Macri v. Chater

Opinion by Judge SNEED; Dissent by Judge NORRIS. ORDER The Memorandum disposition filed July 9, 1996, is redesignated as an authored Opinion by Judge Sneed. OPINION SNEED, Circuit Judge: Giuseppe Macri appeals the district court’s order and judgment affirming the Commis — 543 — sioner’s decision to deny him disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 401. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. STANDARD OF REVIEW We review de novo the district court’s order upholding the Commissioner’s denial of benefits. Floten v. Secretary of Health & Human Serv., 44 F.3d 1453, 1457 (9th Cir.1995). We must affirm the denial of disability benefits if it is supported by substantial evidence and the Commissioner applied the correct legal standards. Id. “Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. We may not substitute our judgment for that of the Commissioner. Id. II. MAORI’S ARGUMENTS Macri makes numerous arguments in support of his contention that the district court erred in affirming the Commissioner’s denial of disability insurance benefits. We shall address each such argument. A. Residual Functional Capacity Macri contends that no substantial evidence exists to support the Commissioner’s decision that Macri retained the residual functional capacity (RFC) to perform a wide range of light work prior to December 31, 1986, the expiration of his disability insured status. We disagree.1 The claimant has the burden of proving that he became disabled prior to the expiration of his disability insured status. Id. at 1463. The claimant must prove not only the existence of an impairment but that the impairment prevents him from performing his past work. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir.1993). Here, in determining Maori’s RFC, the administrative law judge (ALJ) relied upon specific observations made prior to December 31, 1986, by Maori’s treating physician, Dr. Donald Prolo, a Board-certified neurosurgeon, and an examining physician, Dr. S. Malvern Dorinson. These observations support the ALJ’s conclusion that Maori’s back impairment did not prevent him from performing a wide range of light work prior to December 31, 1986. See 20 C.F.R. § 404.1567(b) (1995) (lifting no more than 20 pounds at a time and frequent lifting of objects weighing up to 10 pounds). Dr. Prolo performed Maori’s 1982 back surgery. Although Macri complained of pain in his back, knees, legs, neck, arms, and hands through March 1986, Dr. Prolo reported that he observed no significant abnormalities and that Macri had a solid fusion at the L4-5 disc. In June 1984, Dr. Prolo reported that Macri was disabled according to Category “D” of the California Guidelines for Work Capacity. In October 1986, Dr. Prolo reported that despite Maori’s complaints of pain, motor examination revealed strength everywhere in his lower and upper limbs to be intact. In November 1985, Dr. Dorinson, a Board-certified specialist in medicine and rehabilitation, reported that Macri was in Category “D” of the California Guidelines for Work Capacity.2 Category “D” represents a “Disability Precluding Heavy Lifting, Repeated Bending and Stooping” and “contemplates the individual has lost approximately half of his preinjury capacity for lifting, bending and stooping.” Glass v. Workers’ Compensation Appeals Bd., 105 Cal.App.3d 297, 164 Cal.Rptr. 312, 315 n. 1 (1980). Although the California — 544 — Guidelines for Work Capacity are not conclusive in a social security ease, Desrosiers v. Secretary of Health & Human Serv., 846 F.2d 573, 576 (9th Cir.1988), the ALJ is entitled to draw inferences “logically flowing from the evidence,” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Here, Macri had been lifting boxes up to 40 pounds prior to his injury, frequently lifting boxes up to 25 pounds, and had been bending constantly in his job as a tile setter. Under Category D, Macri could lift up to 20 pounds, lift 10 pounds frequently, and bend half the time. Accordingly, the weight of contemporaneous medical evidence supports the ALJ’s decision that Macri was capable of performing light work. See 20 C.F.R. § 404.1567(b).3 B.Treating Physician Macri contends that the Commissioner erred by rejecting Dr. John W. Hanbery’s opinion because the ALJ rejected Dr. Han-bery’s reports without stating specific reasons and the Appeals Council failed to remand the matter to the ALJ based upon Dr. Hanbery’s 1993 reports. We disagree. The ALJ did discuss Dr. Hanbery’s reports, which began in December 1987, including his opinion that Macri was precluded from performing heavy work and his recommendation that Macri find work in which he could change positions as needed. The ALJ also discussed Dr. Hanbery’s report in March 1990 that Macri was limited to light work. Those opinions are consistent with the ALJ’s determination that Macri was capable of performing “a