Evans-v-ASTRUE

Filing 26

ORDER by Judge Lucy Koh denying 23 Motion for Summary Judgment; granting 24 Motion for Summary Judgment (lhklc2, COURT STAFF) (Filed on 1/21/2014)

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

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United States District Court

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SAN JOSE DIVISION

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CYNTHIA A. EVANS,
Plaintiff,

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v.

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CAROLYN W. COLVIN, 1 Acting
Commissioner, Social Security Administration,

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Defendant.

Case No. 5:12-CV-06259-LHK
ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S CROSSMOTION FOR SUMMARY JUDGMENT
[Re: ECF Nos. 23, 24]

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Plaintiff Cynthia A. Evans (“Evans”) appeals a final decision of the Commissioner of Social

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Security denying her application for a period of disability and disability insurance benefits under

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Title II of the Social Security Act. Before the Court are the parties’ cross-motions for summary

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judgment, which have been fully briefed. See ECF Nos. 23-25. Upon consideration of the briefing 2

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and for the reasons set forth below, the Court DENIES Evans’s motion and GRANTS the

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Commissioner’s motion.

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Carolyn W. Colvin, the Acting Commissioner of Social Security, is substituted as the defendant in
this action in place of her predecessor, Michael J. Astrue. See Fed. R. Civ. P. 25(d).

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This matter was submitted without oral argument pursuant to Civil Local Rule 16-5.

5:12-CV-06259-LHK
ORDER DENYING PLAINTIFF’S MOTION FOR SJ AND GRANTING DEFENDANT’S MOTION FOR SJ

I. BACKGROUND

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Evans was born in 1951. Admin. R. (“AR”) 105. She completed one year of college in

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order to obtain a certificate in bookkeeping. AR 28. She last worked on August 3, 2008, at which

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time she was an accounts receivable supervisor at a skilled nursing facility. AR 28, 42, 124. She

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had held the accounts receivable supervisor job for approximately thirteen years. AR 124. On

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February 8, 2011, Evans applied for a period of disability and disability insurance benefits, alleging

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that she had become disabled on July 12, 2010, at the age of fifty-eight. AR 105. She asserted

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disability resulting from pain in her legs, feet, hands, elbows, shoulders, and back; dizziness and

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nausea; diabetes; neuropathy; fibromyalgia; poor memory; and short attention span. AR 32-34, 37.

For the Northern District of California

United States District Court

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Evans’s application was denied initially and upon reconsideration. AR 12. An

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Administrative Law Judge (“ALJ”) conducted a hearing on May 10, 2012. Id. The ALJ heard

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testimony from Evans and from a vocational expert. Id. On July 23, 2012, the ALJ issued a written

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decision concluding that Evans was not disabled and thus was not entitled to disability insurance

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benefits. AR 12-21. The Appeals Council denied review, making the ALJ’s decision the final

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decision of the Commissioner. AR 1. Evans now seeks judicial review of the denial of benefits.
II. LEGAL STANDARD

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A.

Standard of Review
This Court has the authority to review the Commissioner’s decision to deny benefits. 42

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U.S.C. § 405(g). The Commissioner’s decision will be disturbed only if it is not supported by

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substantial evidence or if it is based upon the application of improper legal standards. Morgan v.

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Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521,

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523 (9th Cir. 1995). In this context, the term “substantial evidence” means “more than a mere

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scintilla but less than a preponderance – it is such relevant evidence that a reasonable mind might

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accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523; see also Drouin v.

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Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence

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exists to support the Commissioner’s decision, the court examines the administrative record as a

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whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to support more than one rational
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ AND GRANTING DEFENDANT’S MOTION FOR SJ

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interpretation, the court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523;

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Drouin, 966 F.2d at 1258.

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B.

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Standard for Determining Disability
Disability benefits are available under Title II of the Social Security Act when an eligible

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claimant is unable “to engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment . . . which has lasted or can be expected to last for a

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continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

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“ALJs are to apply a five-step sequential review process in determining whether a claimant

For the Northern District of California

qualifies as disabled.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

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United States District Court

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At step one, the ALJ determines whether the claimant is performing “substantial gainful activity.”

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20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled; if not, the analysis proceeds to

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step two. Id. At step two, the ALJ determines whether the claimant suffers from a severe

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impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is

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not disabled; if so, the analysis proceeds to step three. Id. At step three, the ALJ determines

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whether the claimant’s impairment or combination of impairments meets or equals an impairment in

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the Listings. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is disabled; if not, the analysis

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proceeds to step four. Id. At step four, the ALJ determines whether the claimant has the residual

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functional capacity (“RFC”) to do his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If

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so, the claimant is not disabled; if not, the analysis proceeds to step five. Id. At step five, the ALJ

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determines whether the claimant can do other jobs in the national economy. 20 C.F.R. §

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404.1520(a)(4)(v). If so, the claimant is not disabled; if not, the claimant is disabled. Id. “The

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burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step

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five.” Bray, 554 F.3d at 1222.

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III. DISCUSSION

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The ALJ determined that Evans had acquired sufficient quarters of coverage to remain

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insured through December 31, 2013. AR 12. At step one, the ALJ found that Evans had not

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engaged in substantial gainful activity since her alleged onset date of July 12, 2010. AR 14. At step

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two, the ALJ concluded that Evans suffers from a severe combination of impairments consisting of
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ AND GRANTING DEFENDANT’S MOTION FOR SJ

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degenerative lumbar spine, depression, anxiety, degenerative changes of the right knee,

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fibromyalgia, diabetic neuropathy involving sensory deficit, and obesity. Id. At step three, the ALJ

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found that Evans’s impairments do not meet or medically equal an impairment in the Listings. AR

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limitation of only occasional contact with the public. AR 17. At the hearing, the vocational expert

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(“VE”) opined that Evans’s prior work as an accounts receivable supervisor best fit under the

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Dictionary of Occupational Titles (“DOT”) code number 210.382-014, which describes the position

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of “Bookkeeper.” AR 42; see also DOT 210.382-014 (4th Ed. 1991), available at 1991 WL

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For the Northern District of California

At step four, the ALJ determined that Evans has the RFC to perform sedentary work with a

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United States District Court

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671821. 3 The DOT identifies the position of “Bookkeeper” as sedentary, and describes it as

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follows:
Keeps records of financial transactions for establishment, using calculator and
computer: Verifies, allocates, and posts details of business transactions to subsidiary
accounts in journals or computer files from documents, such as sales slips, invoices,
receipts, check stubs, and computer printouts. Summarizes details in separate ledgers
or computer files and transfers data to general ledger, using calculator or computer.
Reconciles and balances accounts. May compile reports to show statistics, such as
cash receipts and expenditures, accounts payable and receivable, profit and loss, and
other items pertinent to operation of business. May calculate employee wages from
plant records or time cards and prepare checks for payment of wages. May prepare
withholding, Social Security, and other tax reports. May compute, type, and mail
monthly statements to customers. May be designated according to kind of records of
financial transactions kept, such as Accounts-Receivable Bookkeeper (clerical), and
Accounts-Payable Bookkeeper (clerical). May complete records to or through trial
balance.

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DOT 210.382-014, available at 1991 WL 671821. The VE testified that 1.6 million bookkeeper

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jobs exist in the national economy, and 30,000 bookkeeper jobs exist in the local economy. AR 43.

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The VE opined that one-third of those jobs require only occasional contact with the public. Id. The

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ALJ relied on the VE’s testimony in concluding that Evans’s past relevant work was as a

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bookkeeper, and that Evans retains the RFC to work as a bookkeeper despite the limitation that she

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The DOT is a publication issued by the United States Department of Labor. U.S. Dep’t Lab.
Website, http://www.oalj.dol.gov/libdot.htm (last visited January 16, 2014). The DOT last was
updated in 1991, and since then it has been replaced by an online database known as the
Occupational Informational Network. Id. However, applicable regulations continue to recognize
the DOT as “reliable job information” that may be used by the Social Security Administration in
determining whether particular jobs exist in significant numbers in the national economy. See 20
C.F.R. § 404.1566(d)(1).
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have only occasional contact with the public. AR 20-21.
Evans does not challenge the ALJ’s determinations at steps one, two, and three, or the ALJ’s

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characterization of her RFC. However, she challenges the ALJ’s conclusion that her past relevant

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work was as a bookkeeper, arguing that her past relevant work more properly is categorized under

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the DOT classification of “Supervisor, Accounts Receivable,” and alternatively, that the DOT does

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not apply in this case.

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A.

Proper DOT Classification

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At the hearing, Evans described her job at the skilled nursing facility as follows:

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I was considered accounts receivable and resident trust manager and part-time
receptionist. . . . for four hours a day I would answer phones, page different people
for calls, meet and greet the public, deal with the residents for their trust item issues.
The billing was farmed out. I would deal with the resident’s families regarding nonpayment, deal with collecting different things from HMO’s [sic], that type of thing.

For the Northern District of California

United States District Court

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AR 30. Evans argues that in characterizing this job as falling within the DOT classification of

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“Bookkeeper,” the VE and ALJ focused solely upon bookkeeping aspects of her job and failed to

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take into account other aspects of the job (e.g., answering telephones, paging people, greeting the

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public, dealing with residents, and dealing with residents’ families).

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Evans contends that her past relevant work more properly is characterized as falling within

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the DOT classification of “Supervisor, Accounts Receivable.” Evans fails to provide a citation for

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this classification. In her motion for summary judgment, she states that the DOT description of

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“Supervisor, Accounts Receivable” is attached to her motion at Exhibit A. See Pl.’s Mot. at 12 n.88,

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ECF No. 23. However, Exhibit A contains only the DOT description of “Bookkeeper.” See Ex. A,

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ECF No. 23-2. In her response to the Commissioner’s cross-motion for summary judgment, Evans

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acknowledges this error, and states that the DOT description of “Supervisor, Accounts Receivable”

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is attached to her response as Exhibit A. See Pl.’s Resp. Br. at 2 n.2, ECF No. 25. However, no

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exhibits are attached to Evans’s response brief. See id.

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DOT 214.137-022 describes the position of “Supervisor, Accounts Receivable”
(alternatively referred to as “Billing Supervisor”) as follows:
Supervises and coordinates activities of workers engaged in tracing sources of error
and correcting billing records for gas, electric-power, and water supply customers,
and in processing records for advance or final billings: Interprets work procedures for
subordinates. Confers with subordinates to resolve procedural problems in tracing
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ AND GRANTING DEFENDANT’S MOTION FOR SJ

sources of error. Reviews and corrects customer accounts to determine amounts over
or under paid as result of irregular connection (meter tampering) investigations.
Prepares corrected bills to reconcile errors in meter readings, using calculator.
Traces source and corrects customer accounts for errors in billing rates, misapplied
credits, or identifying information, such as name and address received from
customer. Confers with employees of other departments to trace payments on bills
under investigation by collection department and to give information pertaining to
accuracy of charges on customer’s bills. Performs other duties described under
SUPERVISOR (clerical) Master Title.

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DOT 214.137-022 (4th Ed. 1991), available at 1991 WL 671867. While this description’s

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references to billing records of gas, electric-power, and water supply customers do not appear to fit

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Evans’s past relevant work in a skilled nursing facility, the Court has been unable to locate any

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other DOT position identified as “Supervisor, Accounts Receivable.” Moreover, Evans quotes from

For the Northern District of California

United States District Court

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this description verbatim in arguing that the duties of “Supervisor, Accounts Receivable,” fit her

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past relevant work more closely than the duties of “Bookkeeper.” See Pl’s Mot. at 12, ECF No. 23.

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In light of Evans’s failure to provide a reference for the “Supervisor, Accounts Receivable”

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position that she contends most properly describes her past relevant work, and the obvious

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inapplicability of the only DOT position that the Court could locate with this title (describing

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supervision of billing records for gas, electric-power, and water supply customers), the Court

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concludes that Evans has failed to demonstrate that the ALJ erred in concluding that her past

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relevant work was as a bookkeeper. Even if application of the “Supervisor, Accounts Receivable”

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tittle were at all plausible, application of the “Bookkeeper” title is at least equally plausible given

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the testimony of the VE. Where evidence exists to support more than one rational interpretation, the

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court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523.

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B.

Application of the DOT

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Evans makes the alternative argument that her past relevant work has significant elements of

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two or more occupations, and thus that the DOT does not apply in this case. She relies heavily upon

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the Ninth Circuit’s decision in Valencia v. Heckler, 751 F.2d 1082 (9th Cir. 1985). In Valencia, the

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claimant had past relevant work as a kitchen helper in nursing homes and as an agricultural laborer.

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Id. at 1086. As a kitchen helper, Valencia had cooked and prepared food, washed dishes, and

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carried food trays, which tasks frequently involved the lifting and carrying of heavy industrial-size

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kitchenware. Id. As an agricultural laborer, Valencia had hoed and harvested tomatoes, harvested
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ AND GRANTING DEFENDANT’S MOTION FOR SJ

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cherries, and sorted tomatoes. Id. The ALJ classified this past relevant work as “medium,” and

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concluded that Valencia was not disabled because she retained the RFC to do medium work. Id. at

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1085-86. Valencia argued to the Appeals Council that the ALJ had erred in concluding that she

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retained the RFC to do medium work. Id. at 1085. The Appeals Council did not address that issue

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when it denied her request for review; instead, the Appeals Council concluded that Valencia had

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past relevant work that could be categorized as light work, and thus that she could perform her past

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relevant work even if she was limited to light work rather than medium work. Id.

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In reversing this decision, the Ninth Circuit surmised that “the unexpressed finding of the

For the Northern District of California

Appeals Council was that tomato sorting, one of the many tasks Valencia performed during her

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United States District Court

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employment as a farm worker, constituted the past relevant work . . . [and that] tomato sorting

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should be classified as ‘light’ work.” Id. at 1086. The Ninth Circuit found this reasoning to

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constitute legal error, holding that, “Every occupation consists of a myriad of tasks, each involving

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different degrees of physical exertion. To classify an applicant’s ‘past relevant work’ according to

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the least demanding function of the claimant’s past occupations is contrary to the letter and spirit of

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the Social Security Act.” Id. The court concluded that when Valencia’s past relevant work was

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considered as a whole, both the position of kitchen helper and the position of agricultural laborer

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properly were classified as medium work. Id. at 1087.

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Evans argues that, like the Appeals Council in Valencia, the ALJ in the present case

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improperly focused on only one aspect of her past relevant work and ignored other aspects that

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would alter the analysis. Valencia is factually distinguishable from the present case. Unlike the

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Appeals Council in Valencia, the ALJ did not simply seize upon the least demanding function of

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Evans’s past relevant work. To the contrary, the ALJ relied upon the testimony of a VE, who

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concluded that Evans’s past relevant work most properly was classified as “Bookkeeper” under the

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DOT. When Evans’s attorney questioned the VE as to why he thought bookkeeper was the

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appropriate classification, the VE testified that he had considered medical billing as an alternative

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classification, but that he thought the bookkeeper classification better captured the aspects of

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Evans’s past relevant work that involved interacting with others. AR 45. An ALJ is permitted to

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rely upon the testimony of a VE. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
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5:12-CV-06259-LHK
ORDER DENYING PLAINTIFF’S MOTION FOR SJ AND GRANTING DEFENDANT’S MOTION FOR SJ

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Absent a showing that the ALJ should have questioned the VE’s testimony in this case, the Court

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concludes that the ALJ was entitled to rely upon that testimony and that the testimony constitutes

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substantial evidence sufficient to support the ALJ’s decision. 4
IV. ORDER

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For the foregoing reasons, IT IS ORDERED THAT:

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1.

Plaintiff’s motion for summary judgment is DENIED;

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2.

Defendant’s motion for summary judgment is GRANTED; and

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3.

The Clerk shall close the file.

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For the Northern District of California

United States District Court

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Dated: January 21, 2014

__________________________________
LUCY H. KOH

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UNITED STATES DISTRICT JUDGE

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To the extent that Evans contends that she lacks the RFC to perform all the duties of the particular
job that she held at the skilled nursing facility (e.g., duties involving significant interaction with the
public), “a vocational expert or specialist may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations imposed by
the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either
as the claimant actually performed it or as generally performed in the national economy.” 20 C.F.R
§ 404.1560(b)(2) (emphasis added).
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ORDER DENYING PLAINTIFF’S MOTION FOR SJ AND GRANTING DEFENDANT’S MOTION FOR SJ