Unpublished Disposition, 937 F.2d 612 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1988)

No. 90-55785.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and CANBY, Circuit Judge, and REED, Chief District Judge.* 

MEMORANDUM** 

Walter McMurray appeals the district court's grant of summary judgment in favor of the Secretary of Health and Human Services ("Secretary"), upholding the denial of his claim for disability benefits under Title II of the Social Security Act. The sole question presented is whether there was substantial evidence in the record to support the Secretary's final decision that there are a significant number of jobs existing in the national economy which require no more than light exertion and which McMurray is able to perform despite the almost total impairment of his dominant right hand. We find that the Secretary has failed to meet his burden of showing that there are a significant number of jobs in the national economy for McMurray, and that substantial evidence supports a finding of disability. Accordingly, we remand for an award of benefits.

BACKGROUND

McMurray is a 41-year old man who has worked at various times as a maintenance mechanic, welder, forklift operator and glass handler. He completed the 11th grade and attended but did not complete a community college course in business management. He lost his left eye in an accident in 1971. He also sustained a rotator cuff injury to his left shoulder six months prior to the main injury in question, which prevented him from working for three weeks and left him with mild persistent left shoulder pain with heavy lifting activities.

On April 17, 1985, McMurray suffered an on-the-job accident in which a large piece of glass slipped from tongs and fell on his wrist, causing a deep laceration (essentially to the bone) which severed all the flexor tendons, the ulnar nerve and artery, and 75 to 80 percent of the median nerve in his right wrist. At the time of the accident, Dr. James Marino performed reconstructive surgery to repair the tendons and nerves and concluded in a report to the insurance company on April 24, 1985 that McMurray " [would] be unable to perform his routine occupational activities for an anticipated one year. It is possible he will be left with such severe permanent residuals that he will not be able to return to his previous employment activities."

In the several years following the initial injury, McMurray suffered from a number of infections to the wound and required multiple additional surgeries. McMurray required additional surgery or hospitalization in July, August, October and December, 1985, and January, 1986. McMurray's treating physician, Dr. Rodney MacDonald, noted that the wound was still open at examinations in February and March, 1986. Finally, on May 27, 1986, over a year after the initial injury, Dr. MacDonald observed that the wound was healed and indicated for the first time that McMurray was ready to undertake vocational rehabilitation.

However, eight months later, in February, 1987, McMurray was again hospitalized for three days for an abscess on his wrist. The wound healed a month later. On May 27, 1987, McMurray made his initial application for disability benefits. McMurray subsequently decided to undergo recommended skin grafts to strengthen the skin covering the injury. In August, 1987, Dr. Jonathan Jones "harvested" skin from other areas of McMurray's body. McMurray was hospitalized for two weeks in September, 1987, to undergo the grafting surgery. He was then re-hospitalized briefly in October, November, and December, 1987, because of opening and infection of the site on his back where grafting material had been removed. Letters from Dr. Jones to the insurance company indicate that McMurray's wrist wound was open on March 8, 1988, was closed on April 18, 1988, but again had a small opening on April 25, 1988.

A. Medical Evidence on Gripping and Grasping Capacity

The record contains a series of reports by treating physician Dr. Rodney MacDonald, an orthopedic surgeon and specialist in hand surgery, who made various observations about McMurray's grip strength, his readiness for vocational rehabilitation, the degree of disability, the healing of his wound, and the need for additional surgery. Dr. MacDonald reported that McMurray's grip strength as measured by the Jamar dynamometer was zero on 6/7/85; 15/100 on 6/21/85; 10/130 on 11/15/85; 5/150 on 3/25/86; 20/170 on 4/22/86; 10/155 on 5/27/86; 20/140 on 6/24/86; and 25/120 on 6/5/87.1  Dr. MacDonald consistently reported that McMurray was not ready for vocational rehabilitation through April 22, 1986, but concluded that McMurray had healed sufficiently by May 27, 1986 to undertake rehabilitation.

In a summary on June 24, 1986, Dr. MacDonald listed the following "Factors of permanent disability":

1) The subjective complaint of hypersensitivity of the fingers.

2) The subjective complaint of moderately tender neuromas involving the median and ulnar nerves at the level of the wrist.

3) The subjective complaint of significant sensory loss in the tip of the thumb, middle, ring and little fingers. This subjective complaint is supported by objective findings and results from damage of the median and ulnar nerves.

4) The objective finding of limitation of motion of the major right wrist as recorded.

