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940 F2d 668 Lawrence v. W Sullivan

940 F.2d 668

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

James LAWRENCE, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, Secretary, Secretary of Health and Human
Services, Defendant-Appellee.

No. 90-55709.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 1991.
Decided July 19, 1991.

Before FLETCHER, CANBY and BOOCHEVER, Circuit Judges.

1

MEMORANDUM*

2

James Lawrence appeals the district court's order upholding the Secretary's denial of Lawrence's claim for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. We reverse.

BACKGROUND

3

Lawrence, a fifty-five year old man, worked as a water utility worker for the City of San Diego for approximately ten years. In this capacity, he worked on a crew performing heavy upkeep for the city's lakes, generally involving use of a jackhammer, shovel, and pick. Because of difficulties caused by carpal tunnel syndrome that surgery in 1980 had ceased to correct, Lawrence in 1984 requested transfer to a position involving a lighter form of work. The position to which he was transferred involved cutting down and moving trees, which caused Lawrence further difficulty with his hands. Unable to obtain a position involving lighter work for the City of San Diego, Lawrence terminated his employment on April 15, 1985.

4

Lawrence filed for disability benefits on July 18, 1985 and for supplemental security income on February 25, 1986. After the claims were denied by an ALJ, the Appeals Council remanded for consideration by an occupational expert of possible mental and psychological difficulties indicated by the record. Subsequently, the ALJ again denied Lawrence's claim of disability. The ALJ found that Lawrence could no longer perform his past relevant work but that he retained functional capacity for the full range of unskilled light work reduced slightly by his inability to perform fine manipulation. Specifically, the ALJ, based on the occupational expert's testimony, found that Lawrence could perform the jobs of parking lot attendant and machine tender, which exist in significant numbers in the national economy. The Appeals Council refused to review the ALJ's findings. On January 17, 1990, the district court upheld the Secretary's decision.

DISCUSSION

5

In order to establish disability, a claimant must demonstrate that he is no longer capable of holding his current job. The burden then shifts to the Secretary to establish that the claimant can engage in other types of substantial, gainful work that exist in the national economy. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.1988). The Secretary can satisfy his burden by either (1) applying the Medical-Vocational Guidelines developed by the Secretary, 20 C.F.R. pt. 404, subpt. P, app. 2, or (2) obtaining the testimony of a vocational expert to show that significant numbers of jobs exist for individuals with the claimant's limitations. This latter route must be pursued by the Secretary where, as in this case, the Medical-Vocational guidelines do not accurately and completely describe a claimant's residual functional capacity, age, education, or work experience. In such a case, the Secretary must obtain the testimony of a vocational expert and identify specific jobs within the claimant's capabilities. Burkhart v. Bowen, 856 F.2d at 1340; Desrosiers v. Secretary, 846 F.2d 573, 578 (9th Cir.1988).

6

In reviewing the Secretary's determination, we will reverse the denial of a disability claim only if the Secretary applied improper legal standards or the Secretary's findings are not supported by substantial evidence in the record as a whole. Gamer v. Secretary, 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.

7

The Secretary bases his determination that Lawrence could hold the job of machine tender on the testimony of the occupational specialist at the administrative hearing. The occupational specialist, however, reached no such conclusion. To the contrary, the occupational specialist testified in response to hypothetical questions posed by the ALJ that Lawrence's difficulties with handling and fingering objects in addition his reduced grip strength caused by carpal tunnel syndrome would limit him to a minimal number, if any, of machine tender jobs. According to the occupational specialist:

8

A. The ... predominant unskilled light work would require manual dexterity and finger dexterity of a prolonged or a continual basis of at least five hours of any given day or what's referred to actually as five to eight hours of the day.... And the kind of jobs that one could perform that are unskilled in nature or sedentary in nature considering those factors, when one would not have that use of arms and hands would be very minimal. There are very few jobs that would exist. There are, if I'm understanding your question correctly, there are jobs that, all of these jobs would require, you know, at least five hours a day use of arms and hands. And some of these jobs you can vary that in terms of finger dexterity but certainly for manual dexterity that we're talking about on a continuous level throughout a work day; that is as far as any grasping is concerned....

