Russell v. Bowen

• Decision Date: 31 August 1988
• Docket Number: No. 87-1865,87-1865
• Citation: 856 F.2d 81
• Parties: , Unempl.Ins.Rep. CCH 14135A Robert R. RUSSELL, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 81

856 F.2d 81

23 Soc.Sec.Rep.Ser. 8, Unempl.Ins.Rep. CCH 14135A

Robert R. RUSSELL, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services Defendant-Appellee.

No. 87-1865.

United States Court of Appeals Ninth Circuit.

Argued Jan. 15, 1988.

Submission Vacated April 17, 1988.

Resubmitted June 1, 1988.

Memorandum Filed July 12, 1988.

Decided Aug. 31, 1988.

Harvey P. Sackett, San Jose, Cal., for plaintiff-appellant.

Michael R. Power, San Francisco, Cal., for defendant-appellee.

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

Before GOODWIN ^*, Chief Judge, NOONAN and THOMPSON, Circuit Judges.

ORDER

The memorandum disposition herein filed on July 12, 1988, is hereby designated an opinion for publication.

OPINION

GOODWIN, Chief Judge:

Robert Russell, a former counselor in the field of substance abuse rehabilitation, became partially incapacitated by reason of a cardio-vascular condition and sought disability insurance benefits under Title II of the Social Security Act (42 U.S.C. Sec. 401 et seq.). He appeals the district court order which denied his petition for review of an administrative denial of benefits. We affirm.

Petitioner was born in 1926, and accordingly qualified for consideration as "an individual who is age 55 or over" and is limited to sedentary occupations. There is no dispute in this case concerning petitioner's medical condition or his inability to work at his former occupation as a rehabilitation counselor in the substance-abuse field. The only dispute on the cross motions for summary judgment was whether he had acquired skills that were transferable to a sedentary occupation within the meaning of the relevant regulations of the Department of Health and Human Services. See 20 C.F.R. Sec. 404.1568. Petitioner contends that his skills are not transferable to sedentary work. The Administrative law judge found that some of his skills were transferable, and the Secretary, upon administrative review, did not disturb the finding. Accordingly, the only issue we are to decide is whether the finding against the petitioner is supported by substantial evidence. 42 U.S.C. Sec. 405(g); Miller v. Heckler, 770 F.2d 845 (9th Cir.1985).

The petitioner's argument essentially consists of his disagreement with the agency's interpretation of skills, traits, and transferability, all words that he claims have specialized meaning in social security disability claims litigation. We need not, in this case, engage in the verbal embroidery necessary to resolve all the possible meanings of the words used in the regulation. It is probably true that the petitioner's skills in counseling are not necessarily transferable to all sedentary work, but there was evidence presented which would support a finding that there would be very little, if any, vocational adjustment required in terms of work processes, or job orientation in undertaking sedentary work in a variety of desk jobs. One expert witness testified to a number of jobs the petitioner could perform, even though his lack of formal education would probably preclude employment in many other sedentary jobs. It is not necessary to agree with everything an expert witness says in order to hold that his testimony contains "substantial evidence." See, e.g., Vincent v. Heckler, 739 F.2d 1393 (9th Cir.1984). Thus, the ALJ's determination that claimant possessed transferable skills is supported by substantial evidence.

Questions of credibility and resolutions of conflicts in the testimony are addressed to the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982); Waters v. Gardner, 452 F.2d 855, 858 n. 7 (9th Cir.1971). Thus, substantial evidence supports the finding that the skills petitioner acquired as a drug and alcohol counselor are readily transferable to alternative jobs.

Petitioner also claims that the Secretary failed to consider whether he possessed skills which are highly marketable. If petitioner had reached the age of 60 at the time of the Secretary's final decision, which he had not, he would not be considered able to adjust to sedentary or light work unless he had skills which are highly marketable. 20 C.F.R. Sec. 404.1563(d) (1987). Petitioner argues that at the time of the final decision, he was "close to retirement age." See id. (defining "close to retirement age" as 60-64). The final decision, petitioner maintains, was effective at the time the Appeals Council reviewed the case. However, as stated by the district court, the Appeals Council did not issue a decision. Rather, on June 10, 1986, it denied review of the ALJ's decision. This rendered the ALJ's decision of September 20, 1985, the "final decision." On September 20, 1985 petitioner was 59 years 5 months old.

To support the district court's finding, the Secretary cites 20 C.F.R. Sec. 404.981 (1987) which states that the Appeals Council's decision or the decision of the ALJ, if the request for review is denied, is binding unless an action is filed in district court or the decision is revised. See also Cooper v. Bowen, 815 F.2d 557, 559 (9th Cir.1987) (treating the ALJ's decision as the final decision of the Secretary of Health & Human Services where the Appeals Council declined to rehear Cooper's claim). While the petitioner correctly states that decisions of the Appeals Council are final decisions subject to review, in this case there was a denial of a review, not a decision by the Appeals Council. Thus the district court correctly determined that the ALJ's decision of September 10, 1985 became the final decision of the Secretary for purposes of judicial review.

At the time of the final decision, petitioner was 59 years and 5 months old. Petitioner advances two arguments. First, this court has held that "... the regulation specifically provides that age categories will not be applied 'mechanically in a borderline situation.' " Calvin v. Heckler, 782 F.2d 802, 805 (9th Cir.1986), quoting 20 C.F.R. Sec. 404.1563(a) (1987). See also Gonzales v. Secretary of Health & Human Services, 784 F.2d 1417, 1420 (9th Cir.1986). ("It is incumbent upon the Secretary to decrease his reliance upon the grids in cases where the individual claimant's circumstances approach the upper limits of the grid's guidelines.") Second, petitioner argues that he was 60 years 2 months before the Appeals Council decision was rendered.

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