Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 1578 (9th Cir. 1989)

Jerald D. BEAN, Plaintiff-Appellant,v.Louis W. SULLIVAN,**  Secretary of Health andHuman Services, Defendant-Appellee.

No. 89-55351.

United States Court of Appeals, Ninth Circuit.

Submitted May 11, 1990.* Decided May 17, 1990.

Before WALLACE, DAVID R. THOMPSON and O'SCANNLAIN, Circuit Judges.


MEMORANDUM*** 

Jerald Bean appeals from the district court's order of summary judgment against his claims for Disability Insurance Benefits and Supplemental Security Income Benefits. See 42 U.S.C. §§ 423, 1382. We affirm.

* Bean filed applications for Disability Insurance Benefits and Supplemental Security Income benefits on July 7, 1981. The applications were initially denied. On motion for reconsideration, the denial was upheld by the Social Security Administration, and then by an Administrative Law Judge ("ALJ") in a decision issued on March 24, 1983, which was approved by the Appeals Council on June 16, 1983.

Bean then filed suit in the United States District Court for the Southern District of California, seeking review of the Secretary's decision denying his claim for disability benefits. In February 1985, the district court remanded the case to the Secretary for further administrative action, including a determination as to whether Bean could do "occupational work of a nonexertional nature."

After a hearing, the ALJ issued a recommended decision on May 21, 1986, finding that Bean had the residual functional capacity to perform the full range of nonstressful light work prior to March 24, 1985, but that thereafter he did not even have the ability to perform the full range of nonstressful sedentary work and he was therefore entitled to Social Security Income Benefits as of March 24, 1985. On September 5, 1986, however, after review of this recommended decision, the Appeals Council found that the decision of the ALJ was not supported by substantial evidence and it remanded the case to an ALJ for supplemental vocational and medical testimony.

After this hearing, the ALJ produced a new recommended decision on January 7, 1987, finding that Bean retained the residual functional capacity to perform the full range of nonstressful sedentary work and therefore was not entitled to benefits.

The ALJ reached this decision by first considering Bean's testimony at prior hearings. Bean testified that he injured his right leg, ankle, and back in 1980. He stated that he wears a back brace and that he has pain in his right leg and back, so that he takes tylenol with codeine on a daily basis. Bean also testified that he has difficulty walking and that while sitting "strains" his back, he could sit for 20-30 minutes at a time. Bean also indicated that he had skin grafts done to remedy a burn on his right hand and that he wears a hearing aid.

The ALJ found that despite Bean's allegations of sitting difficulties, there was no conclusive medical documentation in the exhibit file showing Bean unable to perform sedentary work. See Appellant's Excerpt of Record at 41. Dr. Iverson noted that Bean could not engage in strenuous work, but that Bean could perform "light duty." Id. at 41. Dr. Barron observed, in a July 24, 1985 report, that Bean had a mild to moderate pain disorder and a moderate to moderately severe borderline personality problem. Dr. Barron also observed, however, that Bean showed no signs of abnormality in mood, intelligence, concentration, abstract thinking, social judgment, personal hygiene, or grooming. Id. at 44.

The ALJ also considered two reports of Dr. Townsend. See id. at 46. Dr. Townsend administered several tests to Bean in order to assess Bean's mental condition. Among these were a pschometric and Rorschach test. From these tests results and his own observations, Dr. Townsend determined in 1982 that while Bean was neurologically normal, he had a dysthymic disorder, a borderline personality disorder and episodes of alcohol and substance abuse. See id. at 28. Dr. Townsend concluded, however, that Bean was capable of performing nonstressful, sedentary work. Id. In his 1985 report, however, Dr. Townsend determined that Bean no longer possessed the mental capacity necessary for the adequate performance of even nonstressful, entry-level sedentary work. See id.

The ALJ also considered contrary testimony of Dr. Proud, a medical advisor who reviewed all of the pertinent medical and psychological evidence and assessed its validity. Dr. Proud determined that the reports of doctors Townsend and Barron were either "suspicious" or "invalid." See id. at 42-47. Dr. Proud questioned, in particular, the findings of Dr. Townsend. Dr. Proud found, for instance, that Dr. Townsend allowed Bean to take the psychometric test without clinical supervision. Dr. Proud opined that without such supervision, Bean was able to grossly exaggerate his frailties and this led to obviously "skewed scores" on the test. Id. at 46.

Lastly, the ALJ weighed the testimony of Steven Tenenbaum, a vocational expert. Upon being presented with a hypothetical question from the ALJ which was designed to determine the job prospects of someone in Bean's condition, Tenenbaum opined that Bean could work as an assembler, a sub-assembler, a machine operator, a packager, or a pharmaceutical assembler. Tenenbaum testified that such jobs existed in large numbers in the national economy. Id.

