Ascarie v. Commissioner of Social Security

Filing 22

ORDER denying 15 Plaintiff's Motion for Summary Judgment; granting 17 Defendant's Motion for Summary Judgment. Signed by Judge Edward J. Davila on 8/13/2014. (ejdlc1S, COURT STAFF) (Filed on 8/13/2014) (Additional attachment(s) added on 8/13/2014: # 1 Certificate of Service) (ecg, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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MAHMOUD ASCARIE
Plaintiff,

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v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security

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Defendant.

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I.

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

[Re: Docket Item Nos. 15, 17]

Introduction

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Plaintiff Mahmoud Ascarie (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) to

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obtain review of the Social Security Administration’s final decision denying his disability benefits.

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See Docket Item No. 15. Defendant Carolyn W. Colvin, Acting Commissioner of the Social

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Security Administration (“Defendant”), opposes Plaintiff’s Motion for Summary Judgment

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(“MSJ”) and seeks summary judgment affirming the decision of the ALJ. See Docket Item No. 17.

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Having considered the relevant pleadings and the administrative record, the Court has

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determined that the administrative law judge’s (“ALJ”) decision should be affirmed. Plaintiff’s

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Motion for Summary Judgment will therefore be denied and Defendant’s cross-motion will be

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granted.

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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II.

Background

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A.

Procedural History

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On September 4, 2009, Plaintiff filed an application for social security benefits, alleging

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disability beginning December 12, 2007. See Administrative Record (“AR”) at 112-13. On March

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23, 2010, Plaintiff’s claim was denied. Id. at 85-88. On April 16, 2010, Plaintiff filed for

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reconsideration. Id. at 90. Plaintiff’s disability claim was denied again on July 1, 2010. Id. at 91-

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95. On July 15, 2010, Plaintiff filed a written request for a hearing. Id. at 101. On June 2, 2011,

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the hearing was held, and Plaintiff and a vocational expert both testified. See id. at 68-82. On June

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28, 2011, ALJ Frederick C. Michaud issued a written decision that Plaintiff was not disabled, and

United States District Court
For the Northern District of California

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had the residual functioning capacity (“RFC”) to perform light work prior to October 1, 2009,

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under sections 216(i) and 223(d) of the Social Security Act. Id. at 30-40.

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Plaintiff sought review of the ALJ’s determination, and review was denied by the Appeals

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Council on June 15, 2012. Id. at 11-16. Therefore, the ALJ’s decision became the final decision of

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the Social Security Administration as to Plaintiff’s case. Id. at 11.

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On August 10, 2012, Plaintiff filed a request for an extension to file a civil action to review

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the ALJ’s decision, which was granted on February 25, 2013. Id. at 1-5. Plaintiff, pro se, filed a

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Complaint against the Defendant on March 25, 2013. See Docket Item No. 1. Plaintiff filed the

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MSJ on October 15, 2013. See Dkt. No. 15. Defendant filed its cross-motion on November 12,

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2013. See Dkt. No. 17. Plaintiff filed an Opposition to Defendant’s cross-motion on June 6, 2014.

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See Docket Item No. 21.

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B.

Plaintiff’s Personal, Vocational, and Medical History

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Plaintiff was born on October 10, 1943. AR at 30. He holds a Ph.D. in Chemistry, and

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previously worked as a chemistry professor. Id. In 2000, the Social Security Administration found

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Plaintiff to be disabled. Id. at 34. However, in 2002 he resumed teaching and his disability

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benefits were terminated in June 2005. Id. In 2009 through 2010, Plaintiff collected

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unemployment insurance. See id. at 70; see also id. at 131-34. To qualify for unemployment

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benefits, Plaintiff stated that he could work. Id. at 71.

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Plaintiff has received social security retirement benefits since September 2009. Id. at 30.

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Receiving social security retirement benefits precludes receipt of disability benefits during the

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same time period. Id.

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i.

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Plaintiff’s testimony as to his condition

Plaintiff claims he is disabled and unable to work due to foot pain, neuropathy, inability to

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stand on his feet, inability to concentrate to monitor students, and lack of patience towards

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students. Id.
On December 3, 2009, Plaintiff submitted a Function Report to the Social Security

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Administration. See id. at 184-91. Plaintiff stated he lives in a house with his family. Id. at 184.

