Curnow v. Commissioner of the Social Security Administration
Filing
17
ORDER DENYING DEFENDANT'S MOTION TO STRIKE AND DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT by Judge Paul S. Grewal denying 9 Motion for Summary Judgment; denying 16 Motion to Strike 10 Opposition/Response to Motion, (psglc2, COURT STAFF) (Filed on 9/26/2012)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
10
SAN JOSE DIVISION
11
12
13
14
15
16
17
18
MICHAEL JOSEPH CURNOW,
)
)
Plaintiff,
)
v.
)
)
)
MICHAEL J. ASTRUE, COMMISSIONER OF )
SOCIAL SECURITY,
)
)
Defendant.
)
)
)
)
)
19
20
21
Case No.: 11-cv-02589-PSG
ORDER DENYING DEFENDANT
MICHAEL J. ASTRUE’S MOTION
TO STRIKE AND DENYING CROSSMOTIONS FOR SUMMARY
JUDGMENT
(Re: Docket Nos. 9, 10)
Plaintiff Michael Joseph Curnow (“Curnow”) filed this action on May 31, 2011, appealing
the decision by Michael J. Astrue, Commissioner of Social Security (“Commissioner”), denying
disability insurance benefits. 1 Curnow moves for summary judgment. The Commissioner opposes
22
23
the motion and cross-moves for summary judgment. The Commissioner also moves to strike
24
Curnow’s submitted sur-reply. The matter was submitted without oral argument pursuant to Civ.
25
L.R. 16-5. Having reviewed the papers and considered the arguments of counsel, the court
26
1
27
28
The challenged decision was rendered by Administrative Law Judge Teresa L. Hoskins Hart (the
“ALJ”) on February 1, 2010. The ALJ’s decision became final on March 24, 2011, when the
Appeals Council of the Social Security Administration denied Jorgensen’s request for
administrative review of the decision.
1
Case No.: 11-02589 PSG
ORDER
1
2
DENIES the Commissioner’s motion to strike and DENIES the cross-motions for summary
judgment. The matter is remanded for further proceedings.
I. BACKGROUND
3
4
The following facts are taken from the February 1, 2010 decision by the ALJ and the
5
accompanying administrative record (“AR”). Curnow was born on October 2, 1961 2 and obtained
6
his GED around 1980. 3 He worked as a property inspector from 1992 to 2002, as a truck driver for
7
8
9
United States District Court
For the Northern District of California
10
a freight company from 2002 to 2006, and as a pilot car escort from 2006 to 2008. 4 He has
suffered from fibromyalgia from at least 2003 and has struggled with anxiety and depression for
several years. 5
11
A.
12
On February 2, 2008, Curnow was involved in a motor vehicle accident 6 and met with his
13
Medical Evidence
primary physician, Dr. Jon Dykstra (“Dykstra”), two days later. 7 Curnow told Dykstra that his car
14
had hit ice on the road, the car had rolled, and he had hit the side window with enough force to
15
16
knock it out of its track. 8 Dykstra diagnosed Curnow with post-concussion syndrome, and after
17
repeated complaints from Curnow that he suffered headaches and personality shifts, 9 Dykstra
18
referred him in May 2008 to neurocognitive therapy. 10 Curnow also underwent at least two CT
19
2
AR at 118.
3
Id. at 140.
4
Id. at 136.
5
Id. at 17.
6
Id. at 261.
7
Id. at 214.
8
Id. at 214.
9
Id. at 209, 211.
20
21
22
23
24
25
26
27
10
28
Id. at 255.
2
Case No.: 11-02589 PSG
ORDER
1
scans and two MRI scans, and none of the tests revealed abnormalities or injuries. 11 Curnow
2
visited Dr. William Herzberg (“Herzberg”) in April and in May, and Herzberg noted Curnow had
3
“headaches triggered by neck pain.” 12
Curnow completed the neurocognitive therapy in September 2008, 13 but continued to
4
5
complain of headaches and memory problems. 14 He also reported ongoing anxiety, 15 nightmares
6
while sleeping, 16 and, at one point, suicidal thoughts that led him to admit himself to a hospital. 17
7
8
9
His wife 18 reported that Curnow suffered from mood swings and struggled with day-to-day tasks to
care for himself. 19
Curnow filed for Social Security disability insurance benefits on April 29, 2008. 20 To aid
United States District Court
For the Northern District of California
10
11
in determining his eligibility, he underwent examinations by Dr. Tom M. Dooley (“Dooley”), a
12
licensed psychologist, and Dr. Kim Webster (“Webster”), a physician. 21 Dooley noted Curnow’s
13
14
anxiety and memory problems, but indicated Curnow had scored well on a mental health status
exam. 22 Webster noted that Curnow had neck and low back pain, diabetes, anxiety, depression,
15
16
11
Id. at 210, 233, 241, 249, 264.
