Cole v. Astrue

Filing 15

ORDER granting 13 Defendant's Motion for Summary Judgment; Denying 12 Plaintiff's Motion for Summary Judgment. Signed by Judge Edward J. Davila on 9/3/2013. (ejdlc2, COURT STAFF) (Filed on 9/3/2013)

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UNITED STATES DISTRICT COURT

United States District Court
For the Northern District of California

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RUSSELL C. COLE,

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Plaintiffs,
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v.
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CAROLYN W. COLVIN, Acting
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Commissioner, Social Security Administration, )
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Defendant.
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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
[Re: Docket Nos. 12, 13]

Plaintiff Russell C. Cole brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) to

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obtain review of the Social Security Administration’s final decision finding Plaintiff “not disabled”

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and denying his claim for disability benefits. Plaintiff seeks an order reversing the final decision of

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the Administration and awarding benefits, or alternatively remanding for further administrative

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proceedings. Presently before the Court are the parties’ cross-motions for summary judgment.

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Having considered the parties’ papers and the administrative record, the Court grants Defendant’s

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Motion for Summary Judgment, and denies Plaintiff’s Motion for Summary Judgment.

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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I. BACKGROUND

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a. Procedural History

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On March 17, 2006, Plaintiff filed an application for a period of disability and disability

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insurance benefits, alleging disability beginning January 24, 2005. Administrative Record (“AR”)

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at 172. The claim was denied initially on June 26, 2006, and again upon reconsideration on March

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9, 2007. Id. Thereafter, Plaintiff filed a request for hearing on April 24, 2007. Id. Plaintiff

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appeared and testified at a hearing before Administrative Law Judge (“ALJ”) Thomas J. Gaye on

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June 12, 2008. Id. at 172-78. Plaintiff, represented by attorney Harvey P. Sackett, testified on his

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own behalf. Id. at 172. Judge Gaye also heard testimony from vocational expert (“VE”) Thomas

United States District Court
For the Northern District of California

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Linvill, who testified that Plaintiff would be able to perform the requirements of representative

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occupations such as a security guard and parking lot attendant. Id. at 177. In a written decision

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dated July 25, 2008, Judge Gaye found, after recounting the medical evidence and testimony, that

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Plaintiff was not disabled. Id.

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Subsequently, Plaintiff asked the Appeals Council to review the July 25, 2008 decision. Id.

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at 181. In connection with the request for review, Plaintiff submitted the consultative narrative

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report of Dr. Martin L. Fishman, dated July 14, 2008. Id. The Appeals Council vacated the

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decision and remanded the case for further proceedings in an order dated April 12, 2010. Id. at

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181-82. In its remand order, the Appeals Council directed the ALJ to consider the report of Dr.

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Fishman and resolve issues pertaining to the subject matter of Plaintiff’s residual functional

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capacity (“RFC”). Id.

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On remand, Plaintiff, appeared and testified at a hearing held on December 1, 2010 before

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ALJ Regina L. Sleater. Id. at 34-44. Attorney Betty Herrera, a partner of Mr. Sackett, appeared on

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behalf of Plaintiff. Id. at 128. Also appearing were W. Benton Boone, MD, a medical expert, and

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Darlene T. McQuary, a VE. Id. Judge Sleater asked McQuary whether jobs exist in the national

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economy for an individual with Plaintiff’s age, education, work experience, and RFC. Id. at 43.

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McQuary testified that Plaintiff would be able to perform a number of occupations such as

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usher/ticket taker and agricultural sorting and grading. Id.

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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In a decision dated January 25, 2011, Judge Sleater concluded that Plaintiff was not

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disabled. Id. at 44. Judge Sleater concluded that, based on the testimony of the VE and the record,

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Plaintiff was capable of making a successful adjustment to other work that exists in significant

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numbers in the national economy. Id. Plaintiff’s application for a period of disability and

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disability insurance benefits was denied. Id.

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After the decision was issued, Plaintiff filed another request for review of the ALJ’s

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decision with the Appeals Council. Id. at 27-30. The Appeals Council denied review on July 24,

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2012. Id. at 1. The ALJ’s decision became final, and Plaintiff then commenced this action for

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judicial review.

