Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 1439 (9th Cir. 1985)

Laudie L. RIDL, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary of Health and Human Services* , Defendant-Appellee.

No. 88-3737.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1989.Decided July 3, 1989.

Before SCHROEDER, BEEZER and BRUNETTI, Circuit Judges.


MEMORANDUM** 

OVERVIEW

Mr. Laudie Ridl (Ridl) appeals the district court's granting summary judgment affirming the decision of the Secretary of Health and Human Services (Secretary) to deny disability benefits. Ridl contends that: 1) the Secretary's finding that he could perform light work was not supported by substantial evidence; 2) the Secretary's finding that his skills were transferable was not supported by substantial evidence; 3) the Secretary erred by failing to properly evaluate Ridl's pain; 4) the Secretary erred in applying the medical-vocational guidelines. We affirm.

FACTS AND PROCEEDINGS

Ridl, 57 at the time of the hearing in July, 1986, has a seventh grade education and has not worked since 1981. Ridl applied for disability benefits on December 31, 1985. He alleged he became disabled on May 30, 1981, due to back problems resulting from a spinal fusion he had in 1951. He has a variety of other maladies that contribute to his claim of disability including arthritis (resulting from the spinal fusion), cataracts, diabetes, heart problems, allergies, asthma and high blood pressure.

His last full-time job was as a partsman and delivery truck driver for a farm machinery and equipment company for over two years. Before that, he worked for an irrigation company doing field and shop work for 3 to 4 years and was in shipping and receiving for another equipment firm. Since 1981, he has had seasonal work with a local farmer helping with the harvest and other odd jobs, receiving $40.00 per day for harvesting work and $30.00 per day for the other work. He claimed he would work the 1986 harvest, "if I can stand it." During the farm and harvesting work he was allowed to take breaks and rest approximately every hour and he ran a combine when others were taking breaks.

Presently, he works "whenever I can" for the local farmer and averages five days a week, about eight hours a day. He drives 24 miles to get there and most recently acted as a gopher, fetching tools, material, and sheets of tin for others who were building an airplane hangar. He stated he does not lift things above his head but sets them next to the airplane hanger. He stated he cannot weld anymore because of his eyesight. On the weekends he usually mows a lawn or does housework. He tilled his small garden this Spring with a self propelled rotary tiller. He plays accordion. He hasn't camped or fished in two years because he is afraid to drive because his eyes are bad. He stated he uses an exercise bike during the winter at home for about 45 minutes a day. His doctor had recommended that he walk five miles a day but Ridl stated that was too painful and he was able to walk only one to two miles daily.

His medical history begins with a back injury and spinal fusion in 1951 which Ridl stated to be his "most disabling condition ... because I can't stand, sit or walk for any length of time." He also stated that he has constant, daily pain from neuropathy (numbness) of the feet which he attributed to the back injury and in part, to the diabetes. He testified to constant pain in his left hip that causes him to get up out of bed every two hours, or move about every 45 minutes if he is standing or sitting. He stated he cannot put his full weight on it and has problems going up and down stairs. He suffers some arthritis in the spine. He has had no medical care of his back since the spinal fusion.

He claimed difficulty with his prostate, that it caused frequent urination, also causing him to get up in the night. His physician recommended that he seek the help of a urologist but the claimant stated he could not do so without some kind of insurance, or additional funds. He was diagnosed as having diabetes in 1981 and as of the hearing date, his physician's records indicated it was still somewhat out of control. The diabetes causes eye irritation and blurred vision, neuropathy in his feet and a pins and needles sensation in his feet which has existed for a year or more. His vision is also affected by cataracts. He had one cataract removed from his left eye in 1981 and is developing one in his right eye preventing him from driving at night as he has total night blindness. Ridl indicated he has limited motion of his shoulders, apparent in the last five years, preventing him from raising his hands over his head and that he has a loss of grip in his hands, causing him to drop things. He has suffered from high blood pressure since at least 1978 which is controlled by medication. He has some history of heart trouble, initially being treated in 1980 for chest pain, and had a catheterization which found a small area of arteriorsclerosis in the anterior descending coronary artery.

A 1981 disability examination revealed no evidence of any infarction, angina, renal disease or claudication associated with hypertension and no current symptoms of heart failure. Ridl has a long history of bronchospastic disease, asthma and allergies causing seasonal difficulties with nasal congestion followed by wheezing and dyspnea. He is obese and his physician is constantly recommending that he lose weight. He has a history of alcoholism but entered a detoxification unit in 1981 and has not consumed alcohol since. He claimed that the medication he took for the diabetes and asthma, and Tylenol he took for his back make him drowsy and dizzy. He doesn't tolerate smoke, fumes, or other irritants well because of his asthma. In a 1986 disability examination, Ridl indicated his pain and stiffness had been increasing in the low back area and both hips. He complained he had stiffness, inability to lift, pain in walking more than one to two miles and numbness in his feet. The examiner found he did have restricted back motion and some transient muscle spasm, otherwise no "significant abnormalities in gait or posture."