12
Id. at 241.
13
Id. at 320-21.
14
Id. at 360.
15
Id. at 350.
16
Id. at 360.
17
Id. at 344.
18
Curnow and his wife have since divorced. Id. at 43.
19
Id. at 143, 212.
20
Id. at 15.
21
Id. at 265-69, 307-12.
22
Id. at 268.
17
18
19
20
21
22
23
24
25
26
27
28
3
Case No.: 11-02589 PSG
ORDER
1
2
hypertension, insomnia, and restless leg syndrome, but concluded that he would not be restricted
from standing, walking, or sitting and that he could lift and carry objects. 23
Dr. John F. Robinson (“Robinson”), a state agency psychologist, reviewed Curnow’s
3
4
records, including Dooley’s report, and concluded that Curnow had “mild cognitive problems”
5
possibly arising from the concussion. 24 He found, however, that Curnow’s “principal impairment
6
is apparently anxiety,” and that his “alleged cognitive issues would not preclude all work.” 25 Dr.
7
8
9
United States District Court
For the Northern District of California
10
Robert Hoskins (“Hoskins”), a medical doctor, also reviewed Curnow’s records. He concluded
that Curnow had some limitations on his physical abilities, but noted that Curnow’s problem was
“primarily a psych issue.” 26
11
12
13
14
Curnow also visited Dr. Paula Chaffee (“Chaffee”), a psychologist, for an assessment in
support of his disability claim. 27 Chaffee noted that Curnow “is expected to have significant
difficulty maintaining adequate pace in a work environment” and “is significantly slower at
problem-solving than others his age.” 28 She suspected that Curnow “may have Dementia Due to
15
16
Head Trauma” and noted that “[t]he fact that [Curnow’s] CT scans after his motor vehicle accident
17
were within normal limits does not rule out a mild traumatic brain injury.” 29 She opined that
18
“[p]rognosis for [Curnow] is felt to be poor,” but that Curnow did “not require assistance for
19
supplemental funds management.” 30
20
21
23
Id. at 312.
22
24
Id. at 287.
23
25
Id. at 287.
24
26
Id. at 320.
25
27
Id. at 383.
26
28
Id. at 394.
27
29
Id. at 393.
28
30
Id. at 394.
4
Case No.: 11-02589 PSG
ORDER
C.
1
ALJ’s Findings
On December 17, 2008, Curnow’s application for disability benefits was denied after
2
3
reconsideration. 31 He had a hearing before the ALJ on January 25, 2010. 32 The ALJ determined
4
that Curnow’s accident had not rendered him disabled, as defined by the Social Security Act. 33 For
5
the first two steps of the disability analysis, she found Curnow had not engaged in substantial
6
7
8
9
gainful activity since his injury and Curnow’s post-concussion disorder qualified as a severe
impairment under 20 C.F.R. § 404.1520(c). 34 At the third step, the ALJ found Curnow’s
impairment or combination of impairments did not meet the criteria for a listed impairment. 35 For
United States District Court
For the Northern District of California
10
the fourth step, she found that Curnow had sufficient residual functional capacity (“RFC”) “to
11
perform light work,” 36 and so, for the fifth step, based on Curnow’s age, education, work
12
experience and RFC, she found that “there are jobs that exist in significant numbers in the national
13
economy that [Curnow] can perform.” 37 The Appeals Council declined to review the ALJ’s
14
decision, and the Commissioner adopted the decision on March 24, 2011.
15
The ALJ gave several grounds for her determination. She noted that no objective medical
16
17
evidence supported Curnow’s claims regarding the intensity, persistence, or functionally limiting
18
effects of his pain and other symptoms. 38 She found Curnow not to be credible regarding his
19
20
31
Id. at 15.
32
Id. at 15.
33
Id. at 15.
34
Id. at 17.
35
Id. at 18.
36
Id. at 18-19.
37
Id. at 21.
38
Id. at 19.