United States District Court
For the Northern District of California

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b. Plaintiff’s Age and Educational, Vocational, and Medical History

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Plaintiff was born on March 1, 1949. Id. at 175. He was 55 years old on the alleged onset

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date of the disability. Id. He has a high school education plus two years of college. Id. Plaintiff’s

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past work experience consists of 25 years as a division supervisor for public transportation. Id. at

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218. Plaintiff’s longitudinal medical record shows a history of treatment for ocular myasthenia

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since 1982. Id. at 37. Over the years, Plaintiff’s condition was managed with stereoids and

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generally involved partial ptosis of the eye. Id.

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On June 10, 2006, Charles Fracchia, M.D. performed an internal medicine consultative

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evaluation. Id. at 175. Plaintiff’s chief complaint was that he could not lift his left eyelid and his

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vision was limited to his right eye only. Id. He reported that initially his right eyelid closed for

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approximately one year and then opened but in November 2005 his left eyelid closed. Id. Plaintiff

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reported that he started taking prednisone in 1984 and that it helped him for about 22 years. Id. He

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said that he has not been on medication since November 2005. Id. On examination, his left eye

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vision was 20/200 and right eye vision was 20/30. Id. He had obvious lid droop on his left eye

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completely obscuring his pupil. Id. Dr. Fracchia diagnosed left lid droop secondary to myasthenia

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gravis. Id. Dr. Fracchia found that Plaintiff was unlimited in sitting, standing, and walking, could

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lift 50 pounds occasionally and 25 pounds frequently, and had no postural limitations. Id. at 176.

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With regards to visual limitations, Dr. Fracchia found that Plaintiff can only see through his right

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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eye with no vision practically in his left eye and complains that his vision tires very quickly when

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he uses his right eye alone. Id.

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A Disability Determinations Services (“DDS”) physician reviewed Plaintiff’s medical

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records and found that Plaintiff had no exertional limitations and was limited to activities that do

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not require good bilateral vision. Id. However, on reconsideration a DDS physician felt that,

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because Plaintiff has 20/30 vision in his right eye, Plaintiff was unlimited with the only limitation

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of avoiding activities requiring good binocular vision such as commercial flying and commercial

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driving. Id.

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On March 20, 2008, Plaintiff was characterized as having become steroid resistant to the

United States District Court
For the Northern District of California

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benefits of steroid use for this condition. Id. at 37. On April 1, 2008, Plaintiff was examined by an

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ophthalmologist at Kaiser Permanente Medical Center. Id. At the time, Plaintiff’s visual acuity

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was 20/20 in the right eye and 20/20 in the left eye with the eyelid up. Id. Plaintiff was diagnosed

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with having presbyopia and total ptosis of the left eye. Id. Plaintiff’s treatment consisted of

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getting over the counter eyeglasses for each eye to read the computer screen and to otherwise wear

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prescribed glasses. Id. The record documented that Plaintiff’s vision was correctible in the left

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eye. Id. At the time, there was no other documented pathology which affected the left or right eye.

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Id.

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II. LEGAL STANDARD

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a. Standard for Reviewing the ALJ’s Decision

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Pursuant to 42 U.S.C. § 405(g), the Court has authority to review an ALJ decision. The

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Court’s jurisdiction, however, is limited to determining whether the denial of benefits is supported

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by substantial evidence in the administrative record. Id. A district court may only reverse the ALJ

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decision if it is not supported by substantial evidence or if the decision was based on legal error.

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Id.; accord Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). “Substantial evidence” is

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more than a scintilla, but less than a preponderance. Thomas v. Barnhart, 278 F.3d 947, 954 (9th

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Cir. 2002). The standard requires relevant evidence that a “[r]easonable mind might accept as

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adequate to support a conclusion.” Vertigan, 260 F.3d at 1049 (citing Richardson v. Perales, 402

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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U.S. 389, 401 (1971)). To determine whether substantial evidence supports a finding, the

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reviewing court “must review the administrative record as a whole, weighing both the evidence

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that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v.

