Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1991)

Katherine GEIGER, Plaintiff-Appellant,v.Louis SULLIVAN, Secretary of Health and Human Services,Defendant-Appellee.

No. 90-55671.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1991.Decided May 24, 1991.

Before HUG, WILLIAM A. NORRIS and LEAVY, Circuit Judges.


MEMORANDUM* 

Katherine Geiger appeals from the district court's judgment affirming the decision of the Secretary of Health and Human Services ("Secretary") to deny her application for disability insurance benefits and Supplemental Security Income under Title II and Title XVI of the Social Security Act, as amended. We affirm.

DISCUSSION

Geiger contends the Secretary erred in determining that she was not disabled under the Act. Geiger raises five challenges to the Secretary's decision. First, Geiger argues that the Secretary's adverse credibility determination is not supported by substantial evidence. Second, Geiger asserts that the Secretary's finding that she has the residual functional capacity to walk and stand for 6 hours out of an 8-hour day with occasional periods of sitting, lift and carry up to 10 pounds with occasional lifting of 20 pounds, or in the alternative to sit for most of the time with occasional periods of walking with a significant degree of pushing and pulling of arm controls, is not supported by substantial evidence. Third, Geiger claims that the Secretary's finding that she has the residual functional capacity to perform the full range of light work is not supported by substantial evidence. Fourth, Geiger maintains that the Secretary erred by finding that she has the residual functional capacity to perform a significant number of jobs in the national and regional economy. Finally, Geiger avers that the ALJ's conduct in administering the hearing deprived her of a fair hearing.

We review the district court's grant of summary judgment de novo. McAllister v. Sullivan, 888 F.2d 599, 601 (9th Cir. 1989). We will affirm an ALJ's denial of disability benefits if the findings are supported by substantial evidence and the Secretary applied the correct legal standards. Id. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971).

Turning to Geiger's contentions, we reject her claim that the Secretary's finding that her complaints of severe disabling pain were not credible is not supported by substantial evidence. The Secretary may reject a claimant's subjective complaints of disability if specific findings are made. Varney v. Secretary of HHS, 846 F.2d 581, 584 (9th Cir.), modified, 859 F.2d 1396 (9th Cir. 1988). Here, the ALJ found that Geiger's testimony of disabling pain was not credible for the following reasons:

The claimant answered questions alertly at the hearing and there were no indications of any interference with her ability to concentrate or to respond as a result of pain. All of the claimant's physical examinations by doctors, any pain elicited has been deemed to be slight or mild. The claimant testified at the hearing that she is able to fix meals, including coffee, can wash up, take a bath and do the dishes, although slowly. She watches television, reads and writes letters, and does take care of her bird. Thus, it is apparent that the claimant's activities of daily living suggest that she is not suffering the severity of pain as she alleges, and that her activities of daily living are not substantially restricted.

We find that these findings are supported by substantial evidence.

First, the Secretary's finding that any pain elicited in Geiger's examinations was only slight or mild is consistent with the medical evidence. Although Dr. James Tasto characterized Geiger's back pain as being "significant," he concluded that Geiger's pain only prevented her from lifting over 25 pounds and prolonged lifting, standing, or bending--a description that is consistent with light work. Dr. Morris Skinner similarly concluded that Geiger was restricted to light work. Dr. Lenora Brown also concluded that Geiger could perform light work based on the objective medical evidence and that, based on Geiger's subjective complaints of pain, she could perform sedentary work. Although Dr. Nathaniel Rose did state that Geiger was suffering from chronic pain, we conclude that the Secretary's finding is based upon such sufficient relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and therefore is supported by substantial evidence.

Second, we conclude that the Secretary's findings that Geiger's activities of daily living suggest that she is not suffering the severity of pain as she alleges is also supported by substantial evidence. Although Geiger maintains that all of her daily activities are restricted by her pain, we believe that the Secretary's finding that her ability to engage in and perform these daily activities in itself is sufficient relevant evidence as a reasonable mind might accept as adequate to support the conclusion that Geiger was not completely disabled. Accordingly, we hold that substantial evidence supports the Secretary's finding that Geiger's complaints of severe disabling pain were not credible.

We also reject Geiger's contention that substantial evidence does not support the Secretary's findings that she has the residual functional capacity to perform the full range of light work, or that she has the residual functional capacity to walk and stand for 6 hours out of an 8-hour day with occasional periods of sitting, lift and carry up to 10 pounds with occasional lifting of 20 pounds, or in the alternative to sit for most of the time with occasional periods of walking with a significant degree of pushing and pulling of arm controls. Light work is defined under the regulations as involving:

lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.... [and] requir [ing] a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.

20 C.F.R. Secs. 404.1567, 416.967. The Secretary's finding of Geiger's residual functional capacity comports with this definition, as well as with the medical evidence. As has been noted above, Dr. Tasto, Dr. Skinner, and Dr. Brown all concluded that Geiger was able to perform light work. We hold that this is such sufficient relevant evidence as a reasonable mind might accept as adequate to support the Secretary's finding.

We next reject Geiger's contention that the Secretary erred by finding that she has the residual functional capacity to perform a significant number of jobs in the national and regional economy. Geiger maintains that her past relevant experience was unskilled and therefore, that she has no transferable skills. We disagree. The vocational expert, Steven Tenenbaum, testified that Geiger's past relevant work was semi-skilled. The Dictionary of Occupational Titles ("DOT") identifies Geiger's past relevant experience as a waitress in an informal restaurant as having a specific vocational preparation rating ("SVP") of 3. An SVP of 3 indicates a position which requires training of at least thirty days to three months. The regulations provide that unskilled work, on the other hand, ordinarily requires no more than thirty days training time. 20 C.F.R. Secs. 404.1568(a), 416.968(a). Hence, we conclude that the vocational expert's designation of Geiger's past relevant work as semi-skilled was not erroneous. We therefore find that the Secretary properly relied on the vocational expert's testimony that Geiger could perform a total of 5000 semi-skilled, sedentary jobs in the San Diego area, including receptionist, hotel or motel clerk, or night clerk positions, as well as over 20,000 light hostess or cashier jobs in the Southern California region.

Finally, we reject Geiger's claim that she was denied a fair hearing by the ALJ. Geiger cites to a passage in which the ALJ, based on his personal experience, questioned Geiger's testimony that she often had to bus tables while a waitress at Denny's. Geiger also cites to a passage in which the ALJ questioned her concerning her medication. Upon review of the entirety of the hearing transcript, we conclude that Geiger was not deprived of a fair hearing. Although we agree that the ALJ's comments concerning his personal experience at Denny's were both inappropriate and worthy of no evidentiary value, we do not find these statements sufficient to make the hearing fundamentally unfair. We also find that the ALJ's questions concerning Geiger's medications were entirely proper.

Accordingly, we conclude that the Secretary's determination that Geiger is not disabled is supported by substantial evidence.

AFFIRMED.

 *

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