Rubin v. Astrue

Filing 23

ORDER granting 21 Motion for Summary Judgment; denying 18 Motion for Summary Judgment. Signed by Judge Edward J. Davila on 11/25/2013. (ejdlc5, COURT STAFF) (Filed on 11/25/2013) Modified on 11/25/2013 (ejdlc1, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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DONNA L. RUBIN,
Plaintiff,

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

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Defendant.

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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT; DENYING P’S
MOTION FOR SJ

[Re: Docket No. 21]

Plaintiff Donna Rubin (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 405(g) to

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obtain review of the decision of the Commissioner of Social Security (“Commissioner”) denying

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Plaintiff’s application for Social Security Disability benefits. Plaintiff’s Motion for Summary

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Judgment seeks an order reversing the Commissioner’s final decision denying benefits, and remand

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the matter for immediate payment, or in the alternative, a remand for further administrative

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proceedings.

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Presently before the Court are Plaintiff’s and Defendant’s cross-motions for summary

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judgment. Having considered the parties’ submissions and the administrative record, the Court

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GRANTS Defendant’s Motion for Summary Judgment, and DENIES Plaintiff’s Motion for

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Summary Judgment.

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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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I.

Background

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a. Procedural History

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On January 5, 2007, Plaintiff filed for Social Security Disability Insurance Benefits

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under Title II of the Social Security Act. Administrative Transcript (“Tr.”) at 173-180. Plaintiff’s

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claim was initially denied by the Social Security Administration on April 30, 2007 because the

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condition was deemed not disabling on any date through December 31, 2003. Tr. at 112-116.

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Plaintiff’s request for reconsideration was granted and the Social Security Administration again

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denied her claim on August 20, 2007. Tr. at 119-123.

United States District Court
For the Northern District of California

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Plaintiff subsequently requested a hearing before an Administrative Law Judge

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(“ALJ”), which occurred before ALJ Brenton Rogozen on December 16, 2008. Following the

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hearing, the ALJ rendered an unfavorable decision on February 13, 2009. Tr. at 102-107. Upon

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Plaintiff’s March 2009 request, the Appeals Council reversed and remanded the case back to the

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ALJ noting that Plaintiff’s past relevant work did not appear to fit within the parameter of

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Plaintiff’s residual functional capacity. Tr. at 164-165, 110-111. The ALJ was instructed to obtain

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additional evidence from a vocational expert regarding Plaintiff’s ability to perform her past

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relevant work and what skills, if any, did she acquire that are transferable with very little

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adjustment to other occupations. Tr. at 110-111. In a written decision dated July 25, 2011, Judge

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Rogozen ultimately found that Plaintiff has the residual functional capacity to perform at the full

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sedentary level and rendered an unfavorable decision. Tr. at 10-17.

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Plaintiff then sought review of the ALJ’s determination. Tr. at 1-6. On September 4,

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2012, the Appeals Council denied the request for review, and the ALJ’s decision became the final

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decision of the Administration. Id.

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Plaintiff filed the instant action requesting judicial review of the Administration’s

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decision on Jan 22, 2013. See Compl., Docket Item No. 1. Plaintiff moved for summary judgment

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on July 23, 2013. See Docket Item No.18. Defendant filed its cross-motion for summary judgment

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on July 26, 2013. See Docket Item No.21.

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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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b. Plaintiff’s Personal, Vocational and Medical History

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Plaintiff was born on March 28, 1947. Tr. at 269. She received her GED in 1964 and

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began working for National Semiconductor as a Technical Support Specialist in 1985. Tr. at 198-

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206. She was promoted to Senior Program Manager in 1991. Tr. at 197-198. In Plaintiff’s first

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hearing, she testified that her typical day as a Senior Program Manager consisted of lots of

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meetings, five to six hours a day sitting at a computer, and the rest of her time walking back and

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forth between buildings. Tr. at 56.

