James L. BATES, Plaintiff-Appellant, v. Louis J. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee ( 1990 )

DAVID R. THOMPSON, Circuit Judge:

James L. Bates appeals the district court’s judgment affirming the denial by the Secretary of Health and Human Services of his application for disability benefits. Bates argues that (1) the administrative law judge (“ALJ”) failed to make findings sufficient to discredit his subjective pain testimony, (2) the ALJ erred in not giving weight to a state agency determination that he is disabled, (3) the ALJ improperly used the Medical-Vocational Guidelines (“grids”) to find him not disabled, and (4) the Appeals Council improperly disregarded the opinion of an examining psychiatrist. We have jurisdiction over Bates’ timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

FACTS AND PROCEEDINGS

Bates was born in 1952. He attended school through the tenth grade and later obtained a GED, indicating the equivalent of a full high school education. He has worked as a carpenter’s helper, a welder, and for a brief period as a security guard.

Bates has not worked since October 1983 when he quit his job as a welder at a stove factory due to back pain. His back was injured in 1978 in a car accident and rein-jured in October 1983 while Bates was picking up a stove at work. Since he left his job at the stove factory Bates has been receiving time-loss benefits from the State of Washington's Department of Labor and Industries for being “temporarily totally disabled.”

In addition to his back pain, Bates reports he suffers from other physical and nonphysical limitations. In 1982 he received surgical treatment to his wrists for injuries suffered in a knife attack and in 1984 he fell from a horse and fractured his skull. Bates has abused alcohol and drugs in the past. In recent years he has suffered from emotional problems, including depression and periods of anger, for which he has been treated by a psychologist.

Bates applied for disability insurance benefits in November 1984. He alleged that he became disabled on October 20, 1983 as a result of injuries to his back, head and hands, and that he suffered from chronic back pain, alcohol and drug abuse, and emotional problems. Bates did not contend that his physical problems met or equaled a listing, but rather that the combination of his mental and physical impairments render him disabled. Bates’ Social Security earnings record shows that he met the disability insurance status requirements through December 31, 1984.

Upon denial of his application, Bates requested a hearing. An administrative hearing was held before an AU on October 20, 1986. The AU determined that Bates’ eligibility for disability benefits was restricted to the period between October 20, 1983, the date Bates said he became unable to work, and December 31, 1984, the last date that Bates met the disability insurance status requirements of the Social Security Act. The AU found that Bates was incapable of performing his last work but that he retained the ability to perform the full range of light work. The AU also found that Bates’ testimony of chronic disabling back pain was not credible and that his nonexertional limitations would cause no significant vocational limitations. Applying the grids the AU determined that Bates was not disabled. Bates requested that the Appeals Council review the AU’s decision and he submitted new evidence consisting of a report detailing the results of a psychological evaluation conducted in March 1987. The Appeals Council considered this report but declined to review the AU’s decision which therefore became the final decision of the Secretary.

Bates then sought judicial review in the district court. The district court referred the case to a magistrate who issued a report recommending that the case be remanded to the Secretary because the AU did not make findings sufficient to discredit Bates’ subjective pain testimony. The district court, after reviewing the evidence, rejected this recommendation and issued a judgment affirming the decision of the Secretary denying Bates disability benefits. Bates appeals.

STANDARD OF REVIEW

We review the judgment of the district court de novo. Adams v. Bowen, 872 F.2d 926, 927 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 151, 107 L.Ed.2d 109 (1989). The Secretary’s denial of benefits will “ ‘be disturbed only if it is not supported by substantial evidence or if it is based on legal error.’ ” Brawner v. Secretary of Health and Human Services, 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. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but “less than a preponderance.” Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988) (quoting 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 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). This court must review the record as a whole and consider adverse as well as supporting evidence. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989).

ANALYSIS

A. Bates’ Subjective Pain Testimony

We first consider Bates’ argument that the AU improperly rejected his subjective pain testimony. Bates argues that the AU did not make the required specific findings to justify his decision to discredit Bates’ testimony of disabling chronic back pain.