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United States District Court
For the Northern District of California

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He cares for his wife, dog and one chicken. Id. at 185. He stated that he is able to do household

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chores such as cleaning and vacuuming, paying bills and grocery shopping. Id. 186-87. He stated

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he could lift no more than ten pounds, and walk 0.125 miles or climb ten stairs before getting tired.

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Id. at 189. Plaintiff also stated he could not stand for more than five minutes. Id. at 191.

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At the ALJ hearing, Plaintiff testified that he has back problems, and pain in both his feet.

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Id. at 75. He also testified that he had been taking hydrocodone for the pain, primarily at bed time.

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Id. at 75-76.

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ii.

Dr. Massey’s reports

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Plaintiff testified that he has visited Dr. John H. Massey monthly since 2007. See id. at 34;

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see also id. at 238-75. On November 19, 2007, Dr. Massey recommended that Plaintiff undergo an

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EMG exam based on Plaintiff’s complaints of bilateral foot pain. Id. at 273-75. The EMG was

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performed by Dr. Tripeta Sachdev on January 3, 2008, and a report was sent back to Dr. Massey.

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Id. at 265-70. The report stated that the EMG was indicative of mild to moderate mixed sensory

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and motor neuropathy in both lower extremities, bilateral posterior tibial peroneal nerve latency,

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chronic mild to moderate denervation, and lumbosacral radiculopathy in the L5-S1 nerve root. Id.

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at 265.

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On July 18, 2008, Plaintiff told Dr. Massey that he was experiencing increased pain in his

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toes of both feet. Id. at 257. Plaintiff stated his overall functions had remained the same. Id. Dr.

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Massey then diagnosed Plaintiff with lumbosacral disk degeneration and idiosyncratic progressive

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polyneuropathy. Id. at 258.

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On February 24, 2009, Plaintiff stated to Dr. Massey that he was experiencing worsening

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pain in his lower extremities over the past few months. Id. at 249. A physical exam by Dr. Massey

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on Plaintiff revealed normal reflexes in his knees and ankles, no evidence of extensor hallucis

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longus weakness, sensation intact to light touch, and a negative seated straight leg raising test. Id.

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Dr. Massey opined that the findings were consistent with Plaintiff’s previous diagnosis of L5

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radiculopathy. Id.

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On August 20, 2010, Dr. Massey completed a “Physical Residual Functional Capacity

United States District Court
For the Northern District of California

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Questionnaire.” See id. at 321-24. Dr. Massey stated that in his opinion, Plaintiff’s physical

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condition made him incapable of even “low stress” jobs. Id. at 322. He stated that Plaintiff could

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sit for twenty minutes, and stand for fifteen minutes at a time. Id. Dr. Massey further stated that

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Plaintiff could only sit, stand or walk for less than two hours each day. Id. at 323. He further

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stated that Plaintiff could lift and carry ten pounds occasionally. Id. Dr. Massey reported that the

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symptoms and limitations had applied since November 19, 2007. Id. at 324.

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iii.

Dr. Spivey’s report

On January 22, 2010, Dr. Patricia Spivey, PsyD, performed a consultative psychological

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evaluation on Plaintiff. See id. at 225-28. The consultation was scheduled due to Plaintiff’s report

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that he suffered from depression and anxiety. Id. at 225. Dr. Spivey performed a number of

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psychometric tests on Plaintiff. See id. at 226. Plaintiff’s Full Scale IQ test result was 80. Id. Dr.

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Spivey stated that this IQ was significantly lower than would be expected for an individual of his

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education and career. Id. at 227. Dr. Spivey further stated that on several tests Plaintiff appeared

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to be giving a poor effort, and that she suspected malingering. Id. Dr. Spivey stated that Plaintiff’s

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prognosis was very good and he had no disturbance in his normal functioning. Id. at 228.

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iv.

Dr. Chung’s report

On February 5, 2010, Plaintiff underwent a consultative internal medicine evaluation with

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Dr. Jaehoon Chung. See id. at 278-81. After speaking with Plaintiff and performing a physical

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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examination, Dr. Chung stated that in his opinion Plaintiff had no limitations in sitting, lifting or

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carrying. Id. at 81. Dr. Chung further stated that Plaintiff could stand or walk up to two hours a

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day. Id.

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v.

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Dr. Soule’s X-Ray report

On March 5, 2010, Plaintiff underwent an X-ray of his lumbar spine by Dr. William Soule.