After reviewing all of the foregoing evidence, the ALJ found that Bean has alleged orthopedic and psychological impairments, but that he does not have an impairment or combination of impairments that would render him disabled. Id. at 48. Bean's subjective complaints are not adequately supported by medically acceptable, positive clinical findings. Id. Bean has the residual functional capacity to perform the full range of non-stressful, sedentary work. Id. Vocational expert testimony established that Bean has acquired work skills which, considering his residual functional capacity, he could use in unskilled work activities which exist in substantial numbers in the national economy. Id.

After a review of exceptions and new evidence presented by Bean, the Appeals Council issued a decision on May 29, 1987, modifying the ALJ's decision of January 7, 1987, but also finding that Bean was not disabled. Id.

The case was then reopened in the district court and a supplemental transcript was filed by the Secretary. Following cross-motions for summary judgment, on February 8, 1989, the district court ordered that the Secretary's motion for summary judgment be granted and Bean's be denied. Judgment for the Secretary was entered on February 12, 1989.

Bean now appeals from the summary judgment in favor of the Secretary.

II

This court will not set aside the Secretary's decision to deny benefits unless "the Secretary's findings are based upon legal error or are not supported by substantial evidence in the record as a whole." Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985) (emphasis omitted). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). " [Q]uestions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Waters v. Gardner, 452 F.2d 855, 858 n. 7 (9th Cir. 1971).

Bean contends that the Secretary's decision denying him benefits was not supported by substantial evidence. He argues that no reasonable mind could accept the Secretary's conclusion given the evidence of disability. We disagree.

To obtain disability insurance benefits and supplemental security income benefits, Bean had to show that he was "disabled" for the period which he sought benefits.1 To be "disabled," the claimant must be unable to engage in "any substantial gainful activity" by reason of a "medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a) (3) (A).

In his final decision, the Secretary found that Bean retained the functional capacity to perform work-related functions of an unskilled sedentary nature requiring minimal contact with others and allowing him the option to sit or stand. See Appellant's Excerpt of Record at 48. The Secretary further determined that Bean was capable of performing jobs which existed in significant numbers in the economy as identified by vocational expert testimony, and, accordingly, he was not disabled. Id.

There is substantial evidence in the record to support the Secretary's decision that Bean was not physically unable to work. Dr. Iverson noted that Bean's physical impairments would not preclude him from performing at least "light duty." See id. at 41. Bean's own testimony about his physical activities also tended to disprove his allegation of physical disability. See id. at 42.

There is also substantial evidence to support the Secretary's conclusion that Bean was not psychologically disabled. The Secretary acknowledged that Bean has a psychiatric condition that limits the range of sedentary jobs that he otherwise could perform. See Appellant's Excerpt of Record at 47. But a mental disturbance is not disabling per se; there must be "proof of the impairment's disabling severity." Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir. 1981).

Here, Bean's personality disorder did not preclude him from performance of a simple, repetitive job which involved only minimal interpersonal contact. Dr. Barron observed that Bean had a mild to moderate pain disorder with a moderate to moderately severe borderline personality disorder. See Appellant's Excerpt of Record at 44. Barron also observed, however, that Bean was of average intelligence with no mood abnormalities or impairment of concentration. Id. Bean's social judgment was intact and his personal hygiene and grooming were within normal limits. Id.

Bean would have us rely upon the testimony of Dr. Townsend that he was unable to perform even sedentary work by 1985. The ALJ was entitled, however, to discount opinions of physicians to the extent that they were based on Bean's self-reported limitations. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). The ALJ was also entitled to give weight to the testimony of Dr. Proud, a medical advisor who questioned Dr. Townsend's and Dr. Barron's characterization of the severity of Bean's mental disfunction. See Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989).

Bean contends that the ALJ committed reversible error by failing to provide a proper hypothetical question to the vocational expert Tenenbaum. The ALJ asked Tenenbaum about Bean's ability to perform work on a day-to-day basis. Tenenbaum opined that an individual of Bean's age, education, and work experience, who was unable to sit for more than thirty minutes at a time, or do any repetitive bending, stooping, crawling, extensive walking, or lifting of more than ten pounds, could perform unskilled sedentary jobs. See Appellant's Excerpt of Record at 47. Bean objects to this testimony because the ALJ, Bean asserts, did not properly include in his hypothetical question the severity of Bean's mental limitations.

We disagree. The ALJ was not required to incorporate more severe restrictions into the hypothetical question posed to Tenenbaum where there was substantial evidence supporting the determination that Bean could do simple repetitive jobs involving minimal interpersonal contact. See Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1987). Even discounting this fact, we find that the hypothetical question constituted, at most, harmless error. See Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1984).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4

 **

Louis W. Sullivan is substituted for Margaret Heckler, 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 Ninth Circuit R. 36-3