The Secretary is not required to believe a claimant's pain testimony, and the Secretary may decide to disregard such testimony entirely whenever the claimant fails to submit objective medical findings that could reasonably be expected to produce the claimed pain. Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985); 20 C.F.R. § 404.1529 (1988); Social Security Ruling 88-13. However, "the Secretary must make specific findings justifying that decision." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.1989) (quoting Green v. Heckler, 803 F.2d 528, 532 (9th Cir.1986)).

At the hearing Bates testified that his chronic back pain renders him incapable of working. He said that as a result of this back pain he is unable to pick up more than ten pounds or carry anything weighing five pounds. He also said that he is able to sit comfortably for only about fifteen minutes at a time, that he cannot walk long distances without increasing his back pain, and that he is unable to drive without stopping frequently to walk around. The AU rejected this testimony as not credible.

Relevant portions of the AU's decision read as follows:

[R]ecent records from the claimant's treating physician as well as an earlier assessment from his chiropractor, indicate that [Bates] retains the functional capacity to perform a light level of work-related activities; that is, he is able to lift and carry a maximum of 10 pounds frequently, or up to 20 pounds occasionally. The claimant's testimony that he is only able to lift and carry a maximum of 5 pounds is not supported by the medical evidence, and it is not accepted by the Administrative Law Judge.

FINDINGS

The claimant's testimony concerning his exertional limitations was not supported by the reports of his treating physician, and was not fully credible.

The AU made a specific finding discrediting Bates' subjective pain testimony.¹ The finding is based on reports from Bates' own doctors that Bates is able to perform lighl~-level work activities. The ALT in his decision referred to these reports in reaching the conclusion that Bates' subjective pain testimony was not credible. In a vocational retraining evaluation it was noted that Dr. Leone, Bates' treating chiropractor, reported that he considered Bates able to engage in sedentary to light work activities, with the ability to stand and walk up to four hours during an eight-hour work day, and lift and carry ten to twenty pounds occasionally. Bates' treating physician, Dr. Nacht, an orthopedic specialist, in a report to a rehabilitation agency stated that he considered Bates able to lift up to twenty pounds, stand for one hour, and walk for one to two hours at a time.

We have stated that an ALT may not discredit subjective pain testimony solely on the ground that it is not fully corroborated by objective medical findings. Hammock v. Bowen, 879 F.2d at 502; Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir.1988) (Varney I); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986).

In Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 1279 (9th Cir.1987), we held that an AU's findings discounting a claimant's subjective pain testimony are not sufficient where the ALT makes only a general finding and does not state which pain testimony is not credible, nor what medical evidence suggests that the claimant's claim of pain is not credible. See also Varney, 846 F.2d at 584. The ALT's findings in the present case do not suffer from such flaws. The ALT referred specifically to portions of Bates' testimony and discussed the opinions of Bates' treating chiropractor and physician which indicate that Bates' testimony is not credible. The AU discredited Bates' testimony not because it was not fully corroborated by medical evidence but rather because the medical evidence-the opinions of his own doctors-affirmatively contradicts Bates' allegations of disabling back pain.

We afford greater weight to a treating physician's opinion because "he is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987). Moreover, credibility determinations are the province of the ALT. Russell v. Bowen, 856 F.2d 81, 83 (9th Cir.1988). Bates' subjective pain testimony was impeached by the opinions of his own doctors. The ALT referred to these reports in his decision and he made a specific finding concluding that Bates' testimony was not credible. We conclude that the ALT made the requisite specific findings and that these findings are supported by substantial evidence. The ALT was justified in rejecting Bates' subjective pain testimony.

B. State Agency Determination

We turn next to Bates' argument that the AU erred in failing to give weight to the determination by the State of Washington's Department of Labor and Industries that he is "temporarily totally disabled."

Social Security regulations state that a determination by another governmental agency that a person is disabled is not binding on the Secretary. 20 C.F.R. § 404.1504 (1988). This is because the Secretary must make a disability determination based on Social Security law and not on the rules of other agencies. Id. A state finding of disability may be introduced into evidence before the Secretary, but the Secretary may attribute as much or as little weight to it as the Secretary deems appropriate. Wilson v. Heckler, 761 F.2d 1383, 1385 (9th Cir.1985). This is so even if the claimant has been found eligible to receive state disability benefits under a standard more rigorous than those used to determine eligibility for SSI and Title H disability benefits. Id.

