Gamer v. Secretary of Health and Human Services

• Decision Date: 27 April 1987
• Docket Number: No. 86-5922,86-5922
• Citation: 815 F.2d 1275
• Parties: , Unempl.Ins.Rep. CCH 17,377 Lawrence E. GAMER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1275

815 F.2d 1275

17 Soc.Sec.Rep.Ser. 367, Unempl.Ins.Rep. CCH 17,377

Lawrence E. GAMER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 86-5922.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 6, 1987.

Decided April 27, 1987.

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 The ALJ found that Gamer was not disabled. He concluded that Gamer suffered "from severe residuals status post surgery for ulnar nerve transposition of the left elbow and reflex sympathetic dystrophy of the left upper extremity." The ALJ made no finding concerning Gamer's back pain or hypertension but stated that "[t]he claimant's complaints of debilitating pain and functional loss are not supported by the medical evidence of record." With regard to Gamer's ability to work, the ALJ found that Gamer could no longer perform his past relevant work and that none of Gamer's skills were transferable. Nevertheless, the ALJ concluded that Gamer was still able to perform some types of light work such as packaging and sorting.

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

STANDARD OF REVIEW

The decision of the district court granting summary judgment is reviewable de novo. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir.1985). In reviewing the denial of the disability claim, this court must affirm if the Secretary's findings of fact are supported by substantial evidence, 42 U.S.C. Sec. 405(g) (1986), and the Secretary applied the proper legal standards. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir.1984). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). We must consider the record as a whole, weighing both the evidence that supports and detracts from the Secretary's conclusion. Green v. Heckler, 803 F.2d 528, 530 (9th Cir.1986).

DISCUSSION

To qualify for disability benefits, Gamer must show that a medically determinable physical or mental impairment prevents him from engaging in substantial gainful activity and that the impairment is expected to result in death or to last for a continuous period of at least 12 months. Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir.1986) (per curiam); 42 U.S.C. Sec. 423(d)(1)(A). The impairment must result from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. Cotton, 799 F.2d at 1405; 42 U.S.C. Sec. 423(d)(3).

At the hearing on his application for benefits, Gamer bears the burden of proving he is disabled. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir.1986). A claimant makes a prima facie case of disability by establishing that his impairments prevent him from doing his previous job. Gallant, 753 F.2d at 1456; see also 42 U.S.C. Sec. 423(d)(2)(A). The burden then shifts to the Secretary to show that the claimant can do other substantial gainful activity considering his age, education, and work experience. Gallant, 753 F.2d at 1456; see also 42 U.S.C. Sec. 423(d)(2)(A). A claimant who cannot return to his past relevant work is not disabled if he is able to perform other types of work. Hall v. Secretary of Health, Education & Welfare, 602 F.2d 1372, 1375 (9th Cir.1979); 20 C.F.R. Sec. 404.1520(f)(1) (1984).

A. Adjustment to Entry-Level Work

Gamer alleges the Secretary failed to follow its own regulations regarding Gamer's ability to adjust to unskilled, entry-level work. Gamer argues that because he is not able to perform a full range of light work, his age requires that he be considered disabled.

The regulations state that if a person is closely approaching advanced age (50-54), "age, along with a severe impairment and limited work experience, may seriously affect [one's] ability to adjust to a significant number of jobs in the national economy." 20 C.F.R. Sec. 404.1563(c) (1984). The Secretary has adopted a series of grids which take into account these factors. See 20 C.F.R., Pt. 404, App. 2, Tables 1 and 2 (1984). See also Razey v. Heckler, 785 F.2d 1426, 1430 (9th Cir.) (permitting use of the grids in appropriate cases), amended 794 F.2d 1348 (9th Cir.1986). The grids show that a person of Gamer's age, education, and work experience would be considered disabled if that person could only perform sedentary work, but that that same person would not be considered disabled if able to perform light work. See 20 C.F.R., Pt. 404, App. 2, Tables 1 and 2. Compare 20 C.F.R., Pt. 404, App. 2, Secs. 201.10 and 201.14 (1984) with 20 C.F.R., Pt. 404, App. 2, Secs. 202.11 and 202.14 (1984). Capacity to perform a full range of light work includes the capacity to perform sedentary work. 20 C.F.R., Pt. 404, App. 2, Sec. 202.00 (1984).

Gamer's argument fails. The regulations do not state that a person of closely advancing age who cannot perform all types of light work is disabled. Nor do they state that a person unable to perform all types of light work is limited to sedentary work. The grids are to be used as guidelines in appropriate cases. See Heckler v. Campbell, 461 U.S. 458, 470, 103 S.Ct. 1952, 1959, 76 L.Ed.2d 66 (1983). It was, therefore, permissible for the ALJ to conclude that a person closely approaching advanced age who can perform some types of light work is not disabled.

B. Findings Regarding Pain

The Secretary is not required to believe Gamer's pain testimony and may disregard entirely such testimony if Gamer does not submit objective medical findings establishing a medical impairment that could reasonably be expected to produce the claimed pain. See Green, 803 F.2d at 531-32; 42 U.S.C. Sec. 423(d)(2)(A). The Secretary must, however, make specific findings justifying the decision. Martinez, 807 F.2d at 773. It is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings. Cotton, 799 F.2d at 1407.

In this case the ALJ made only a general finding that "[t]he claimant's complaints of debilitating pain and functional loss are not supported by the...