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United States District Court
For the Northern District of California

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Plaintiff was 50 years old at the time she experienced a bilateral knee injury from a
bicycle accident in 1997 and 51 years old at the onset of the alleged disability. Tr. at 196-205. In

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addition to chronic pain in both knees, Plaintiff claims to suffer from Spondylolisthesis,

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degenerative bone disease, Stenosis of the spine and Tenosynovitis which has rendered her

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incapable of sitting, standing or walking for long periods of time. Tr. at 196. She underwent

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surgery on her right knee in April 1998 and returned to work part-time shortly thereafter. Tr. at 57;

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75. Plaintiff testified in her 2008 hearing that her doctor told her total knee replacement surgery

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would be necessary in the future but that she should wait as long as possible because new knees do

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not typically last very long. Tr. at 58.

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Plaintiff returned to National Semiconductor part-time shortly after the surgery, but

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found it difficult to walk between locations, sit for long lengths of time, keep her legs elevated

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while iced, and sometimes would fall due to her knee giving out completely. Tr. at 76. Her right

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leg was constantly swelling after one hour or more of sitting. Tr. at 77. Plaintiff testified at her

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2011 hearing that her orthopaedic surgeon, Dr. Littlejohn, told her to ice and elevate her right knee

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in order to reduce the swelling. Tr. at 77. She also attempted to adjust her schedule and

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implement more teleconferencing to minimize the swelling and pain. Id.

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Plaintiff stopped working permanently in May 1998 after being laid off from her

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company. Tr. at 77. Plaintiff did not look for new work because she felt she could not get her legs

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“under control” due to the swelling, the pain and her inability to sit longer than one hour. Tr. at 76-

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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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77. Plaintiff further testified that both Dr. Littlejohn and Dr. Holmes stated she would “definitely”

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need knee replacements, which she ultimately had in 2007. Tr. at 79-80.

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II.

Legal Standard

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a. Standard for Reviewing the ALJ’s Decision

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The Court has authority to review an ALJ’s decision denying disability benefits. 42
U.S.C. § 405(g). The Social Security Act states that, upon review of the Secretary's decision by the

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district court, “[t]he findings of the Secretary as to any fact, if supported by substantial evidence,

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shall be conclusive...” Id. Accordingly, the Court’s jurisdiction is limited to determining whether

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United States District Court
For the Northern District of California

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the denial of benefits is supported by substantial evidence in the administrative record. Reversal of

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an ALJ’s decision is only appropriate where it is not supported by substantial evidence or the

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decision is based on legal error. Id.; accord Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir.

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2001).

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“Substantial evidence” is more than a scintilla, but less than a preponderance. Thomas

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v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The inquiry here is whether the record, read as a

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whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached

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by the ALJ. Richardson v. Perales, 402 U.S. 381, 401 (1971); Sample v. Schweiker, 694 F.2d 639,

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642 (9th Cir. 1982). Where evidence is susceptible of more than one rational interpretation, it is the

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ALJ's conclusion which must be upheld, Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); and

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in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence.

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Beane v. Richardson, 457 F.2d 758 (9th Cir. 1972).

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b. Standard for Determining Disability

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Disability is the “inability to engage in any substantive gainful activity by reason of any

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medically determinable physical or mental impairment which can be expected to result in death or

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which has lasted or can be expected to last for a continuous period of not less than twelve months.”

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42 U.S.C. § 423(d)(1)(A). The impairment must be so severe that a claimant is unable to do her

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previous work, and cannot “engage in any other kind of substantial gainful work which exists in

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the national economy,” given the claimant’s age, education, and work experience. 42 U.S.C. §
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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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423(d)(2)(A). “The claimant carries the initial burden of proving a disability.” Ukolov v.