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Chater, 157 F.3d 715, 720 (9th Cir. 1996). The Court must uphold the ALJ’s conclusion if it is one

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of several rational interpretations of the evidence. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

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2005); see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

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b. Standard for Determining Disability

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The Social Security Act defines disability as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can

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United States District Court
For the Northern District of California

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be expected to result in death or which has lasted or can be expected to last for a continuous period

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of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The impairment must also be so

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severe that a claimant is unable to do her previous work, and cannot “engage in any other kind of

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substantial gainful work which exists in the national economy,” given her age, education, and work

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experience. 42 U.S.C. § 423(d)(2)(A). “The claimant carries the initial burden of proving a

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disability.” Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). If the claimant proves a

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prima facie case of disability, then the Commissioner has the burden of establishing that she can

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perform “a significant number of other jobs in the national economy.” Thomas, 278 F.3d at 955.

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“The Commissioner can meet this burden through the testimony of a vocational expert or by

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reference to the Medical Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Id.

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The ALJ evaluates Social Security disability cases using a five-step evaluation process. 20
C.F.R. §§ 404.1520, 416.920.
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The ALJ must first determine whether the claimant is presently engaged in

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substantially gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not

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disabled; otherwise the evaluation proceeds to step two.

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The ALJ must determine whether the claimant has a severe impairment or

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combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

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disabled; otherwise the evaluation proceeds to step three.

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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3)

The ALJ must determine whether the claimant’s impairment or combination of

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impairments meets or medically equals the requirements of the Listing of Impairments, 20 C.F.R.

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§§ 20 C.F.R. § 404.1520(d), 416.920(d). If so, the claimant is disabled; otherwise the analysis

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proceeds to step four.

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The ALJ must determine the claimant’s residual functional capacity despite

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limitations from the claimant’s impairments. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the

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claimant can still perform work that the individual has done in the past, the claimant is not

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disabled. If he cannot perform the work, the evaluation proceeds to step five. 20 C.F.R. §§

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404.1520(f), 416.920(f).

United States District Court
For the Northern District of California

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5)

In this step, the Commissioner has the burden of demonstrating that the claimant is

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not disabled. Considering a claimant’s age, education, and vocational background, the

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Commissioner must show that the claimant can perform some substantial gainful work in the

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national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g).

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III. DISCUSSION
Plaintiff requests that this Court reverse the ALJ’s final decision and remand the case to the

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Social Security Administration for an award of benefits. See Docket Item No. 12, Pl’s Mot. for

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Summ. J. Alternatively, Plaintiff requests that this case be remanded for further administrative

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proceedings to re-adjudicate the issues. Id. Plaintiff does not challenge the ALJ’s determinations

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at steps one through four of the evaluation process; at issue here is the ALJ’s conclusion at step

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five. Id.

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a. The ALJ Properly Relied on the Vocational Expert’s Testimony in Finding that
Plaintiff Could Perform Alternate Occupations
Substantial evidence in the record supports the ALJ’s conclusion at step five that,

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considering the Plaintiff’s age, education, experience, and RFC, there exist a significant number of

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jobs in the national economy that Plaintiff can perform. The burden of demonstrating that a

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claimant can perform alternate occupations can be met by asking the VE a hypothetical question

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that reflects all of the claimant’s limitations. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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2005). When a VE considering all of the claimant’s restrictions testifies that a claimant could

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perform specific jobs in significant numbers in the economy, the Commissioner has met his

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burden. Id.

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To determine whether Plaintiff was able to perform alternate occupations, the ALJ asked
VE McQuary a series of hypotheticals that encompassed Plaintiff’s limitations. AR at 158-62.