Both the Social Security regulations and our decisions establish that the Secretary is not bound by a state agency determination of disability. The State of Washington's determination that Bates is "temporarily totally disabled" is not binding on the Secretary. Bates' argument that the Secretary erred in failing to give weight to this determination is thus without merit.

C. AU's Use of the Grids

We next consider Bates' contention that the AU's use of the grids to deny benefits was error because he suffers from both exertional and nonexertional limitations.

The use of the grids to find a claimant not disabled can be appropriate when both exertional and nonexertional limitations are alleged. See 20 (C.F.R. pt. 404, subpt. P., App. 2) § 200.00(e) (1988). In such a case the grids may be used to find a claimant not disabled when the ALl finds that the claimant's nonexertional limitations do not significantly affect his exer-tional capabilities. Razey v. Heckler, 785 F.2d 1426, 1430 (9th Cir.1986), modified, 794 F.2d 1348 (1986). On the other hand, where a claimant's nonexertional limitations do significantly limit his range of work, then use of the grids to find him not disabled is inappropriate. Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir.1988).

In his decision the ALT made findings that Bates retained the capacity to do light work and that his "nonexertional limitations would cause no significant vocational limitations." These findings were supported by substantial evidence including reports from Bates' treating physician, chiropractor and psychologist. Use of the grids to make a finding of not disabled was appropriate under these circumstances.

D. Rejection of Psychiatrist's Opinion

We finally consider Bates' argument that the Appeals Council improperly rejected the opinion of a consulting psychiatrist, Dr. Killoran.

Two months after the ALJ issued his decision and while the matter was pending before the Appeals Council Bates submitted new evidence consisting of a report by Dr. Killoran detailing the results of a psychological evaluation of Bates. The psychological evaluation was based primarily on a mental status examination of Bates conducted by Dr. Killoran in March 1987 although the report also summarized and considered Bates’ psychological and medical history. Dr. Killoran’s diagnosis of Bates included chronic paranoid schizophrenia and amnestic syndrome secondary to alcohol abuse/head injury/polysubstance abuse. Dr. Killoran concluded that Bates is “unemployable, severely debilitated and has a poor prognosis.” Bates argues that Dr. Killoran’s report proves that he is disabled.

Social Security regulations provide that where new and material evidence is submitted to the Appeals Council with the request for review, the entire record will be evaluated and review of the ALJ’s decision will be granted where the Appeals Council finds that the AU’s action, findings, or conclusion is contrary to the weight of the evidence currently of record. 20 C.F.R. § 404.970. The Appeals Council shall consider any new and material evidence only where it relates to the period on or before the date of the ALJ’s decision. Id.

The Appeals Council considered Dr. Kil-loran’s report but concluded that it did not provide a basis for review of the ALJ’s decision. The Appeals Council explained that this was because the diagnoses in the report were based primarily on the mental status examination of Bates conducted in March 1987 and that they were not consistent with the medical evidence relative to the period ending on December 31, 1984, the last date Bates met the disability insured status requirements of the Social Security Act.

Bates contacted Dr. Killoran in March 1987, months after the ALJ’s adverse decision and years after his insured status expired. Dr. Killoran’s summation that “the net result of the present clinical picture is that Mr. Bates is severely disabled from a psychological point of view and has a very poor prognosis,” (emphasis added) reinforces the conclusion that the report was not relevant to the period in question. Moreover, the opinion of Dr. Killoran, a consulting psychiatrist who was first contacted months after the ALJ’s adverse decision, is not consistent with medical evidence, including psychological evaluations and treatment records, pertaining to the relevant time period. We conclude that the Appeals Council did not err in rejecting Dr. Killo-ran’s opinion and denying the request for review.

CONCLUSION

The judgment of the district court affirming the Secretary’s denial of Bates’ application for disability benefits is AFFIRMED.

1 . Bates' alleged exertional limitations are pain-related. His hearing testimony indicates that it is not physical inability, but rather his back pain, which prevents him from working:

Q. {A]re you able to lift 20 ibs, occasionally?

A. I guess-yeah I could pick it up. But, you now[sic], it's hurting me. I could feel it in the lower part of my back.

Q. Could you pick it up several times?

A. Sure. I guess I probably could. My life depended on it, I could probably pick it right up.

Transcript of Hearing, p. 49.