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Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). The burden of proof is on the claimant as to steps

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one to four. As to step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d

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1094, 1098 (9th Cir. 1999). If a claimant is found to be “disabled” or “not disabled” at any step in

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the sequence, there is no need to consider subsequent steps. Id. If the claimant proves a prima

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facie case of disability, the burden shifts to the Commissioner to establish that the claimant 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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United States District Court
For the Northern District of California

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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 claims using a five-step process. 20
C.F.R. §§ 404.1520, 416.920.
1) 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

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claimant is not disabled; otherwise the evaluation proceeds to step two.

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2) 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

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claimant is not disabled; otherwise the evaluation proceeds to step three.

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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

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

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otherwise, the analysis proceeds to step four.

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4) 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).

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If the claimant can still perform work that the individual has done in the past, the

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claimant is not disabled. If she cannot perform the work, the evaluation proceeds to

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step five. 20 C.F.R. §§ 404.1520(f), 416.920(f).

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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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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,

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

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

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III.

Discussion
The ALJ made the following findings and conclusions on the five steps: (1) for step

one, the ALJ determined that the Plaintiff had not engaged in substantial gainful activity since

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Plaintiff’s alleged onset date of January 1, 1999, through her date last insured, December 31, 2003;

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United States District Court
For the Northern District of California

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(2) for step two, the ALJ determined Plaintiff has “severe” medical impairments; (3) for step three,

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the ALJ determined that Plaintiff did not have an impairment that met or medically equaled a list

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impairment; (4) for step four, the ALJ determined Plaintiff’s medical impairments did not preclude

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her from performing her past relevant work as it generally is performed. The ALJ did not proceed

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to step five following the determination Plaintiff’s medical impairments did not preclude her from

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performing her past relevant work.

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Plaintiff requests that the Court reverse the ALJ’s final decision and remand the case to

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the Social Security Administration for an award of benefits. See Pl.’s MSJ. Alternatively, Plaintiff

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requests that this case be remanded for further administrative proceedings to re-adjudicate the

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issues. Id. Plaintiff supports these requests with the following contentions: (1) the ALJ’s

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reasoning affording “little weight” to the consultative examination report of Clark E. Gable, M.D.,

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as opposed to non-examining State Agency internal evaluators was flawed; (2) the ALJ’s finding

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that Plaintiff’s testimony regarding her inability to sit 6 hours a day was exaggerated is erroneous;

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(3) the ALJ’s rationale for rejecting the credibility of Plaintiff’s testimony that she was only taking

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“Aleve” is not factually sustainable; and (4) the Commissioner wrongly denied Plaintiff’s claim at

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step four and therefore failed to meet its burden at step five.

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a. Evidence Supporting the ALJ’s Rejection of the Opinion of Dr. Gable

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Plaintiff argues that the ALJ’s reasoning for affording “little weight” to the consultative

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examination report of Dr. Clark E. Gable and “significant weight” to the medical opinions of state
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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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agency consultants Sadda Reddy, M.D. and Roger Fast, M.D. was flawed. Pl.’s MSJ at 16.

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Plaintiff contends that the ALJ did not provide specific and legitimate reasons and erred by not

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giving the examining physician’s opinion proper deference. Pl.’s MSJ at 16-18.

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In the context of Social Security determinations, the weight prescribed to medical
opinions depends in part on whether they are offered by treating, examining, or non-examining

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professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The Commissioner must provide

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“clear and convincing” reasons for rejecting the uncontradicted opinion of an examining physician.

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Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). The opinion of an examining doctor, even if

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United States District Court
For the Northern District of California

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contradicted by another doctor, can only be rejected for specific and legitimate reasons that are

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supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.

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1995). An ALJ can reject a treating physician’s opinion in favor of other conflicting medical

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opinions so long as the ALJ makes “findings setting forth specific, legitimate reasons for doing so

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that are based on substantial evidence in the record.” Thomas, 278 F.3d at 956-957. A non-

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treating or non-examining physician’s opinion may serve as substantial evidence when those

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opinions are consistent with independent clinical findings or other evidence in the record. Id.

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The ALJ properly assigned “little weight” to Dr. Gable’s medical opinion and

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“significant weight” to the consultative examination reports of Dr. Reddy and Dr. Fast because the

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ALJ provided specific and legitimate reasons supported by substantial evidence. First, the ALJ

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explained that Dr. Gable’s opinion regarding Plaintiff’s ability or inability to sit for 6 or more

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hours was not retrospective to any time prior to December 31, 2003, the date Plaintiff was last

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insured. Tr. at 374-377. Dr. Gable only notes that he thinks “the claimant can probably sit

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cumulatively 2-4 hours a day” and that claimant’s “standing and/or walking would be very

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limited.” Tr. at 377. His assessment is in the present tense and is deficient of any medical opinion

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as to Plaintiff’s ability to sit for more than 6 hours between January 1999 and December 2003.

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Second, the ALJ found it significant that Dr. Gable only examined Plaintiff one time and more than

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three years after the date Plaintiff was last insured. Tr. at 15. Finally, the ALJ discounted Dr.

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Gable’s opinion because he was an internist and not an orthopedist with a specialty in
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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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musculoskeletal problems. Id. The Court finds the ALJ provided clear and convincing reasons to

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discount Dr. Gable’s opinion.

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The ALJ instead gave “significant weight” to the two state consultants who
independently reviewed the Plaintiff’s record and found insufficient evidence between January

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1999, and December 2003, to assess the claimant’s residual functional capacity. Id. Objective

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medical evidence in the record is consistent with the two state consultants’ opinions and therefore

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serves as substantial evidence. Id.; See also Thomas at 956-957. A 1999 examination of

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Plaintiff’s left knee showed normal range of motion, a negative Lachman and anterior drawer sign,

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United States District Court
For the Northern District of California

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a negative pivot shift, and no effusion. Tr. at 276. The progress report of Dr. Holmes noted

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Plaintiff was “healing nicely” from her knee surgery, that Plaintiff could attend physical therapy,

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and that she could manage periodic flare ups of knee pain with medication. Tr. at 388. As such,

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the Court finds that the weight prescribed to the medical opinions was proper.

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b. Evidence Supporting the ALJ’s Evaluation of Plaintiff’s Statements

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An ALJ is required to make specific credibility findings which “make clear to the

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individual and to any subsequent reviewers the weight the adjudicator gave the individual’s

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statements and the reasons for that weight.” Social Security Ruling 96-7, 1996 SSR LEXIS 4. In

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making the credibility analysis, “the adjudicator must consider the entire case record, including the

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objective medical evidence, the individual’s own statements about symptoms, statements and other

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information provided by treating or examining physicians or psychologists and other persons about

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the symptoms and how they affect the individual, and any other relevant evidence in the case

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record.” Id.

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The Court’s review of the ALJ’s decision regarding credibility determinations is

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limited. See Matney, 981 F.2d at 1019 (“The trier of fact and not the reviewing court must resolve

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conflicts in the evidence, and if the evidence can support either outcome, the court may not

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substitute its judgment for that of the ALJ.”). The ALJ’s assessment of a claimant’s credibility

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must be “properly supported by the record” and “sufficiently specific” to assure the reviewing

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court that the ALJ “rejected the claimant’s testimony on permissible grounds and did not arbitrarily
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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discredit a claimant’s testimony regarding pain.” Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th

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Cir. 1995) (quoting Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1213-1214 (11th Cir. 1991)

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(quotations omitted). Absent affirmative evidence of malingering, an ALJ may not discount a

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claimant’s testimony without clear and convincing reasons. See Reddick v. Chater, 157 F.3d 715,

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722 (9th Cir. 1998). However, a court must give deference to the ALJ’s assessment of a plaintiff’s

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credibility if it is supported by the record and applicable legal standards. See Rollins v. Massanari,

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261 F.3d 853, 857 (9th Cir. 2001) (citing Reddick, 157 F.3d at 720).

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The ALJ’s conclusion at step four that Plaintiff had residual functional capacity

United States District Court
For the Northern District of California

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(“RFC”) to perform at the sedentary level prior to December 31, 2003 was supported by substantial

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evidence. To make that finding, the ALJ engaged in a two-step process. First, the ALJ determined

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that Plaintiff’s medically determinable impairments could reasonably be expected to cause some of

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the alleged symptoms. Tr. at 15. Second, the ALJ found Plaintiff’s subjective description of her

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symptoms concerning the intensity, persistence and limiting effects of these symptoms to be less

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than entirely credible to the extent that they were inconsistent with the claimant’s residual

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functional capacity assessment. Id.

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The ALJ’s first conclusion is supported by substantial evidence in the record. Plaintiff

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testified in both her 2008 and 2011 hearings that she experienced constant swelling and pain in

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both her knees. Tr. at 58; 79. She found it difficult to work at her computer because she had to

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constantly keep her legs elevated and iced. Tr. at 76; 83. Plaintiff further alleged that she found it

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difficult to walk between locations at work, sit for longer than one hour, and would “fall on her

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face” sometimes when her knees would give out. Tr. at 76-77. Evidence in the record of

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Plaintiff’s numerous surgeries, including total knee replacement in 2007, supports the conclusion

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that her knee condition could reasonably be expected to cause the aforementioned symptoms.

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The ALJ’s second conclusion that the intensity, persistence, and limiting effects of the

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Plaintiff’s symptoms are “not entirely credible” was properly supported by the record and

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sufficiently specific to allow the Court to conclude the ALJ rejected the Plaintiff’s testimony on

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permissible grounds. See Elam at 1215. The ALJ in making his determination analyzed the entire
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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medical record pursuant to Social Security Ruling 88-13 (“SSR 88-13”). SSR 88-13 prescribes

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factors that an ALJ must consider when making a credibility finding, including claimant’s daily

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activities, functional restrictions, and type of pain medication. The ALJ found “little evidence”

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that the claimant could not work at the sedentary level prior to December 31, 2003. Tr. at 15. No

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examining or treating physician throughout the entire record opined that Plaintiff could not sit for

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six hours of an eight-hour workday. Plaintiff stated in her “Exertional Daily Activities

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Questionnaire” that she still could walk about a block, climb 16 stairs, carry light groceries, do

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some household chores, drive a car, and do light yard work. Tr. at 234-236. An ALJ may consider

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United States District Court
For the Northern District of California

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whether the claimant “engages in daily activities inconsistent with the alleged symptoms.” Molina

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v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). Furthermore, the ALJ noted that Plaintiff was only

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taking over-the-counter pain medication and other evidence in the record indicated Plaintiff was

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“healing nicely.” Tr. at 16; 388. From this, and other evidence in the record, the ALJ concluded

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that Plaintiff’s daily activities and type of pain medication were inconsistent with an inability to sit

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at least six hours in an eight hour day. The Court defers to the ALJ’s assessment of Plaintiff’s

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credibility because it is properly supported by the record and sufficiently specific to assure it was

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not capriciously discredited.
c. Plaintiff Failed to Meet Her Burden Establishing a Prima Facie Case of
Disability

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The Court rejects Plaintiff’s argument that the Commission did not meet its burden at

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step five to show alternate occupations Plaintiff could perform in the national economy. The

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burden of showing that the claimant can do other sorts of jobs available in the national economy

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only shifts to the Commission after the applicant makes a prima facie case that he or she is unable

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to work at their usual occupation. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). The

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Court finds substantial evidence in the record supports the ALJ’s step-four finding that Plaintiff

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could do her past relevant work. Therefore, the Commission did not need to proceed to step five.

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See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b)(1)-(3).

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Case No.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ

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IV.

Conclusion
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Summary

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Judgment, and GRANTS Defendant’s Motion for Summary Judgment.

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IT IS SO ORDERED

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Dated: November 25, 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.: 5:13-CV-00297-EJD
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING
P’S MOTION FOR SJ