Henry GALLANT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee

753 F.2d 1450 8 Soc.Sec.Rep.Ser. 277, Unempl.Ins.Rep. CCH 15,827 Henry GALLANT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee. No. 84-1689. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 5, 1984. Decided Dec. 6, 1984. Gove L. Allen, Meza, Ariz., for plaintiff-appellant. Gary L. Floerchinger, Asst. Regional Atty., San Franscisco, Cal., for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before FERGUSON and NELSON, Circuit Judges, and JAMESON, * District Judge. FERGUSON, Circuit Judge. 1 The Secretary of Health and Human Services, concluding that Harry Gallant was not disabled within the meaning of the Social Security Act, denied his claim for Social Security disability benefits. 42 U.S.C. Sec. 423 . The district court affirmed the Secretary's decision. Gallant appeals to this court and we reverse. FACTS 2 Harry Gallant was born in 1934, and has completed nine years of formal schooling. He worked for 25 years as an operating engineer, operating heavy equipment and as a truck driver hauling heavy equipment. Claimant sustained his injury on October 25,…

The Secretary of Health and Human Services, concluding that Harry Gallant was not disabled within the meaning of the Social Security Act, denied his claim for Social Security disability benefits. 42 U.S.C. § 423 . The district court affirmed the Secretary’s decision. Gallant appeals to this court and we reverse.

FACTS

Harry Gallant was born in 1934, and has completed nine years of formal schooling. He worked for 25 years as an operating engineer, operating heavy equipment and as a truck driver hauling heavy equipment. Claimant sustained his injury on October 25, 1978, as a result of falling four to five feet from a piece of machinery while at work. Subsequently, a myelogram was performed and in November, 1978, he underwent surgery for a herniated disc and was off work for approximately five months. Claimant attempted to continue his former employment, but after three and a half weeks he was forced to terminate because of his back problems.

Thereafter, claimant was treated by Drs. Bloemendaal and Syrenne and was evaluated at the pain clinic at Harborview Medical Center, Seattle, Washington in September and October, 1980. Tests revealed claim *1452 ant had a posterior disc…

(dissenting):

I respectfully and reluctantly dissent. Clearly there is evidence to support a finding of total disability, but from my review of the record as a whole I conclude that there is also substantial evidence to support the finding of the administrative law judge (AU) that Gallant is capable of doing light work.

Our scope of review is well summarized in Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982):

The AU recognized in his findings that if the claimant in fact suffered from constant, severe, excruciating pain, he would be precluded from all work activity. After analyzing in some detail Gallant’s testimony at the hearing and various reports of the eleven doctors received as exhibits, the AU, in weighing the evidence as to the “level of pain,” said in part:

After “carefully reviewing the entire records,” the district court concluded “that there is substantial evidence to support the *1459 AU’s conclusion that Gallant is capable of light work activity.” I agree.

Throughout the record there is evidence that Gallant’s claims of pain were out of proportion to any observed organic pathology. He was frequently described by examining physicians as a person in “no…