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Thomas v. Astrue

July 19, 2010


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are summarized in the Joint Stipulation. [JS 2]. In a March 12, 2009 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of diabetes, headaches, fibromyalgia, post aneurysm, and carpal tunnel syndrome. [Administrative Record ("AR") 11]. The ALJ concluded that plaintiff was not disabled because she retained the residual functional capacity ("RFC") to perform a range of sedentary work, and therefore could perform jobs available in significant numbers in the national economy. [AR17-18].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Nonexamining physicians Plaintiff contends that the ALJ failed properly to consider the opinion of Ian Happer, M.D., a nonexamining state agency physician. [See JS 3-6].

Dr. Happer concluded that plaintiff could perform sedentary work and could engage in handling and fingering with the left upper extremity "frequiently [sic] and non-repetitively due to" carpal tunnel syndrome. [AR 174]. The ALJ said that he gave Dr. Happer's opinion "great weight" and characterized Dr. Happer's limitations as consistent with the ALJ's RFC finding, which included the ability to "frequently handle and finger using the left upper extremity." The ALJ did not include in his RFC finding Dr. Happer's preclusion against "non-repetitive" fingering and handling. Plaintiff argues that because "most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions," the ALJ's failure explicitly to adopt Dr. Happer's limitation to non-repetitive fingering was reversible error and deprives his decision of substantial support in the record. [JS 3 (alteration and emphasis omitted)(citing SSR 83-10)].

In SSR 96-9p, the Commissioner explained: Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity. Fine movements of small objects require use of the fingers; e.g., to pick or pinch. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions. [¶] Any significant manipulative limitation of an individual's ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base. For example, example 1 in section 201.00(h) of appendix 2, describes an individual who has an impairment that prevents the performance of any sedentary occupations that require bilateral manual dexterity (i.e., "limits the individual to sedentary jobs which do not require bilateral manual dexterity"). When the limitation is less significant, especially if the limitation is in the non-dominant hand, it may be useful to consult a vocational resource.

SSR 96-9p, 1996 WL 374185, at *8 (emphasis in original).

The ALJ obtained a vocational expert's testimony to clarify the effect on the occupational base of plaintiff's non-exertional limitations, including her fingering and handling restrictions. The ALJ's hypothetical question to the vocational expert posited a limitation to occasionalhandling and fingering with the left upper extremity. The vocational expert testified that the hypothetical person could perform the unskilled, sedentary jobs of information clerk, Dictionary of Occupational Titles ("DOT") job number 237.367-022, and general office clerk, DOT job number 209.562-010.

Relying in part on Dr. Happer's opinion, the ALJ ultimately found that plaintiff could perform frequent, rather than occasional, left-sided handling and fingering. The ability to perform an activity "frequently" subsumes the ability to perform that activity "occasionally." Therefore, the ALJ permissibly relied on the vocational expert's testimony identifying jobs that a hypothetical person capable of "occasional" left-sided handling and fingering could perform.

Even if the ALJ erroneously omitted from his RFC assessment Dr. Happer's limitation to non-repetitive handling and fingering with the left upper extremity, substantial evidence supports the ALJ's finding that plaintiff can perform the alternative jobs of information clerk and general office clerk identified by the vocational expert. The DOT states that the job of information clerk, job number 237.367-022, requires occasional handling, and that fingering is an activity that is "not present" in that job.*fn1 Plaintiff's RFC permits frequent (or occasional) handling on the left side, unlimited on the right. The DOT also states that the job of information clerk requires a "low degree" of aptitude or ability in "manual dexterity," corresponding to that possessed by the lowest 1/3 of the population, excluding the bottom ten percent. Thus, while most unskilled sedentary jobs require a high degree of bilateral manual dexterity for fine and/or repetitive movements, the job of information clerk does not. Accordingly, a limitation to ...

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