The Administrative Law Judge (ALJ) found that Ridl was of advanced aged, with limited education but that he was capable of light work and his skills were transferable, finding Ridl was not disabled. The Appeals Council declined to review the case and found the ALJ's decision would stand as the final decision. The district court upheld the Secretary's decision by granting summary judgment.

DISCUSSION

We review the district court's granting of summary judgment de novo. Gamer v. Heckler, 815 F.2d 1275, 1278 (9th Cir. 1987). In reviewing the denial of a disability claim, the court of appeals must affirm if the Secretary's findings of fact are supported by substantial evidence, 42 U.S.C. § 405(g) (1986), and the Secretary applied the proper legal standards. Gamer, 815 F.2d at 1278.

Ridl contends that the Secretary's findings that he can perform light work and that his skills are transferable are not supported by substantial evidence. "Substantial evidence" means such relevant evidence a reasonable person might accept as adequate to support a conclusion. Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). We consider the record as a whole, weighing both the evidence that supports and detracts from the Secretary's conclusion. Id.

The ALJ found that Ridl could not perform all aspects of his past work including lifting and carrying. The ALJ found that Ridl has the residual functional capacity to engage in light work. Light work is that which involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. A job is generally in this category if it requires a good deal of walking or standing. 20 C.F.R. 404.1567(b).

The ALJ stated, " [t]he record indicates that his current level of activities are at least equal with the ability to engage in light work." The ALJ acknowledged all of Ridl's claimed maladies but looked to Ridl's activities and concluded that if Ridl could perform those activities in spite of his pain and limitations, he could also perform light work. The ALJ did not discount the physicians' reports but weighed them against the other evidence of Ridl's activities. Considering the record as a whole, substantial evidence supports the finding that Ridl could engage in light work. See Desrosiers, 846 F.2d at 576.

The ALJ found that Ridl's skills were transferable as stated by Ronald Sexton, Ph.D., who testified at the hearing as a vocational expert. Sexton indicated that Ridl had skills in his past work that were transferable to "light" work as an equipment and machinery salesman, counter parts person, or a position of bidding and estimating of irrigation equipment. He indicated these jobs would be semi-skilled and light in nature with minimal lifting requirements. Ridl contends that because the ALJ found he is a "person of advanced age" that he had little time to learn a new skill and apply it to a new job. Dr. Sexton did say that the number of jobs was limited because of Ridl's lack of computer skills and because he cannot lift anything heavy or sit for long periods of time. But in spite of these limitations, the expert testified there were a significant number of jobs. Ridl claims that the expert's testimony should be discounted and in support of his position he offered the report of his expert, Juanita Hooper. Her report stated that a farm equipment salesperson had to carry weight in excess of that for "light work," that the farming equipment market was depressed so few real jobs existed, that Ridl lacked sales experience which was necessary in all the jobs mentioned by the ALJ's vocational expert, and that Ridl lacked the computer training necessary for the job. The ALJ did not find Hooper's evidence determinative as the factors she looked to are not part of the regulations' inquiry. See 20 C.F.R. Sec. 404.1566(c).

Ridl claims that the vocational expert relied on by the ALJ failed to specify what specific work skills were transferable. Contrary to Ridl's contentions, the items mentioned by the expert were particular skills and not merely qualities of "perception and motor coordination." Paulson v. Bowen, 836 F.2d 1249, 1251 (9th Cir. 1988). Specifically, the ALJ found that the skills Ridl learned in his past work such as the knowledge of farm equipment and machinery could be used in a sales position and as a counter parts person. His past work as a service and set up person for the irrigation equipment company was transferable to bidding and estimating jobs with that type of equipment. 20 C.F.R. Sec. 404.1568. The ALJ further found that these jobs exist in significant numbers in the state and national economy. Substantial evidence supports the ALJ's finding that Ridl's skills are transferable.

Ridl contends that the Secretary erred as a matter of law because the ALJ failed to properly evaluate Ridl's allegations of pain. In order to be considered, subjective complaints of pain must be associated with medical impairments that "could reasonably be expected to produce the pain or other symptoms alleged." 20 C.F.R. Sec. 404.1529 (1988); Varney v. Secretary of Health and Human Services (Varney I), 846 F.2d 581, 584 (9th Cir. 1988). If the pain experienced is greater than the impairment would normally be expected to produce it is "excess pain testimony." Varney I at 584. If this excess pain testimony is disregarded, the Secretary must do so with specific findings. Green v. Heckler, 803 F.2d 528, 532 (9th Cir. 1986); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).

The ALJ specifically found that the claimant's complaints were "relatively credible, except to the extent that he alleges he is disabled." The ALJ questioned Ridl extensively at the hearing as to his allegations of pain, and during the vocational expert's testimony, the ALJ specifically directed the expert to address Ridl's pain in the context of light work and the kind of jobs available. The expert testified that

[t]he jobs in machinery sales could include standing and walking from five to six hours a day and a counter parts person would be able to sit, stand or walk up to eight hours a day because stools would be provided and in the bidding and estimating job, a person would only need to walk from two to four hours a day. The sales job and the bidding job would have significant flexibility as to taking breaks with less flexibility in the position as a counter parts person.