5) The objective finding of limitation of motion of the fingers as recorded.

6) A diminished grip strength as recorded.

As to the effect of McMurray's injuries on his capacity to work, Dr. MacDonald reported that McMurray was "not able to return to his usual and customary occupation" and that " [a]ny future job assignment would have to preclude heavy work using his right hand." Dr. MacDonald also conditionally observed that McMurray may have sufficient dexterity of his hand to manipulate small objects on an intermittent basis. This can only be determined during the period of vocational rehabilitation screening." (emphasis added) In a supplemental report dated June 29, 1987, Dr. MacDonald noted that "the major right hand has been reduced to an assisting member only." (emphasis added)

In a "special report" of September 25, 1986, which was supplied at the request of McMurray's counsel, Dr. Richard M. Braun, another orthopedic surgeon and hand surgery specialist, noted McMurray's "extreme weakness of pinch." Dr. Braun recorded a grip strength of 10 in the injured hand as compared to 110 in the uninjured hand and noted that McMurray "require [d] effort to get [his] hand on [the] grip meter." McMurray reported to Dr. Braun, consistent with his testimony before the ALJ, that "he is able to grasp some objects but, 'can't let go.' " Dr. Braun concluded after review of McMurray's medical records and examination of his wrist and hand that McMurray "has lost virtually all function involving his right hand. He has only minimal pinch function between the thumb and index finger and this is impaired by loss of sensibility and inability to use his anesthetic, claw hand for any functional activity." (emphasis added) Dr. Braun further noted that " [r]ehabilitation training could be considered for Mr. McMurray but it is unlikely that he could compete in the labor market since his right dominant hand has lost virtually all function."

Dr. Michael J. Cummings, an orthopedist, examined McMurray on July 30, 1987, and provided a report directly to the Department of Social Services, Disability Evaluation Division, on the status of McMurray's right wrist and hand and his lower back.2  Dr. Cummings concluded that McMurray "demonstrate [d] no objective evidence of physical impairment with regard to the low back" and stated that there were no apparent restrictions on McMurray's "sitting, standing, walking, bending, or stooping." As to McMurray's wrist and hand, Dr. Cummings concluded that McMurray "does have substantial impairment of the right hand due to insensibility of portions of the hand, loss of intrinsic muscle activity and fixed contractures of the proximal interphalangeal joint due to scarring and contracture of the flexor tendons." He further stated that McMurray "is unable to use the hand for any effective gripping or grasping activities; he is unable to perform activities involving dexterity, repeated fine motor function, operating controls or machinery." (emphasis added)

At the hearing before the ALJ on June 10, 1988, McMurray testified that his injured hand has a "claw deformity" and that he wears different splints on his hand to keep his fingers straight so that they don't "ball up." He indicated that he wore the splint all the time except when he was sleeping, that he did not know how long he would be required to wear it, and that the splint "gets in the way quite a bit." He stated that he was unable to make a fist. He testified that he is able to drive a car, that he can pick up a pencil with his right hand, and that he can sometimes hold a larger object such as a glass, although it may slip out of his hand or he may not be able to open his hand wider so as to let the object go. He acknowledged at the hearing that he is able to push light objects with his hand, e.g., pushing a styrofoam cup across the table. In response to a question posed by the vocational expert, McMurray demonstrated that he is able to use his right hand to hold one side of his shirt collar while he aligns the buttons and buttons them with his good hand. McMurray also testified that he assists his mother with his brother's young children, helps shop and clean, is able to cook and do laundry, can cut the lawn with a power mower, and has assisted with the feeding and dressing of an adult nephew with cerebral palsy.

At the hearing the ALJ presented the vocational expert with the following hypothetical information:

Okay, let's assume hypothetically what we have is an individual who's blind in his left eye, 20/20 in his right eye, has full use of his left hand. He's right hand dominant, but he had (sic) splint on his right hand. He's limited to very gross dexterity at best. There's no fine hand manipulation.

He can't make a fist. He can pick up large objects. (sic) He can't pick up large objects. He can pick up smaller objects such as a pencil. He can push with it. He's got some loss of feeling and numbness. I would say it's slight to mild in that hand. He can sit and stand up to six to eight hours. He probably can lift and carry with up to twenty pounds on occasion, ten pounds frequently.

He has the residuals of a dystemic (sic) disorder which would probably suggest he should be in a type of environment where it's not highly competitive where he would be limited to simple repetitive tasks....

Tr. at 28-29. In response to this hypothetical, the vocational expert, Dr. Richard Jones, testified that under those conditions McMurray would be unable to perform any of his prior jobs, but that he could perform machine operator or tending jobs such as "glue machine operator," "sleever," "sealing machine operator," or "coating machine operator." Tr. at 30. Dr. Jones testified that there are 3600 such jobs in the San Diego area, 36,000 in California and 360,000 nationally. Tr. at 31-32.

Dr. Jones further testified that the performance of such jobs would not be affected by the fact that McMurray has only one eye since they do not involve moving machinery, heights or climbing. He stated that such jobs involve "basically watching the machine operate. You're not required to do any ... fine dexterous movement with either hand. You're basically loading the machine, watching it work, and correcting, ... stopping it if it ... malfunctions and being able to repair it." He further stated that "you would have to have some use of both hands in either holding or pushing or pulling in some way, but it wouldn't take fine dexterous movement nor strength to repair. Usually it's a stoppage where something will get stuck. You reach in and pull it out or you would push the reset button and it resets itself to start over." Tr. at 30-31 (emphasis added).

In response to an amended hypothetical by the ALJ positing that McMurray "didn't have any use of his right hand, that he wouldn't really be able to grip with it ..., he could push it, but that would be the extent of it," Dr. Jones asserted that McMurray wouldn't be able to do any job at that point. There wouldn't be a significant number of jobs that he would be able to [do] with a non-dominant left hand that would entail simple repetitive tasks." Tr. at 32.

The ALJ relied on Dr. Jones' response to the initial hypothetical and found that there are a significant number of (machine tender) jobs in the national economy which McMurray can perform. He therefore denied McMurray's application for benefits. The Appeals Council denied review of this decision, which became the final decision of the Secretary. McMurray then brought an action in the district court seeking judicial review of the Secretary's decision pursuant to 42 U.S.C. § 405(g). The district court granted the Secretary's cross-motion for summary judgment, finding that the Secretary's final decision was supported by substantial evidence. McMurray filed a timely appeal of that decision.

STANDARD OF REVIEW

The reviewing court's determination is limited to whether the Secretary applied proper legal standards and, if so, whether the findings of the Secretary are supported by substantial evidence. Gamer v. Secretary of Health & Human Services, 815 F.2d 1275, 1278 (9th Cir. 1987); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gamer, 815 F.2d at 1278. The court's review is directed to the record as a whole and not merely to the evidence tending to support a finding. Cox v. Califano, 587 F.2d 988, 990 (9th Cir. 1978).

DISCUSSION

The Social Security Act provides that an applicant must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d) (1) (A). The initial burden of proving disability is on the claimant. However, once he establishes a prima facie case of disability (as McMurray did here) by showing that an impairment prevents him from engaging in his previous occupation, the burden of going forward with evidence shifts to the Secretary.3  The Secretary must then show that the claimant can engage in other types of substantial gainful work which exist in the national economy. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988).

The Secretary can make this showing by applying the medical-vocational grids to demonstrate that other jobs exist for those with the claimant's exertional limitations. Where, as in the present case, the claimant has nonexertional limitations such as fingering and handling constraints which make the application of the grids inappropriate, the Secretary is required to offer the testimony of a vocational specialist. Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 577-79 (9th Cir. 1988); Burkhart, 856 F.2d at 1340-41. In this case, the ALJ properly relied on testimony by a vocational expert, along with the guidance of the grids, to determine whether McMurray had sufficient residual capacity to do jobs existing in the national economy. The question is whether the hypothetical posed to Dr. Jones was accurate regarding McMurray's gripping and grasping ability, Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) ("If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has a residual working capacity has no evidentiary value"), and whether there is substantial evidence in the record taken as a whole that McMurray can perform the jobs enumerated by Dr. Jones at the hearing.

The medical records all reflect that McMurray has little or no effective gripping or grasping capability in his right hand. Dr. MacDonald noted " [a] diminished grip strength" in one report, recorded the actual grip strength figures in various reports, and concluded that McMurray's right hand had been "reduced to an assisting member only." Dr. Braun noted "minimal pinch function" which was further impaired by loss of sensibility and "inability to use [the] anesthetic, claw hand for any functional activity." He concluded that McMurray's "right dominant hand has lost virtually all function." Finally, Dr. Cummings specifically concluded that McMurray "is unable to use the hand for any effective gripping or grasping activities." (emphasis added)