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McQuary testified that someone with Plaintiff’s RFC would be able to perform jobs such as

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agricultural sorting and grading, Dictionary of Occupational Titles (DOT) 529.687-186 and usher,

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DOT 344.677-014. Id. at 160-61. McQuary stated that there were approximately 1,500 local and

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500,000 national agricultural sorting and grading jobs and approximately 10,000 local and 102,330

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United States District Court
For the Northern District of California

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national usher jobs. Id. No explanation was provided as to how she had arrived at these numbers,

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and neither the ALJ nor Plaintiff’s counsel asked McQuary to provide one. Id. at 156-66. Based

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on McQuary’s testimony and the record, the ALJ concluded that, considering the Plaintiff’s age,

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education, work experience, and RFC, the Plaintiff is capable of making a successful adjustment to

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other work that exists in significant numbers in the national economy. Id. at 44.

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Plaintiff objects to the ALJ’s reliance on McQuary’s testimony because, Plaintiff alleges,

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McQuary’s testimony was “equivocal” and “tentative and indefinite.” Pl’s Mot. for Summ. J at 14,

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16. When asked by Plaintiff’s counsel whether Plaintiff would have an issue performing the

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agricultural sorting job because of objects coming from the left, McQuary responded that it was

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“impossible to say” but acknowledged that if the job involved an assembly line “there could be

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instances where something might be coming from the left.” AR at 162. When asked if Plaintiff

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would have an issue performing the usher job because of Plaintiff’s lack of depth perception,

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McQuary responded that “[i]t would depend on the setup . . . [b]ut, if it is a very steep kind of

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seating arrangement, that could be a problem.” Id. at 163.

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Plaintiff fails to mention that, further in the testimony, the ALJ directly questioned

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McQuary as to whether Plaintiff could perform the agricultural sorting and usher jobs. Id. at 165.

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McQuary unequivocably answered in the affirmative. Id. Plaintiff does not dispute the accuracy

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of the hypothetical question the ALJ posed to the vocational expert. Thus, the vocational expert’s

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

testimony in response to the ALJ’s complete hypothetical question, without more, was substantial

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evidence supporting the ALJ’s determination that plaintiff was able to perform work which exists

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in significant numbers in the national economy. See Bayliss, 427 F.3d at 1218 (“A [vocational

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expert's] recognized expertise provides the necessary foundation for his or her testimony. Thus, no

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additional foundation is required.”). Furthermore, Plaintiff’s objection to McQuary’s testimony is

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at most an interpretation of the evidence that differs from the ALJ’s. For this Court to adopt

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Plaintiff’s interpretation and reverse the ALJ’s decision would exceed this Court’s authority.

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Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s

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conclusion that must be upheld. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th

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United States District Court
For the Northern District of California

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Cir. 1999). Therefore, this Court finds that McQuary’s testimony constituted substantial evidence

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for the ALJ’s finding that Plaintiff has the ability to perform alternate occupations.

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b. The New Evidence Submitted to the Appeals Council does not Render the ALJ’s
Decision Unsupported by Substantial Evidence
Following the ALJ’s decision denying benefits, Plaintiff submitted to the Appeals Council a

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consultative vocational report written by Malcolm Brodzinsky. Pl’s Mot. for Summ. J. at 13.

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Brodzinsky’s report asserts that someone with Plaintiff’s RFC would be unable to perform either of

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the jobs identified in McQuary’s testimony. AR at 263. The Appeals Council denied review,

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noting that it had considered the additional evidence submitted by Plaintiff, but that this

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information did not provide a basis for changing the ALJ’s decision. Id. at 1–5. In determining

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whether to grant review, the Appeals Council must consider any new and material evidence

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submitted to it relating “to the period on or before the date of the [ALJ’s] hearing decision.” 20

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C.F.R. § 416.1470(b). When, as here, the Appeals Council does consider the additional evidence

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but denies review, the additional evidence becomes part of the administrative record for purposes

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of this Court’s analysis. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161–63 (9th Cir.

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2012). Thus, this Court must engage in an “overall review” of the ALJ’s decision, including the

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new evidence, to determine whether the decision was “supported by substantial evidence” and was

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“free of legal error.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011).