The ALJ, acknowledging that Ridl took many breaks while doing the seasonal work, inquired as to the best position with this in mind. The expert testified that the sales work gave the most flexibility. The expert testified that considering Ridl's testimony regarding his physical impairments, his inability to sit, stand or walk for prolonged periods, his pain, neuropathy in his feet and his eyesight, Ridl would be able to perform the jobs in the three areas on a sustained basis. He indicated that the area that would most likely create difficulty would be sitting down and making fine visual discriminations on an ongoing basis. The ALJ specifically found that Ridl had the residual functional capacity to perform the physical exertion requirements of work except for lifting and carrying in excess of 20 pounds and prolonged periods of remaining in static positions. He found no nonexertional limitations as the asthma, heart problems, cataracts, hypertension and diabetes were adequately controlled by medication. The ALJ further found that Ridl's back pain has allowed him "to perform significant physical activities in spite of [the back pain]." The ALJ took full account of all of Ridl's pain testimony and did not err as a matter of law.

Ridl contends that the ALJ erred when he relied on the medical-vocational guidelines for the reasons that he did not take Ridl's nonexertional impairments into consideration, the guidelines are outdated, the pain was not taken into consideration, that no complete hypothetical was ever posed to the ALJ's vocational expert and that the expert had to leave to catch a plane and Ridl's lawyer was not able to fully examine him.

Ridl made a prima facie case of disability by establishing that his impairments prevented him from doing his previous work. Gamer, 815 F.2d at 1278. The burden shifted to the Secretary to show that the claimant could do other substantial gainful activity considering his age, education and work experience. Id.; Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). A claimant is not disabled if he can perform other kinds of work. Gamer, 815 F.2d at 1278. In 1978 the Secretary promulgated the medical-vocational guidelines in order to improve the efficiency and consistency of disability determinations. Desrosiers, 846 F.2d at 576; Heckler v. Campbell, 461 U.S. 458 (1983) (applicability and validity of the guidelines upheld). These guidelines indicate whether a significant number of jobs exist in the national economy that an individual can perform when his functional capacity, age, education and work experience correspond to one of the medical-vocational rules. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). By their own terms, the guidelines are only a framework for reaching a decision when nonexertional, environmental limitations restrict a claimant's ability to tolerate certain work settings. Id.; 20 C.F.R. Sec. 404(P), App.2d Sec. 200.00(e). Ridl claims nonexertional impairments of pain, hypertension, diabetes, heart disease, asthma and allergies. The ALJ modified his reading of the guidelines in two ways to take these nonexertional impairments into consideration.

First, he found that the heart disease, hypertension and asthma were controlled adequately by medication or were otherwise nondebilitating. The ALJ found that Ridl could tolerate the jobs described by the expert by finding that Ridl's activities were evidence that Ridl could perform "light work." The ALJ considered the testimony of Ridl's expert but did not accept the testimony as determinative because he found "Social Security Regulation [20 C.F.R. Sec.] 404.1566(c) provides that it is irrelevant that you would not be hired to do a particular job because of such factors as your inability to get the job, the lack of work in your local area, the hiring practices of employers, technological changes in the industry, cyclical economic conditions, no current job openings or that you would not be actually hired to do the work you could otherwise do."

Second, the ALJ did not rely solely on the guidelines but complemented them with the use of a vocational expert. See Gamer, 815 F.2d at 1279. Ridl contends that because no formal or complete hypothetical was posed to the vocational expert, that the expert's opinion is invalid and not substantial evidence that Ridl can perform light work or that his skills are transferable. It is true the ALJ did not pose all the factors into one question, but the ALJ and Ridl's lawyer asked a series of questions of the expert. These series of questions covered Ridl's claims of pain from his back, hip and shoulders and from the diabetes. The expert addressed Ridl's vision problems, age, education, ability to rest or to move about, lifting and carrying, and his ability to sustain working over a period of time and inability to grip.

The ALJ may rely on evidence of a claimant's ability to perform specific jobs. Gamer at 1279. Here the ALJ relied on Ridl's testimony of his activities, which were many, varied, and would have increased had the work been available. Under the guidelines, taking into consideration the vocational expert's testimony, the ALJ found that under Table 2, Rule 202.03 of 20 CFR(P), App. 2, that a person of advanced age, with limited education but with transferable skills would not be disabled, and thus, Ridl is not disabled. Finally, Ridl complains that the expert had to cut short his examination as he had a plane to catch. The ALJ however, allowed Ridl's lawyer to submit evidence after the hearing and if Ridl felt that additional information was needed he could have requested it at that time.

The district court's granting of summary judgment to the Secretary is affirmed.

AFFIRMED.

 *

Louis W. Sullivan is substituted for his predecessor Otis R. Bowen, Secretary of Health and Human Services, pursuant to Fed. R. App. P. 43(c) (1)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

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