Jerry W. Wilmette v. Secretary of Health and Human Services

42 F.3d 1404 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Jerry W. WILMETTE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 93-55679. United States Court of Appeals, Ninth Circuit. Submitted Oct. 31, 1994. * Decided Nov. 17, 1994. Before: CANBY, LEAVY, and T.G. NELSON, Circuit Judges. 1 MEMORANDUM ** 2 The parties are familiar with the facts, so we need not recite them here. In his Request for Reconsideration, Jerry Wilmette stated that after 20 to 30 minutes of sitting, his legs would get very numb and he would have to get up and move around. However, at the hearing Wilmette testified three separate times that he could sit for forty to forty-five minutes before numbness started setting in. Even assuming that the ALJ had conflicting evidence before him concerning the length of time that Wilmette could sit, it is the trier of fact and not the reviewing court which must resolve conflicts in the evidence. Matney v. Sullivan, 981…