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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Brodzinsky’s report differs from McQuary’s testimony primarily in two respects. First,

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Brodzinsky asserts that there exist generally fewer agricultural sorting and usher jobs, regionally

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and nationally, than did McQuary’s testimony. AR at 264-68. Second, Brodzinsky asserts that

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both the agricultural sorting and usher jobs, “based upon the physical requirements of the job[s] as

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usually performed,” would not be appropriate for an individual with Plaintiff’s RFC. Id. at 265-67.

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Regarding the agricultural sorting job, Brodzinsky states that there could be problems for Plaintiff

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if the job involved a conveyer belt or if Plaintiff would be faced with objects arriving from the left,

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but Brodzinsky “was unable to obtain actual information on this.” Id. at 267. Regarding the usher

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job, Brodzinsky stated that ushers typically walk in darkened environments and could trip over

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For the Northern District of California

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objects on the left or have difficulty observing customers or employees approaching from the left.

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Id. at 264.

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This Court is not convinced that Brodzinsky’s report renders the ALJ’s decision

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unsupported by substantial evidence. An ALJ may properly rely on a VE’s testimony regarding

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occupational issues. See 20 C.F.R. § 416.966(e) (authorizing ALJs to rely on vocational expert

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testimony to determine occupational issues); Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir.

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2001) (testimony of qualified vocational expert constitutes substantial evidence). Additionally, the

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Ninth Circuit has held that where the ALJ relies on proper evidence in concluding that there are

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jobs in the national economy that a claimant can perform, the Appeals Council is free to reject

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contradictory evidence obtained after an adverse administrative decision. See Gomez v. Chater, 74

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F.3d 967, 972 (9th Cir. 1996) (finding that the Appeals Council appropriately rejected the report of

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claimant’s vocational expert, which stated that no jobs were available that claimant could perform,

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when the ALJ had properly relied on the Medical–Vocational Guidelines to find that such jobs did

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exist).

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Furthermore, Brodzinsky’s report contains little new information that the ALJ did not

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already consider. During cross-examination, McQuary was asked whether the Plaintiff may have

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problems performing the job of agricultural sorter because of objects coming from the left. AR at

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162. McQuary was also questioned as to whether the usher job may be a problem because of

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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Plaintiff’s difficulty with depth perception. Id. at 163. There is no indication that Brodzinsky had

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any better an understanding of Plaintiff’s limitations than did McQuary or that McQuary was less

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qualified than Brodzinsky. In fact, Brodzinsky’s only source of information regarding Plaintiff

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appears to be the 11-page decision of the ALJ. Id. at 263.

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At best, Plaintiff has presented evidence sufficient to support an alternative finding

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regarding the number of relevant jobs available in the economy. That is not enough to warrant

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remand. It is within the Commissioner’s discretion to resolve any conflicts and ambiguities in the

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evidence and the Commissioner’s decision must be upheld where the evidence is susceptible to

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more than one rational interpretation. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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For the Northern District of California

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See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is susceptible to

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more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s

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conclusion must be upheld.”).

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c. The ALJ’s Identification of Additional Occupations Other than those Suggested by
the Vocational Expert does not Constitute Reversible Error

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Plaintiff contends that the ALJ “wrongly acted as her own vocational expert” in identifying

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additional occupations that Plaintiff could perform. Pl’s Mot. for Summ. J. at 16-18. The ALJ, in

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her decision, noted that in addition to the agricultural sorting and usher jobs identified by

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McQuary, Plaintiff could also perform the jobs of scale operator, basket filler, and Mexican food

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maker. AR at 44. The ALJ did not elicit VE testimony in making this finding. Id. However, this

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Court takes no position as to whether the ALJ committed an error in identifying additional

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occupations because, as discussed above, her reliance on McQuary’s testimony alone was

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sufficient evidence for concluding that Plaintiff could perform alternate occupations. Even if the

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ALJ’s identification of additional occupations constituted error, Plaintiff has cited no authority

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authorizing this Court to reverse an ALJ’s decision when the decision is otherwise supported by

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substantial evidence.

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Summary Judgment,

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and GRANTS Defendant’s Motion for Summary Judgment.

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IT IS SO ORDERED

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Dated: September 3, 2013

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_________________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 5:12-CV-04406-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT