815 F.2d 1275 (9th Cir. 1987), 86-5922, Gamer v. Secretary of Health and Human Services

Docket Nº:86-5922.
Citation:815 F.2d 1275
Party Name:Lawrence E. GAMER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
Case Date:April 27, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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815 F.2d 1275 (9th Cir. 1987)

Lawrence E. GAMER, Plaintiff-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 86-5922.

United States Court of Appeals, Ninth Circuit

April 27, 1987

Argued and Submitted Feb. 6, 1987.

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[Copyrighted Material Omitted]

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Martin Taller, Anaheim, Cal., for plaintiff-appellant.

Dennis J. Mulshine, David Mazzi, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, SKOPIL and KOZINSKI, Circuit Judges.

SKOPIL, Circuit Judge:

Lawrence E. Gamer appeals the district court judgment affirming the decision of the Secretary of Health and Human Services (Secretary) to deny disability benefits. Gamer contends that: (1) the Administrative Law Judge (ALJ) failed to follow the Secretary's regulations in considering how Gamer's age would affect his ability to adjust to unskilled, entry-level work; (2) the ALJ made inadequate findings regarding pain; (3) the ALJ asked hypotheticals which improperly failed to include all of Gamer's impairments; and (4) the Appeals Council failed to consider material evidence submitted after the decision of the ALJ.

We affirm in part, reverse in part, and remand to the agency for a new hearing.

FACTS AND PROCEEDINGS BELOW

Gamer, age 54, suffers from hypertension, upper and lower back pain, and pain in the left arm and hand. He has not engaged in his previous occupations as an auto mechanic and truck driver since October 21, 1981. Gamer is left-handed.

Gamer has received treatment since September 1982 for his medical problems. In March 1983 Gamer underwent surgery to have his left ulnar nerve repositioned, but the operation was unsuccessful. Medical examinations have revealed that Gamer suffers from reflex sympathetic distrophy of the upper left extremity and causalgia with partial legion of the left ulnar nerve. Medical reports confirm that Gamer experiences significant pain in his left arm and that use of the arm and hand are limited. Gamer also complains of back pain. The medical reports confirm the problem, but do not rate it as severe. Gamer has had high blood pressure throughout his treatment even though he has received medication for this ailment. The medical reports do not mention any pain or other disability resulting from Gamer's hypertension.

Gamer applied for disability benefits in September 1983. His claim was denied and then referred to an ALJ who held a hearing and considered the case de novo. At the hearing the ALJ considered Gamer's medical records. Gamer and a vocational rehabilitation counselor, Dr. Perrin, testified.

At the hearing, Gamer stated that pain prevented him from using his left arm and hand for most functions. He had limited use of two fingers on the left hand. He had difficulty in writing and could not pick up anything heavier than a coffee cup. Gamer also testified that he suffered from upper and lower back pain, and that he could sit for only ten to fifteen minutes at a time. He was not sure how his hypertension affected his activities, but thought it left him tired and listless.

The vocational expert classified Gamer's previous work as semi-skilled with medium exertion and stated that Gamer could no longer perform this type of work. The ALJ then asked the vocational expert several hypothetical questions which required him to give a response based upon Gamer's testimony and the vocational expert's observations of Gamer during the hearing. The questions required the vocational expert to assume that Gamer's testimony regarding his arm was credible, but that his testimony regarding his back was not. The vocational expert testified that a person with Gamer's impairments could perform light entry-level jobs within the current labor market. The vocational expert explained that such a person might be able to perform a "packaging type of activity of the light exertional unskilled nature" or "sorting activity." He testified that Gamer had some transferable skills, but that these

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skills were not transferable to any job Gamer might still be able to perform.

The ALJ found that Gamer was not disabled. He concluded that Gamer...

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