21
22
23
24
25
26
27
28
5
Case No.: 11-02589 PSG
ORDER
1
subjective statements of the degree of his pain and other symptoms. 39 She pointed to Curnow’s
2
ability to perform household chores and noted that “many of the symptoms existed prior to the
3
accident” and that Curnow “was able to work despite his issues of anxiety and headaches.” 40
4
Although she accorded Dykstra’s physical assessments of Curnow the highest weight
5
6
7
8
9
because he served as Curnow’s primary care physician, the ALJ did not credit Dykstra’s
assessment of Curnow’s cognitive abilities because he is not a psychiatrist, psychologist, or
therapist. 41 She also discounted Chaffee’s assessment because Chaffee had been retained by
Curnow in advance of contesting the denial of disability benefits and her diagnosis conflicted with
United States District Court
For the Northern District of California
10
Herzberg’s assessment. 42 Having discounted Chaffee’s and Dykstra’s reports and Curnow’s
11
testimony about his symptoms, she concluded that the remaining evidence supported a finding that
12
Curnow retained sufficient RFC for light work. 43
13
14
Curnow requests that the court reverse the ALJ’s final decision and remand the case to the
Social Security Administration for an award of benefits. Alternatively, Curnow requests that this
15
16
17
case be remanded for further administrative proceedings to determine whether he is disabled. The
Commissioner in turn asks that the ALJ’s final decision be affirmed.
18
II. LEGAL STANDARDS
19
A. Standard for Reviewing the Commissioner’s Decision
20
21
Pursuant to 42 U.S.C. § 405(g), this court has the authority to review the Commissioner’s
decision denying Curnow benefits. The Commissioner’s decision (here the underlying decision of
22
the ALJ) will be disturbed only if it is not supported by substantial evidence or if it is based upon
23
24
39
Id. at 19.
25
40
Id. at 19.
26
41
Id. at 20.
27
42
Id. at 20.
28
43
Id. at 21.
6
Case No.: 11-02589 PSG
ORDER
1
the application of improper legal standards. 44 In this context, the term “substantial evidence”
2
means “more than a scintilla but less than a preponderance – it is such relevant evidence a
3
reasonable mind might accept as adequate to support the conclusion.” 45 When determining
4
whether substantial evidence exists to support the administrative record as a whole, the court must
5
consider adverse as well as supporting evidence. 46 Where evidence exists to support more than one
6
rational interpretation, the court must defer to the decision of the ALJ. 47
7
B. Standard for Determining Disability
8
Disability claims are evaluated using a five-step, sequential evaluation process. In the first
9
United States District Court
For the Northern District of California
10
step, the Commissioner must determine whether the claimant currently is engaged in substantial
11
gainful activity; if so, the claimant is not disabled and the claim is denied. 48 If the claimant is not
12
currently engaged in substantial gainful activity, the second step requires the Commissioner to
13
determine whether the claimant has a “severe” impairment or combination of impairments that
14
significantly limits the claimant’s ability to do basic work activities; if not, a finding of “not
15
16
disabled” is made and the claim is denied. 49 If the claimant has a “severe” impairment or
17
combination of impairments, the third step requires the Commissioner to determine whether the
18
impairment or combination of impairments meets or equals an impairment in the Listing; if so,
19
disability is conclusively presumed and benefits are awarded. 50 If the claimant’s impairment or
20
21
22
44
See Moncada v. Chater, 6- F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255,
1257 (9th Cir. 1992).
45
See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1257.
46
See Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501(9th Cir. 1989).
47
Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.
48
See id.
49
See id.
50
See id.
23
24
25
26
27
28
7
Case No.: 11-02589 PSG
ORDER
1
combination of impairments does not meet or equal an impairment in the Listing, the fourth step
2
requires the Commissioner to determine whether the claimant has sufficient “residual functional
3
capacity” 51 to perform his or her past work; if so, the claimant is not disabled and the claim is
4
denied. 52 The plaintiff has the burden of proving that he or she is unable to perform past relevant
5
work. 53 If the claimant meets this burden, a prima facie case of disability is established. The
6
7
8
9
Commissioner then bears the burden of establishing that the claimant can perform other substantial
gainful work; 54 the determination of this issue comprises the fifth and final step in the sequential
analysis.
III. DISCUSSION
United States District Court
For the Northern District of California
10
11
12
13
The court must first address the Commissioner’s motion to strike Curnow’s “Supplemental
Reply.” Curnow submitted to the court notice about a “fully favorable” decision on Curnow’s
subsequent application for disability benefits. According to the sur-reply, a different ALJ issued
14
the decision one week after Curnow filed his reply brief with the court, and the new ALJ set his
15
16
17
disability onset date as February 2, 2010 – one day after the first ALJ’s decision. Curnow did not
provide the court with the “fully favorable” decision nor did he provide any declarations or exhibits
18
19
20
21
22
51
23
A claimant’s residual functional capacity (“RFC”) is what he or she can still do despite existing
exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir.