9

In response to another hypothetical that included restrictions on handling and fingering in addition to grip restrictions, the ALJ stated:

10

[T]here are various machine tender jobs but, that are machine operator as well that do not require 25 percent grip strength, 75 percent grip strength, excuse me, of normal. Those kinds of--I can't list the number of those jobs because so many others would require finger dexterity which would fall into--in other words you're talking about a minimal number of jobs.

11

AR at 122-27.

12

In this case, the Secretary was required to identify by the use of an occupational specialist specific jobs that Lawrence could perform that exist in significant numbers in the national economy. Here the occupational specialist testified that minimal numbers, if any, of machine tender jobs existed that did not require fine coordination ability and average grip strength. Based on this testimony and the ALJ's own finding that Lawrence suffers from significantly diminished fine coordination ability and grip strength resulting from carpal tunnel syndrome, a finding supported by an overwhelming amount of evidence in the record, we find that the Secretary has failed to demonstrate by substantial evidence that a significant number of machine tender jobs exist in the national economy that a person with Lawrence's limitations could hold.

13

We also reject the Secretary's determination that Lawrence is not disabled because he is capable of holding the position of parking lot attendant. Again, contrary to the statement of the ALJ, the occupational specialist never determined that a person with Lawrence's limitations would be able to hold the job of parking lot attendant, but only that such a person might be able to hold such a job. In the occupational specialist's words, "[p]arking lot [attendant] is maybe one example in considering the physical factors and the skill level that you presented but there really are not that many jobs." AR at 127 (emphasis added).

14

The vast weight of evidence in the record undercuts the Secretary's determination that Lawrence was capable of working as a parking lot attendant. The occupational expert reached his tentative conclusion that Lawrence might be able to perform the job of parking lot attendant only after being directed by the ALJ not to consider Lawrence's educational limitations as restricting the jobs he could hold. Lawrence has only a fourth grade education, an intelligence quotient of 75, demonstrated attentional difficulties, and is "[n]on-proficient in addition, subtraction, multiplication, and division of whole numbers, fractions, decimals, and percentages." AR at 239. The occupational specialist testified that the position of parking lot attendant involves the tender of money. The Secretary fails to demonstrate by substantial evidence that an individual with Lawrence's level of educational attainment and attentional difficulties could perform the arithmetic calculations necessary to deal with money in this position, including determining the amount of time a customer spent in the lot, multiplying this time by the rate charged for the appropriate amount of time (a calculation presumably involving the use of fractions to deal with portions of hours), and then calculating the change required to be returned to the customer.1

15

On finding that the Secretary's determination is not supported by substantial evidence, the decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court. Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985). The record here is fully developed on the issue of Lawrence's limitations and the manner in which these limitations would restrict the jobs Lawrence could perform. Particularly relevant is the occupational specialist's inability to identify any job existing in significant numbers that Lawrence could possibly perform aside from that of parking lot attendant, a position we find that Lawrence's educational limitations preclude him from performing. Further administrative proceedings would only further delay receipt of benefits to which Lawrence is clearly entitled. See Lewin v. Schweiker, 654 F.2d 631, 635-36 (9th Cir.1981). Accordingly, we reverse the judgment of the district court and remand with directions to enter judgment in favor of Lawrence directing the award of benefits.

16

REVERSED AND REMANDED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3

1

Indeed, two years prior to the Secretary's determination that Lawrence could perform the job of parking lot attendant, Lawrence, himself, investigated the possibility of acquiring such a position while receiving vocational rehabilitation counseling. The counselor's report on Lawrence's investigation states:

On February 10, 1986, Mr. Lawrence called and related he has visited two employers relative to parking lot attendant positions. Client related the employers both explained the required duties and inquired about his education level indicating it would be quite a risk to hire an attendant who is likely to make mistakes providing change to customer. Mr. Lawrence stated the attendant must be adept at reading "Time-In" and "Time-Out" and deciding what charge for each fraction of an hour that is utilized. Client related this seems somewhat confusing to him.