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See id. at 284. The X-ray revealed osteophytes at levels L1-L2 and L3-L4, and no disk space

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narrowing. Id. Dr. Soule noted that other than the osteophytes, the X-ray was “unremarkable.” Id.

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vi.

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Dr. Kammen’s report

On March 19, 2010, Dr. P. Kammen reviewed the Plaintiff’s file and completed a Physical

United States District Court
For the Northern District of California

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Residual Functional Capacity Assessment. See id. at 296-300. Dr. Kammen stated he believed

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Plaintiff could occasionally lift fifty pounds and frequently lift twenty-five pounds. Id. at 297. The

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report also stated that Dr. Kammen believed Plaintiff could stand, walk or sit for about six hours a

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day. Id. These statements were consistent with assigning Plaintiff an RFC of “medium.” See Id.

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at 37.

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III.

Legal Standard

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A.

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Section 405(g) of title 42 of the United States Code grants a United States District Court the

Standard of Review

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authority to review an ALJ decision to deny disability benefits. However, the Court’s jurisdiction

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is limited. The Court may only set aside a denial of benefits if the ALJ’s decision is not supported

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by substantial evidence or the decision was based on legal error. 42 U.S.C. § 405(g); Matney v.

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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

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

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Matney, 981 F.2d at 1019 (internal quotations omitted). The relevant evidence must be such “as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

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U.S. 389, 401 (1971). To determine whether the ALJ’s decision is supported by substantial

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evidence, the Court “must review the administrative record as a whole,” weighing the evidence

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which both supports and detracts from the ALJ’s conclusion. Reddick v. Chater, 157 F.3d 715,

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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720 (9th Cir. 1998). When the evidence could support more than one rational interpretation, the

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Court must defer to the ALJ’s decision. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.

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2005).

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B.

Standard for Determining Disability

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To qualify for disability insurance benefits under the Social Security Act, a Plaintiff must

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establish the “inability to engage in any substantial gainful activity by reason of any medically

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

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lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §

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423(d)(1)(A). Further, one can only be determined to be under a disability if “his physical or

United States District Court
For the Northern District of California

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mental impairment or impairments are of such severity that he is not only unable to do his previous

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work but cannot, considering his age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

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Disability is evaluated using a five-step sequential process. 20 C.F.R. § 404.1520(a)(4).

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The initial burden rests with the claimant to prove a prima facie case of disability as to the first four

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steps. See Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). At the fifth step, “the burden

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shifts to the Commissioner to establish that the claimant can perform a significant number of other

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jobs in the national economy.” Id. “If it can be determined that a claimant is disabled or not

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disabled at any point in the review, that finding is made, and the review is ended.” Matney, 981

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F.2d at 1019. The five-step sequential evaluation process is as follows:

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1) Whether the claimant is “doing substantial gainful activity.” If so, the claimant is
deemed not disabled. 20 C.F.R § 404.1520(a)(1)(4)(i), 404.1520(b).
2) Whether the claimant has a severe impairment or combination of impairments. If not,
the claimant is deemed not disabled. Id. § 404.1520(a)(1)(4)(ii), 404.1520(c).
3) Whether the impairment or combination of impairments meets or medically equals the

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requirements of the Listing of Impairments. If so, the claimant is deemed disabled. Id. §

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404.1520(a)(1)(4)(iii), 404.1520(d).

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
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4) Whether the claimant’s RFC, despite his impairments, allows him to still perform his

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past relevant work. If so, the claimant is deemed not disabled. Id. § 404.1520(a)(1)(4)(iv),

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404.1520(e-f).

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5) At the fifth step, the burden shifts to the Commissioner to show that, based on an

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assessment of the claimant’s RFC, age, education and work experience, the claimant can make an

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adjustment to work. If not, the claimant is deemed disabled. Id. § 404.1520(a)(1)(4)(v),

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404.1520(g).

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IV.

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Discussion
The ALJ made the following findings based on the five-step process: At step one, the ALJ

United States District Court
For the Northern District of California

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determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date.

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AR at 32. At step two, the ALJ determined that Plaintiff had severe impairments of peripheral

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neuropathy and lumbar degenerative disc disease. Id. At step three, the ALJ determined that

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Plaintiffs impairments did not meet or medically equal the requirements on the Listing of

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Impairments. Id. at 33.

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The ALJ then evaluated Plaintiff’s RFC. See 20 C.F.R. 404.1520(e). The ALJ found that

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prior to October 1, 2009, Plaintiff had the RFC to perform the full range of light work as defined in

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20 C.F.R § 303.1567(b). AR at 33. The ALJ further found that Plaintiff’s previous relevant work

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as a Chemistry professor required light exertional level. Id. at 39. Thus, the ALJ found that prior

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to October 1, 2009 Plaintiff was not disabled within the meaning of the Social Security Act, and

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thus not qualified to receive disability insurance benefits. Id.

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The ALJ further found that beginning on October 1, 2009, Plaintiff had the RFC to perform

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the full range of sedentary work as defined in 20 C.F.R. § 303.1567(a). Id. at 38. As the Plaintiff’s

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past relevant work required light exertional level, the ALJ found that Plaintiff was not able to

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perform his past relevant work as of October 1, 2009. Id. at 39. The ALJ then determined that

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Plaintiff was qualified as “disabled” as of October 1, 2009. Id. at 40.

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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A.

The ALJ properly assessed Plaintiff’s credibility

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Plaintiff argues that the ALJ’s determination was based solely off of a determination of

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Plaintiff’s credibility, rather than objective analysis of his physical condition. See Dkt. No. 15 at 3.

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In making its determination, the ALJ “granted little probative weight to [Plaintiff’s] testimony.”

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AR at 38. The ALJ stated that Plaintiff’s complaints seemed “exaggerated and/or motivated

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largely by secondary gain factors,” and that there were “numerous contradictions and

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inconsistencies” in Plaintiff’s statements. Id.

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The ALJ noted that in 2009 and 2010, Plaintiff had represented to the California
Employment Development Department that he was able to work in order to receive unemployment

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For the Northern District of California

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benefits. Id.; see also Id. at 131-34 (detailing a record of unemployment payments made to

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Plaintiff). The ALJ noted that such a representation was inconsistent with the disability claim

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requirement that Plaintiff be unable to work. Id. at 71; see also 42 U.S.C § 423(d)(2)(A) (stating

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that disability status requires both that the individual is unable to perform his previous work, and

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unable to “engage in any substantial gainful work which exists in the national economy”).

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The ALJ also gave significant weight to Dr. Spivey’s report, which stated that Plaintiff

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“appeared to be giving a poor effort” on several tests she administered and “malingering was

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suspected.” AR at 227. Thus, the ALJ gave little weight to Plaintiff’s testimony regarding his

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symptomology based on its determination that he lacked credibility. Id. at 38; see also Thomas,

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278 F.3d at 959 (finding that the plaintiff’s “efforts to impede accurate testing of her limitations”

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supported the ALJ’s determination that her own statements regarding her limitations were not

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credible).

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The Court finds that the evidence regarding Plaintiff’s inconsistent representations, coupled

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with Dr. Spivey’s report, were relevant and sufficient to support the ALJ’s determination to give

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little weight to Plaintiff’s testimony based on his lack of credibility. See Thomas, 278 F.3d at 959

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(“If the ALJ’s credibility finding is supported by substantial evidence in the record, [the reviewing

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court] may not engage in second-guessing.”).

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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B.

The ALJ sufficiently considered the EMG results from Dr. Sachdev

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Plaintiff argues that the ALJ did not give sufficient weight to the 2008 EMG report

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submitted to the court by Dr. Tripeta Sachdev. See Dkt. No. 15 at 2. Plaintiff specifically points to

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the ALJ’s statement, “I hate to read the whole thing,” during the hearing. AR at 77. Plaintiff

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understood the statement to mean that the ALJ declined to read the full report. Dkt. No. 15 at 2.

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As a threshold matter, the Court finds that the ALJ’s statement “I hate to read the whole thing,”

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refers to his disinclination to reiterate the full report verbally during the hearing. The Court does

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not find that such a statement necessarily means that the ALJ had not previously or subsequently

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read the full report prior to making its final determination.

United States District Court
For the Northern District of California

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Further, the EMG study reported mild to moderate results. AR at 285. This diagnosis was

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considered by the ALJ and served as a basis for his ultimate determination. See id. at 37. The

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Court finds that the ALJ’s determination that Plaintiff was capable of light exertional level work

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was reasonable in light of the mild to moderate EMG results.

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C.

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Plaintiff argues that the ALJ did not consider that he had previously been deemed disabled

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in 2000 by the Social Security Administration. See Dkt. No. 15 at 2-3. Plaintiff specifically notes

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that by 2010 his condition was worse than in 2000. Id. at 3. Thus, Plaintiff argues that it is

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inconsistent that he was deemed disabled in 2000, but deemed not disabled in 2010. Id.

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The ALJ properly considered Plaintiff’s disability grant in 2000

The ALJ’s decision notes that despite being deemed “disabled” by the Social Security

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Administration in 2000, Plaintiff returned to work in 2002, and his disability benefits were

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terminated in 2005. AR at 34. Inability to work is a requirement for disability qualification. 42

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U.S.C § 423(d)(2)(A). As Plaintiff was able to work between the 2000 determination and his filing

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in 2009, he could not be considered to have been continuously disabled throughout that period.

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Thus, the Court finds the fact that Plaintiff had been granted disability status in 2000 was not

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necessarily determinative as to his status in 2007 through 2009. Therefore, it was not unreasonable

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for the ALJ to have determined that Plaintiff was not disabled prior to October 1, 2009 even though

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he had been deemed disabled in 2000.

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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D.

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The ALJ properly considered the testimony of Vocational Expert Ronald
Morrell

Plaintiff argues that the ALJ did not properly consider the testimony of Vocational Expert

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Ronald Morrell (the “VE”) in reaching its decision. See Dkt. No. 15 at 2. Plaintiff seems to argue

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that the ALJ ignored testimony by the VE that his job required standing and walking. See id.

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(citing to AR at 80). However, at the ALJ hearing, the VE testified that Plaintiff’s past relevant

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work history was consistent with the light level. AR at 39. The VE further testified that both

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professors and practicing chemists are classified at the “light work” level. Id.
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to [ten] pounds . . .
. [A] job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.

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20 C.F.R. § 404.1567(b).

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United States District Court
For the Northern District of California

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The Court finds that the VE’s testimony that Plaintiff’s job required standing and walking is

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not inconsistent with the VE’s classification and the ALJ’s ultimate decision that his job should be

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classified at the light level. Thus, the court does not find that the ALJ failed to properly consider

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the VE’s testimony.

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E.

The ALJ’s decision was supported by substantial evidence

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Plaintiff argues that the ALJ’s decision was not based on a fair analysis of the relevant

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evidence. Dkt. No. 15 at 1-3. The Court may reverse the ALJ’s determination only if its decision

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was not supported by substantial evidence. See 42 U.S.C. § 405(g).

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The ALJ admittedly weighed some evidence more heavily than other evidence. AR at 37.

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The ALJ gave significant weight to Dr. Spivey’s psychological examination in determining that

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Plaintiff lacked credibility. Id. The ALJ also gave stronger weight to objective physical

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examinations of the patient, including the mild to moderate EMG results and insignificant lumbar

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X-ray results. Id. Due to the determination that Plaintiff lacked credibility, the ALJ then gave little

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weight to other medical reports which were based primarily on Plaintiff’s self-reports and which

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contradicted the objective evidence of the physical examinations. Id. (giving little weight to Dr.

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Massey and Dr. Chung’s reports as they were based primarily off of Plaintiff’s complaints rather

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than objective physical findings); see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

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602 (9th Cir. 1999) (“A physician’s opinion of disability premised to a large extent upon the

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claimant’s own accounts of his symptoms and limitations may be disregarded where those

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complaints have been properly discounted.” (internal quotations omitted)). Similarly, the ALJ

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notably gave little weight to Dr. Kammen’s March 19, 2010 physical RFC assessment which

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assigned Plaintiff medium RFC, a higher physical capacity than the ALJ’s ultimate determination.

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See id. at 296-300.

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Based off of the full record, the Court finds that the ALJ’s decision to assign Plaintiff Light

United States District Court
For the Northern District of California

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RFC prior to October 1, 2009 was reasonable and supported by substantial evidence. Further, the

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decision that Plaintiff’s previous relevant work required light exertional level was supported by

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substantial evidence. Thus, the Court finds that the ALJ’s determination that Plaintiff was not

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disabled prior to October 1, 2009 was reasonable and supported by substantial evidence.

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V.

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Conclusion
Based on the foregoing, Plaintiff’s Motion for Summary Judgment (Dkt. No. 15) is

DENIED and Defendant’s Motion for Summary Judgment (Dkt. No. 17) is GRANTED.

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IT IS SO ORDERED

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Dated: August 13, 2014

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_________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:13-CV-01323-EJD
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT