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STRAND v. BARNHART

United States District Court, Northern District of California


March 31, 2003

WILLIAM STRAND, PLAINTIFF,
v.
JO ANNE B. BARNHART, DEFENDANT.

The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.

MEMORANDUM AND ORDER

Plaintiff, proceeding in pro per, appeals defendant's denial of his application for social security disability benefits. Now before the Court are the parties' cross-motions for summary judgment. Pursuant to Local Rule 16-5, the motions are submitted on the papers without oral argument. After carefully considering the parties' papers, plaintiff's motion for summary judgment is DENIED and defendant's motion is GRANTED.

I. BACKGROUND

Plaintiff William Strand filed an application for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act on November 29, 1999. He alleged he had been disabled since November 30, 1996 due to several medical conditions, including anemia, right hand and wrist pain, arthritis, and osteoarthritis. The claim was denied initially and on reconsideration, and by an administrative law judge ("ALJ") after a hearing on July 25, 2000. The Appeals Council denied further review. Plaintiff, representing himself, subsequently commenced the instant action for judicial review pursuant to 42 U.S.C. § 405(g).

Mr. Strand is now sixty-two years old. He has a high school education and was the owner-operator of a small shoe store from 1984 until the time he claims he became disabled and unable to work. He alleges that the he became disabled on November 30, 1996 due to chronic anemia, an injured right hand and wrist, osteroporsis, and arthritis.

Mr. Strand injured his right distal radius in a fall on March 10, 1996. Although his fracture healed, he developed right carpal tunnel syndrome after the injury. Mr. Strand wore a wrist brace for his syndrome. While a January 1997 follow-up study showed little improvement, later studies, including one in June 1999, showed evidence of improvement. Nonetheless, Mr. Strand continues to complain of morning stiffness in his wrists. Mr. Strand also has a history of Dupuytren's syndrome, an abnormal thickening of a layer of fibrous tissue beneath the skin of the palm and fingers for which he was treated in June 1999 and April 2000.

II. STANDARD OF REVIEW

This court's jurisdiction is limited to determining whether the Social Security Administration's denial of benefits is supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g). A district court may overturn a decision to deny benefits only if it is not supported by substantial evidence or if the decision is based on legal error. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Ninth Circuit defines substantial evidence as "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F.3d at 1039. Determinations of credibility, resolution of conflicts in medical testimony and all other ambiguities are to be resolved by the ALJ. See id; Magallenes, 881 F.2d at 750. The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1040.

III. DISCUSSION

A. The ALJ's decision

In considering whether a claimant is entitled to benefits, an ALJ conducts a five-step sequential inquiry. 20 C.F.R. § 416.920. At the first step, the ALJ considers if the claimant is engaged in substantial gainful activity; if the claimant is not engaged in substantial gainful activity, the second step asks if the claimant has a severe impairment (i.e. an impairment that has a significant effect on the claimant's ability to function); if the claimant has a severe impairment, the third step asks if the claimant has a condition which meets or equals the conditions outlined in the Listings of Impairments in Appendix 1 of the Regulations (the "Listings"); if the claimant does not have such a condition, the fourth step asks if the claimant is capable of performing his past relevant work, if the claimant is not capable of performing his past relevant work, the fifth step asks if the claimant is capable of performing other work which exists in substantial numbers in the national economy. 20 C.F.R. § 404.1520(b)-404.1520(f)(1). Lastly, if the ALJ finds that the claimant is "disabled or not disabled at any point in the review," the inquiry ends. 20 C.F.R. § 404.1520(a).

In the present case, the ALJ concluded at step two that the residual functional limitations related to Mr. Strand's right wrist fracture, as well as his Dupuytren's syndrome, are severe impairments. At step three the ALJ found that Mr. Strand's impairments, while severe, are not severe enough to meet or equal the conditions in the Listing of Impairments. Based on the testimony of a vocational expert ("VE") the ALJ found at step four that Mr. Strand is incapable of performing his past relevant work as the owner/operator of a shoe store. The VE also testified, however, that Mr. Strand has transferable skills that would transfer to other semi-skilled retail sales clerk jobs that he can perform primarily in a standing position. Based on this testimony, the ALJ found at step five that Mr. Strand could perform a significant range of light work available in the national economy and therefore he is not disabled.

In his motion for summary judgment Mr. Strand notes that the ALJ found he had severe impairments and also found that he could not perform his past relevant work. He appears to take issue with the ALJ's finding that "he has transferable skills from skilled work previously performed." ALJ Decision, Finding No. 1, Transcript ("TR") 21. Mr. Strand contends that the ALJ's finding is refuted by the VE's hearing testimony. He also challenges the ALJ's determination that Mr. Strand's subjective complaints of pain are not wholly credible.

B. The ALJ's finding of transferable skills is supported by substantial evidence

Substantial evidence supports the ALJ's conclusion that Mr. Strand has transferable skills that would allow him to perform other retail light work. See Andrews, 53 F.3d at 1039. The VE testified that given Mr. Strand's limitations — which included limitations on sitting, as well as manual activities of high fluency and precision of handwriting, extensive type writing, operating a digital computer keyboard or threading a needle — Mr. Strand could perform semi-skilled sales clerk jobs as well as the position of tanning salon attendant. TR 51.

Mr. Strand cites to the VE's testimony on pages 52 to 53 of the transcript as refuting the above testimony. At the hearing before the ALJ, Mr. Strand's attorney asked the VE if "the inability to have extensive contacts with others erode any of these jobs in retail and sales that you mentioned?" Tr. 52. The VE answered "certainly." His attorney then directed the ALJ to "the state's analysis of the evidence following Mr. Strand's psychiatric evaluation," and allegedly quoted a Dr. Wilsilic, a State Agency psychologist, as reporting that Mr. Strand "can perform both simple and even more complex tasks, but he will not be able to sustain extensive contacts with others." TR 52.

The Court has been unable to locate any reference in the transcript to a Dr. Wilsilic or to the statement referred to by Mr. Strand's attorney. In any event, assuming such a statement was made, the ALJ did not err by not including "the inability to have extensive contacts with others" as a limitation on Mr. Strand's residual functional capacity. The ALJ specifically found that the March 2000 consultative psychiatric evaluation "confirms that his capacity for work activity is not limited by a psychiatric impairment." Tr. 16. While the consultive psychiatrist, Dr. Johnson, diagnosed Mr. Strand as having a schizoid personality with hypochondriacal features, he concluded that Mr. Strand "does not suffer from any significant psychiatric illness." Tr. 193. Accordingly, the ALJ's finding that Mr. Strand did not suffer from any significant mental impairment is supported by substantial evidence.

C. The ALJ's rejection of Mr. Strand's complaints of pain

A social security disability benefits claimant must "produce medical evidence of an underlying impairment which is reasonably likely to be the cause of the alleged pain." Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc) (adopting standard set forth in Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)). The medical findings need not support the severity of the pain. See Cotton, 799 F.2d at 1407 ("it is improper as a matter of law for an ALJ to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings"). In the absence of affirmative evidence that a claimant is malingering, "the Commissioner's reasons for rejecting the claimant's testimony must be `clear and convincing.'" Lester v. Chater, 81 F.3d at 834. If the adjudicator rejects a claimant's allegations as not credible, he "must specifically make findings which support this conclusion." Bunnell, 947 F.2d at 345. The findings must not force a reviewing court "to speculate as to the grounds for an adjudicator's rejection of a claimant's allegations of disabling pain." Id. (citation omitted).

In accessing Mr. Strand's residual functional capacity, the ALJ found that

[t]he claimant's description of his impairment related functional limitations is not entirely credible given his own report of only low grade right wrist pain with movement. . . . In addition, the claimant was discharged from physical therapy after a 30-day period because the established goals had been achieved. There was no mention of complications or goal compromise. . . . Inconsistent with his allegation of total incapacity on account of his medically determinable impairments, an attending physician noted in April 1999 that Mr. Strand was doing well. . . .
The claimant also maintains a level of activity that is inconsistent with his allegation of disability. He does not have access to kitchen facilities in his residence and eats all meals, aside from an occasional bowl of cereal, in restaurants. He also does his own laundry, but sends shirts out because he is unable to iron them. The claimant moves about the city at will on public transportation. It appears that his daily activities are not significantly limited by his upper extremity impairments.
Tr. 18.

The ALJ's reasons for rejecting Mr. Strand's complaints as to the extent of his pain are "clear and convincing" and are supported by substantial evidence; indeed, Mr. Strand does not contend that the facts upon which the ALJ based his credibility finding are not true.

CONCLUSION

Because the ALJ's determinations, including the step-five determination that Mr. Strand is not disabled because he can perform light-duty work, were supported by clear and convincing reasons and substantial evidence, the judgment of the Commissioner is AFFIRMED.

IT IS SO ORDERED.

JUDGMENT

The Court having granted defendant's motion for summary judgment by Memorandum and Order dated March 31, 2002, it is hereby ORDERED that judgment be entered in favor of defendant and against plaintiff.

IT IS SO ORDERED.

20030331

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