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Heller v. Astrue


July 14, 2009


The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge


Edward Heller filed this action on July 22, 2008. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on October 31 and November 10, 2008. (Dkt. Nos. 8, 9.) On April 6, 2009, the parties filed a Joint Stipulation ("J.S.") that addressed a disputed issue. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this opinion.


On April 12, 2006, Heller filed an application for Supplemental Security Income benefits alleging a disability onset date of March 1, 2000. A.R. 10. The applications were denied initially and upon reconsideration. Id. An Administrative Law Judge ("ALJ") conducted a hearing on January 14, 2008, at which Heller and a vocational expert ("VE") testified. A.R. 22-35. On January 24, 2008, the ALJ issued an unfavorable decision. A.R. 10-13. On May 27, 2008, the Appeals Council denied Heller's request for review. A.R. 1-4.

This lawsuit followed.


Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.


A. Disability

A person qualifies as disabled and is eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed. 2d 333 (2003).

B. The ALJ's Findings

Heller has a severe impairment of severe, bilateral Dupuytren's contracture.*fn1 A.R. 12. Heller has the residual functional capacity ("RFC") "to perform light work with occasional handling and fingering of the upper extremity." Id. Heller is unable to perform his past relevant work. Id. However, there are jobs Heller can perform, including counter clerk or laminate Order (sic). A.R. 13.

C. The RFC

The RFC determination measures the claimant's capacity to engage in basic work activities. Bowen v. New York, 476 U.S. 467, 471, 106 S.Ct. 2022, 90 L.Ed. 2d 462 (1986). The RFC represents "the most [an individual] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a). It is an administrative finding, not a medical opinion. 20 C.F.R. § 404.1527(e)(2). The RFC takes into account both exertional limitations and non-exertional limitations. "When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and internal quotation marks omitted).

Heller argues that, based on the medical evidence, Heller cannot perform occasional handling and fingering.*fn2 Heller argues that a more restrictive handling and fingering limitation would result in a finding of disabled. J.S. 4-5.

Heller's focus is on the consultative examining orthopedist's report dated June 1, 2006. A.R. 128-31. With respect to Heller's hands, Dr. Bleecker concluded: "He would have difficulty using his hands for any type of gross or fine activities due to the lack of motion that is present." A.R. 131. The ALJ relied on Dr. Bleecker's report. A.R. 11.*fn3

When Heller was seen at the Venice Family Clinic on November 22, 2005, a physical exam revealed that he had "severe limitation of movement of both hands." A.R. 121. When Heller was seen at the Harbor-UCLA Medical Center on February 1, 2006, the nurse stated that Heller's hand grip was within normal limits but he had limited extension of his fingers. A.R. 123. The nurse also found that Heller would "likely need surgery in future." Id.

"'Occasionally' means occurring from very little up to one-third of the time." SSR 83-10, available at 1983 WL 31251, *5. As an example, the agency states: "Since being on one's feet is required 'occasionally' at the sedentary level of exertion, periods of standing or walking should generally total no more than 2 hours of an 8-hour workday." Id.

There is no substantial evidence in the record indicating that Heller can perform handling or fingering for two hours in an 8-hour workday.*fn4 The VE testified that if Heller's limitation on handling and fingering was less than occasional, he was precluded from any work at the light level. A.R. 33. The VE testified that at the sedentary level, there would be fewer than ten jobs. A.R. 34. Heller argues that because the VE's testimony precludes anything but sedentary work, in light of Heller's age, education, and work experience, a finding of disabled is required pursuant to 20 C.F.R., Pt. 404, Subpt. P, Rule 201.14. J.S. 5. Rule 201.14 applies to claimants who (1) are closely approaching advanced age; (2) are at least a high school graduate; and (3) have previous skilled or semiskilled work experience with transferable skills. The ALJ found that Heller was closely approaching advanced age and had a high school education; however, he did not find whether Heller had transferable skills because it wasn't material to a determination on the light work grid. A.R. 13. Whether the claimant has transferable skills or not, the light work grid would find Heller not disabled. See Rules 202.14 & 202.15. However, with respect to sedentary work, Rule 201.15 applies if Heller's skills are not transferable and dictate a finding of not disabled.

Accordingly, this matter must be remanded to determine whether Heller has transferable skills. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). If, on remand, the ALJ finds that Heller does not have transferable skills to a sedentary job, the ALJ must award benefits.


IT IS HEREBY ORDERED that the matter is remanded to the Commissioner for proceedings consistent with this opinion.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

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