1989).
24
52
See Drouin, 966 F.2d at 1257; Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
25
53
See id.
26
54
27
28
There are two ways for the Commissioner to meet the burden of showing that there is work in
significant numbers in the national economy that claimant can do: (1) by the testimony of a
vocational expert or (2) by reference to the Medical-Vocational Guidelines. See Tackett v. Apfel,
180 F.3d 1094, 1099 (9th Cir. 1999).
8
Case No.: 11-02589 PSG
ORDER
1
2
with the sur-reply. 55 The Commissioner, however, does not dispute that a subsequent favorable
decision was entered. 56
3
Curnow did not request leave from the court to submit this additional information. Local
4
Rule 3.7(d) states that “[o]nce a reply is filed, no additional memoranda, papers or letters may be
5
filed without prior court approval” unless the party is either (1) objecting to new evidence in the
6
reply brief or (2) bringing to the court’s attention a relevant recently published judicial opinion.
7
8
9
Because the notice submitted arguably satisfies the second criterion, the Commissioner’s motion to
strike the sur-reply is DENIED.
The question becomes, however, to what use the court should put Curnow’s notice of a
United States District Court
For the Northern District of California
10
11
favorable decision. Curnow suggests that the propinquity of the disability onset date found by the
12
new ALJ to the date of the first ALJ’s decision “is a specific additional reason to remand this case
13
to Defendant for further proceedings.” 57 At that point “any additional evidence, including the
14
subsequent favorable decision itself (as evidence) would be considered and the final decision
15
16
revised.” 58 The court construes Curnow’s suggestion as a motion to remand under 42 U.S.C. §
17
405(g), sentence six, which permits remand upon a showing “that there is new evidence which is
18
material and that there is good cause for the failure to incorporate such evidence in to the record in
19
a prior proceeding.” 59
20
21
In support of his suggestion, Curnow cites Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010).
In Luna, the claimant and the Commissioner agreed that a subsequent favorable decision by a
22
55
See Docket No. 15.
56
See Docket No. 16.
57
Docket No. 15.
58
Id.
23
24
25
26
59
27
28
Cf. Reichard v. Barnhart, 285 F. Supp. 2d 728, 729-30 (S.D.W.Va. 2003) (construing claimant’s
letters with subsequent favorable decision attached as motion for remand under 42 U.S.C. § 405(g),
sentence six).
9
Case No.: 11-02589 PSG
ORDER
1
different ALJ conflicted with the earlier decision being reviewed by the district court. 60 In light of
2
the contradiction, the Commissioner moved to remand the first, unfavorable decision pursuant to
3
42 U.S.C. § 405(g), sentence six. 61 Finding the new decision to be new and material evidence, the
4
district court granted the remand. 62
5
6
The Ninth Circuit affirmed the district court’s decision. 63 Finding that the record did not
indicate “whether the decisions concerning [the claimant] were reconcilable or inconsistent,” the
7
8
9
court held that there was a “‘reasonable possibility’ that the subsequent grant of benefits was based
on new evidence not considered” by the first ALJ and that “further consideration of the factual
United States District Court
For the Northern District of California
10
issues [was] appropriate to determine whether the outcome of the first application should [have
11
been] different.” 64
12
13
The facts of Luna align with Curnow’s case. As in Luna, Curnow’s subsequent favorable
decision set the disability onset date only one day after the first unfavorable decision, and, as in
14
Luna, the court has an inadequate record before it to determine whether the two decisions are
15
16
reconcilable. In light of the fact that the Commissioner has not denied or disputed Curnow’s claim
17
of a subsequent favorable decision, the court has no choice but to remand the case to the agency for
18
further consideration of the two decisions.
19
IV. CONCLUSION
20
21
The Commissioner’s motion to strike Curnow’s sur-reply is DENIED. In light of the
potentially inconsistent decisions regarding Curnow’s disability status, Curnow’s motion for
22
23
60
623 F.3d at 1034.
61
Id.
62
Id.
63
Id.
64
Id.
24
25
26
27
28
10
Case No.: 11-02589 PSG
ORDER
1
summary judgment is DENIED, the Commissioner’s cross-motion for summary judgment is
2
DENIED, and the case is remanded for further proceedings consistent with this opinion.
3
IT IS SO ORDERED.
4
5
Dated:
6
_________________________________
PAUL S. GREWAL
United States Magistrate Judge
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
Case No.: 11-02589 PSG
ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?