had to, but because of the pain had not done any for the last couple of years.

14

Because the ALJ relied on findings that are not supported in the record, we reverse the judgment of the district court and remand with instructions to remand to the Secretary for further proceedings consistent with our decision. The Secretary may, at his discretion, reopen the record to consider additional evidence.

15

REVERSED and REMANDED.

BEEZER, Circuit Judge, dissenting:

16

I respectfully dissent. Bates v. Sullivan, 894 F.2d 1059, 1072 (9th Cir.1990), says that "an ALJ may disregard a claimant's subjective pain testimony unless it is accompanied by evidence of a medical condition that could reasonably be expected to produce that pain." Because no objective medical evidence supported Snip's pain allegations, the ALJ was free to disregard Snip's statements concerning pain-related limitations on his daily activities. The ALJ's decision denying benefits was supported by the lack of pain manifestation at the hearing, by Snip's failure to take pain medication, and by the lack of objective medical support for Snip's pain testimony. In fact, the record includes two medical reports, both of which explicitly conclude that Snip was capable of performing light work. I would affirm.

*

Louis J. Sullivan, M.D., is substituted for his predecessor, Otis R. Bowen, M.D., as Secretary of Health and Human Services. Fed.R.App.P. 43(c)(1)

**

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