wide range of light work.” Macri also contends that the Appeals Council erred by deciding that Dr. Hanbery’s reports submitted after the ALJ issued his decision did not warrant a remand to the ALJ. We disagree because Dr. Hanbery’s 1993 reports were issued after the Commissioner’s decision, so they are less persuasive. See Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir.1989). Thus, the Appeals Council did not err when it concluded that the ALJ’s decision was not contradicted by the weight of the evidence. See Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir.1990), overruled on other grounds, Bunnell v. Sullivan, 947 F.2d 341, 342 (9th Cir.1991)(en banc). C. Claimant’s Pain Testimony Macri contends that the Commissioner failed to substantiate the rejection of his subjective pain complaints. We disagree. ‘Where objective medical findings establish the existence of medical impairment, but a claimant testifies that [he] experiences pain at a higher level, the [Commissioner] is free to disbelieve that testimony. The [Commissioner] must, however, make a specific and justifiable finding that the claimant’s testimony is not credible.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.1989). Here, the ALJ discounted Macri’s pre-1987 pain testimony for the following reasons: Macri completed an electronics training course in 1984 and unsuccessfully sought work in the field; Macri’s testimony regarding pain prior to 1987 was vague; and Macri was not taking pain medication as of October 1986. The record reflects that Macri could not find work in 1985 and 1986 because of a slowdown in the electronics industry; that Dr. Dorinson reported that Maori’s pain was minimal to slight in November 1985; and that Dr. Prolo noted that Macri’s strength in his lower and upper limbs was intact in October 1986. Because the ALJ stated specific reasons for rejecting Macri’s subjective pain testimony which are supported by the record, the Commissioner did not err by rejecting Macri’s subjective pain testimony. See Magallanes, 881 F.2d at 756. D. Combined Impact of Impairments Macri contends that the Commissioner erred by failing to consider the combined impact of his back impairment and his depression. We disagree. — 545 — When a claimant suffers from multiple impairments, the Commissioner must consider their combined effect in determining whether the claimant is disabled. Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir.1988). The opinion of a psychiatrist who examines the claimant after the expiration of his disability insured status, however, is entitled to less weight than the opinion of a psychiatrist who completed a contemporaneous exam. See Lombardo v. Schweiker, 749 F.2d 565, 567 (9th Cir.1984) (per curiam). Here, none of Maori’s applications for disability insurance benefits mentions any impairment other than his back injury. Macri relies upon two psychiatric reports from Dr. Robert J. Riopelle submitted after the ALJ issued his determination. Because Dr. Riopelle examined and diagnosed Macri’s depression well after his injury and the expiration of his disability insured status, it affords little weight and is not reliable. See id. Macri also relies upon Dr. Prolo’s May 1987 report which notes that Macri had been prescribed Amitriptyline, an antidepressant. Maori provides no evidence, however, that this medication was prescribed prior to the expiration of his disability insured status. Because the record fails to offer sufficient evidence suggesting that Macri suffered from a combination of impairments, the Commissioner did not err by failing to do a multiple impairments analysis. See Bates, 894 F.2d at 1064. E. Medicalr-Vocational Guidelines Macri contends that the Commissioner erred by applying the Medical-Vocational Guidelines (Grids) because of his nonexertional impairment and his inability to do the full range of “light work.” We disagree. Macri failed to offer evidence of a contemporaneous diagnosis of a mood disorder during the relevant time period. Because Macri has failed to establish the existence of a significant non-exertional impairment, the Commissioner correctly applied the Grids. See Desrosiers, 846 F.2d at 577 (mere allegation of non-exertional limitation does not automatically preclude use of the Grids). AFFIRMED. Footnotes [1] Whether or not Maori's November 7, 1985, or May 21, 1986, benefit applications are reopened, substantial evidence supports the ALJ's determination of non-disability. [2] Drs. Harmon, Butcher, Trigiano and Musladin reached the same conclusion. [3] In an argument not raised before the district court or the Commissioner, Macri asserts that the Commissioner erred by failing to take account of Dr. Prolo's August 18, 1988 assessment that Macri was completely disabled. We do not consider arguments raised for the first time on appeal. Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992).