Unpublished Disposition, 914 F.2d 1496 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 1496 (9th Cir. 1987)

David Allen SAGE, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary, Defendant-Appellee.

No. 89-35061.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 1990.Decided Sept. 24, 1990.

Before JAMES R. BROWNING, ALARCON and KOZINSKI, Circuit Judges.


MEMORANDUM* 

David Allen Sage appeals from the judgment of the district court affirming the denial of his application for social security disability benefits by the Secretary of Health and Human Services (the Secretary). We reverse and remand for further proceedings.

Sage was injured in an automobile accident in August, 1980, and hospitalized with pain and numbness in the shoulders, neck and back. In 1985 Sage was diagnosed as having cervical strain, and in 1987 he underwent a cervical laminectomy.

Sage filed an application for disability insurance benefits on November 24, 1986, claiming disability from October 1983. The application was denied initially and again on reconsideration. Sage requested and obtained a hearing before an Administrative Law Judge (ALJ). On November 30, 1987 the ALJ issued his decision denying benefits.

The ALJ found exertional limitations restricted Sage to sedentary work, and he was unable to return to his past relevant work. The ALJ accepted as "generally credible" Sage's testimony he suffered pain and that the pain, coupled with the effects of his pain medication, affected Sage's concentration and alertness. A vocational expert testified that someone of Sage's age, education, vocational background and exertional limitations could perform several different jobs if his alertness was reduced thirty percent, but further testified he could identify no appropriate jobs Sage could perform if his alertness were reduced forty percent. The ALJ found Sage's alertness was reduced "by as much as 30 percent at times," and that Sage could perform a significant number of jobs in the national economy and was therefore not disabled.

The Appeals Council denied review. Sage appealed to the district court, which affirmed the Secretary's decision. On appeal to this court, Sage argues the ALJ improperly relied on an arbitrary and meaningless determination that Sage was not disabled if his alertness was reduced by thirty percent, but was disabled if his alertness was reduced by forty percent.

Sage bore the initial burden of showing he was disabled. He met this burden by showing he was unable to perform his previous occupation. Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). The burden then shifted to the Secretary to show Sage, considering his residual functional capacity, age, education and work experience, could perform other work in the national economy. Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989).

Denial of disability benefits to a claimant suffering from both exertional and non-exertional limitations must be supported by the testimony of a vocational expert. Stewart v. Sullivan, 881 F.2d 740, 744 n. 5 (9th Cir. 1989); Howard v. Heckler, 782 F.2d 1484, 1486 n. 1 (9th Cir. 1986). The ALJ asks the expert whether, given certain assumptions about the claimant's capabilities, the claimant can perform certain types of jobs, and the extent to which such jobs exist in the national economy. Burkhart v. Bowen, 856 F.2d 1335, 1340 n. 3 (9th Cir. 1988). The hypothetical must set forth all of a claimant's impairments. E.g., Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). "The vocational expert's opinion about a claimant's residual functional capacity has no evidentiary value if the assumptions in the hypothetical are not supported by the record." Id. Accord Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).

To support his decision denying disability benefits to Sage, the ALJ relied on the vocational expert's testimony that several jobs existed that Sage could perform if his alertness were reduced thirty percent from his pain and the side effects of his medication, but that Sage would be unable to perform these jobs if his alertness were reduced forty percent.1 

The vocational expert's testimony was not adequately based on the record. The record does not explain what the ALJ or the vocational expert meant by a thirty percent or a forty percent reduction in alertness. There is no way to know whether the ALJ in asking the questions meant the same thing as the expert in answering them. If the vocational expert's answers are to be useful, the hypothetical questions must be framed in terms of the claimant's specific functional limitations, not in terms of arbitrary and general assumptions regarding degrees of impairment.2 

Further, there is no support for the finding Sage's alertness was reduced thirty percent, but not fifty percent. There is no medical evidence on the issue. The only relevant evidence is Sage's testimony to the effect his inability to concentrate prevented him from working.

We reverse the denial of benefits and remand for further proceedings. On remand the ALJ shall make findings as to the functional limitations caused by Sage's reduced alertness, and frame hypothetical questions to a vocational expert based on those functional limitations.

REVERSED and REMANDED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The questions put to the vocational expert by the ALJ and his answers were as follows:

Q. ... Let's suppose our hypothetical person had the pain the claimant testified as having and takes the medication that the claimant says he takes, and let's suppose that the combination of that pain and the medication for it reduces a person's awareness, alertness to that. Let's say oh, 70 percent of a normal person without pain and not taking the medication. Could such a person do any of these jobs?

A. I think the answer is yes.

Q. Okay. Could you specify which jobs?

A. The jobs I would state would be gate tender, radio dispatcher and ... surveillance system monitor....

* * *

Q. Alright. Now, suppose that because of the pain and the effects of the medication that his awareness, alertness goes down to 60 percent, of what it would be if there were no pain and no medication. Could such a person still do any of these jobs?

A. I would estimate at that point I think it would be prohibitive and I would not identify that these jobs would be appropriate.

 2

We have held a hypothetical posed to a vocational expert inadequate in part because it posited claimant's left arm was impaired, but did not explain how it was impaired. Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1280 (9th Cir. 1987)