Opinion
No. 04-17414.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 3, 2007.
Brewer Mitchell, LLP, Sacramento, CA, for Plaintiff-Appellant.
Michael A. Cabotaje, Social Security Administration office of the General Counsel, San Francisco, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of California, Gregory G. Hollows, Magistrate Judge, Presiding. D.C. No. CV-03-01578-GGH.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Lewis argues that the administrative law judge (ALJ) "committed six principal errors in reaching her flawed determination" that Lewis was not disabled.
We have addressed Lewis's argument relating to the ALJ's failure to include his bursitis at Step 2 of the analysis in a published disposition filed with this disposition.
Lewis argues that the ALJ erred in failing to consider all of his impairments at Step 2 of her analysis. Since there is substantial evidence in the medical records that Lewis's "status post laminectomy" encompassed his weak ankle doriflexors, the ALJ's decision not to list it as a separate impairment is properly supported. Similarly, there is substantial evidence in the medical record reflecting that Lewis's gastroparesis was related to his diabetes. The discussion of "diabetes and abdominal pain" in the ALJ's decision also indicates that the ALJ understood the gastroparesis to be a part of Lewis's diabetes. Similarly, even assuming that Lewis's diabetic neuropathy had any effect on his ability to work, there is substantial evidence that this impairment was diabetes-related. Thus, the ALJ was not required to list the diabetic neuropathy in addition to diabetes mellitus. Finally, although the medical records confirm that Lewis had hypertension, Lewis has failed to allege what impact, if any, his high blood pressure had on his ability to work. In light of this, the ALJ was not required to consider separately the hypertension under Step 2.
Lewis contends that the ALJ misunderstood the scope and impact of Lewis's diabetes. Lewis argues that his condition was more than "merely `Diabetes Mellitus.'" However, there is no indication (and Lewis points us to no support in the record) that "diabetes mellitus" is less "pernicious and pervasive" than the type of diabetes that Lewis had.
Next, Lewis argues that the ALJ improperly failed to credit his statements regarding the extent and nature of his pain. "If the claimant submits objective medical findings establishing a medical impairment that would normally produce a certain amount of pain, but testifies that [he] experiences pain at a higher level . . . the Secretary is free to decide to disbelieve that testimony, but must make specific findings justifying that decision." Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (internal parenthetical and citations omitted).
In finding Lewis not credible, the ALJ cited the following: that Dr. Weinreb testified that Lewis had engaged "in drugseeking behavior"; that his x-rays reflected "only minimal degenerative changes" in his knees; that Dr. Madireddi observed that Lewis had "normal motor strength"; and that this last observation was inconsistent with Lewis's statements that he spent most of his time lying down watching television. She also pointed out that Lewis "was observed to be laughing and talking while using the telephone" while requesting Demerol for pancreatic symptoms. The medical evaluations relied on by the ALJ and the evidence of drugseeking behavior were sufficient evidence on which the ALJ could find that Lewis was not credible.
Lewis also contends that the ALJ improperly discredited the opinions of Dr. Ferrari and Dr. Rose. The ALJ decision cites specific and legitimate reasons for discounting each opinion: that Dr. Rose "rarely treated the claimant for musculo-skeletal complaints," and that Dr. Ferrari "did not cite physical findings in support of the restrictions that he placed on [Lewis]." She also stated that Dr. Rose "had not treated the claimant since November 2000." Further, the ALJ's findings were supported by substantial evidence in the record, including Dr. Weinreb's testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (the contrary opinion of a non-examining medical expert "may constitute substantial evidence when it is consistent with other independent evidence in the record").
Lewis next argues that the ALJ erred because her hypothetical question did not include all of his limitations. "Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant." Embrey v. Bmven, 849 F.2d 418, 422 (9th Cir. 1988) (emphasis omitted). "Unless the record indicates that the ALJ had specific and legitimate reasons for disbelieving a claimant's testimony as to subjective limitations such as pain, those limitations should be included in the hypothetical in order for the vocational expert's testimony to have any evidentiary value." Id. at 423. As discussed above, the ALJ properly found that Lewis was not credible after stating specific and legitimate reasons for disbelieving him. There was also substantial evidence in the record supporting the ALJ's adverse credibility finding. Therefore, the ALJ did not err in limiting the symptoms presented in her hypothetical.
Lewis also contends that because the ALJ improperly found his testimony not credible, "she also failed to correctly determine the work interruptions" flowing from these symptoms. As discussed above, the ALJ properly found that Lewis was not credible. In addition, the finding that Lewis could perform sedentary, unskilled, work was adequately supported by the vocational expert, who testified that a hypothetical person having Lewis's impairments could perform sedentary, unskilled work. Thus, there was no error here either.
Finally, Lewis argues that the ALJ failed to develop the record fully with respect to his psychiatric problems. This argument is waived, because Lewis failed to raise it before the district court.