The Secretary acknowledges that the opinions of a claimant's physicians as to what activities the claimant can undertake are entitled to "great weight" where their responses are within their area of medical expertise, Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), as opposed to dealing with the ultimate legal conclusion concerning "disability." Nevertheless, the ALJ, in the hypothetical on which his decision relies, assumes that McMurray has some meaningful grasping capability without making an explicit finding as to why he is disregarding the conclusions of the doctors on that point. "When an administrative law judge disregards the opinion of the treating physician 'he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.' " Stone v. Heckler, 761 F.2d 530, 532-33 (9th Cir. 1985) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Here, the ALJ not only disregarded the opinions of the treating physicians, but those of all the physicians, including Dr. Cummings, the examiner selected by the Department of Social Services.

The only evidence before the ALJ that McMurray has any remaining gripping or grasping ability was McMurray's own testimony that he can pick up a pencil, that he can sometimes hold a glass but may drop it or may not be able to release it, and that he can anchor down his shirt collar. Neither the shirt collar nor the pencil is an object of any weight or size. McMurray's testimony as to the larger somewhat heavier object--the glass--indicates that his gripping ability is entirely unreliable. Neither the ALJ nor the vocational expert made any reference to the specific grip strength figures included in Dr. MacDonald's and Dr. Braun's reports, nor do the authors of those reports suggest the significance of those grip strengths. Thus, other than the most minimal gripping and grasping of light objects, McMurray's ability to grip and grasp is not demonstrated in the record.

The ALJ made conflicting observations regarding McMurray's capacity to grip and grasp. He reiterated Dr. Cummings' conclusion that McMurray "is unable to use his right hand for an effective grip or grasp activity," but nevertheless went on to state at a later point in his decision that McMurray "could push and grasp small objects." In framing the initial hypothetical, the ALJ posited that McMurray had "limited grasping and can push" with his right hand in order to obtain an answer from the vocational expert that jobs existed for McMurray. When the ALJ posed a second hypothetical in which McMurray "wouldn't really be able to grip with [the right hand]" but "could push it," the expert concluded that there would be no jobs.

"The ALJ's depiction of the claimant's disability must be accurate, detailed, and supported by the medical record." Desrosiers, 846 F.2d at 578 (Pregerson, J. concurring). The hypothetical on which the ALJ relied in making his finding of non-disability in this case posited some functional grasping capability, a factual predicate which simply is not supported by the medical record. Thus, the expert's response to that hypothetical has no evidentiary value. Gallant, 753 F.2d at 1456. The second hypothetical, which recognized that McMurray "wouldn't really be able to grip," more accurately reflected the medical evidence in the record. In response to that hypothetical, the vocational expert stated that there were no jobs in the national economy which McMurray could perform. Thus, there was no substantial evidence in the record that McMurray could perform a job which existed in significant numbers in the national economy. On the contrary, substantial evidence supported a finding that there were no such jobs.

Because we find substantial evidence in the record as a whole supporting a finding that McMurray is disabled within the meaning of the Act, we need not remand the case to the ALJ for further proceedings. See Gallant, 753 F.2d at 1457. We therefore REVERSE the judgment of the district court and REMAND with instructions that a judgment be entered directing an award of disability benefits to the claimant.

 *

The Honorable Edward C. Reed, Jr., Chief Judge for the District of Nevada, sitting by designation

 **

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

 1

There is no explanation in the record of the significance of the grip measurements, nor does the administrative law judge ("ALJ") discuss the grip strength figures or their meaning in his decision. It appears that the lower number reflects the grip strength in the injured hand and the higher number reflects the grip strength in the non-injured hand. Thus, the grip strength in McMurray's injured right hand fluctuates from well under 10 percent to around 20 percent of the strength in his left hand. After each new surgery or infection, the grip strength dropped back down below ten percent. There is no grip measurement in the record following the last surgery performed by Dr. Jones in September, 1987

 2

Dr. Cummings was an "examiner" for the Department of Social Services who performed the evaluation at the request of the Department

 3

A claimant can conclusively demonstrate disability by showing that he or she is suffering from an impairment which meets the duration requirement and which meets or equals a listed impairment in 20 C.F.R. Sec. 404, Subpart P, Appendix 1. If a claimant demonstrates a listed impairment, then a finding of "disabled" will be made without consideration of vocational factors such as age, education and work experience. 20 C.F.R. Sec. 404.1520(d). The ALJ found that McMurray's right hand injury did not meet the level of severity required by the Listings of Impairment because his left hand was unimpaired