Foster v. Commissioner of Social Security et al

Filing 29

ORDER AFFIRMING SOCIAL SECURITY DECISION DENYING DISABILITY INSURANCE BENEFITS re 28 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/13/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Kahiliaulani Foster shall be served by first class mail at the address of record on May 14, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KAHILIAULANI FOSTER,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social
)
Security,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 14-00163 SOM/KSC
ORDER AFFIRMING SOCIAL
SECURITY DECISION DENYING
DISABILITY INSURANCE BENEFITS

ORDER AFFIRMING SOCIAL SECURITY DECISION
DENYING DISABILITY INSURANCE BENEFITS
I.

INTRODUCTION.
Plaintiff Kahiliaulani Foster appeals an order by an

Administrative Law Judge (“ALJ”) denying Social Security
disability insurance benefits.

However, Foster fails to

demonstrate that the denial of benefits was based on legal error
or was not supported by substantial evidence.

The court is

sympathetic to Foster, who appears to have many ailments, but
given the standard under which this court must review the ALJ’s
order, this court affirms the order.
II.

STANDARD.
A district court may reverse an ALJ’s Social Security

disability benefits determination only when it is “based on legal
error or is not supported by substantial evidence.”

Ryan v.

Comm’r of Social Security, 528 F.3d 1194, 1198 (9th Cir. 2008);
Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005).

“‘Substantial evidence’ means more than a mere scintilla, but
less than a preponderance.”

Valintine v. Comm’r Social Security

Admin., 574 F.3d 685, 690 (9th Cir. 2009).

“Substantial evidence

means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion, and even when the evidence is
susceptible to more than one rational interpretation, [a district
court] must uphold the ALJ’s findings if they are supported by
inferences reasonably drawn from the record.”

Ludwig v. Astrue,

681 F.3d 1047, 1051 (9th Cir. 2012) (quotation marks,
alterations, and citations omitted).
In determining whether a decision is supported by
substantial evidence, a district judge must consider the
administrative record as a whole.

When the evidence reasonably

supports either affirmance or reversal, the district judge may
not substitute his or her judgment for the ALJ’s.
Astrue, 481 F.2d 742, 746 (9th Cir. 2007).

See Parra v.

In other words, a

district court judge must apply a “highly deferential standard of
review.”

Valintine, 574 F.3d at 690.

III.

BACKGROUND FACTS.
On or about December 30, 2010, Foster submitted an

application for Social Security disability insurance benefits,
claiming to have been disabled since February 26, 2010.
Administrative Record (“AR”) at 148.

2

See

On June 29, 2011, a Social Security disability examiner
determined that Foster was not disabled.

See AR at 64.

Foster

was sent a Notice of Disapproved Claim the following day that
informed her that she did not qualify for benefits because she
was not disabled under Social Security rules.

See id. at 67-70.

The Notice stated that Foster’s condition was not severe enough
to keep her from working.

Id. at 67.

Foster had claimed that

she was unable to work because of a heart murmur; asthma; a heel
spur; back, hip, and tailbone problems; and migraines and
headaches.

Id.

The Notice stated that the medical evidence

indicated that, given her claimed conditions, Foster should still
be able to perform her past security guard work.

Id.

The Notice

said, “If your condition gets worse and keeps you from working,
write, call or visit any Social Security office about filing
another application.”

Id.

On or about July 19, 2011, Foster requested
reconsideration of the initial denial of Social Security
disability insurance benefits.
was denied on November 1, 2011.

See AR at 71.
See id. at 65.

Reconsideration
Foster was sent

a Notice of Reconsideration that told her that her claim had been
“independently reviewed by a physician and disability examiner.”
Id. at 72.
considered.

Additional medical evidence from October 2011 was
Id.

The Notice of Reconsideration stated, “We

realize that you may have some limitations because of your

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condition.

However, the medical evidence shows that your

condition should not interfere with your ability to perform the
type of work you did in the past.”

Id.

On or about January 17, 2012, Foster requested a
hearing by an ALJ.

See AR at 75-77.

A video hearing was held on November 5, 2012, before
ALJ Gary J. Lee.

See AR at 29-62 (transcript of hearing).

Foster was represented by counsel at the hearing.

See id. at 29.

The hearing began with Foster’s testimony that she had
done stocking and delivery work for an auto parts store.
at 33-34.

See AR

She then worked as a security guard at the Makaha

Surfside full-time for several months until she was fired in
February 2010.

Id. at 34-35.

Foster testified that she looked

for work for a year, but stopped looking when she started getting
sicker and instead went to Remington College to study to become a
medical assistant, completing the program in July 2012, four
months before the hearing.

Id. at 38.

Foster testified that she had problems with her back
and that she had arthritis in both knees, heel spurs in both
feet, migraine headaches at least twice a week, asthma, hand
tremors, “restless syndrome,” depression, and anxiety.

She said

that these conditions prevented her from working as a medical
assistant.

See AR at 39-41.

She further testified that the

shaking in her hands made it difficult for her to use them.

4

Id.

at 49.

Foster said that she had shortness of breath two or three

times a week and used a cane daily.

Id. at 50.

Foster had

surgery planned later in November 2012 to correct her heel spurs.
Id. at 51.

She testified that her treating physician,

Dr. Engels, had told her that “everything is in [her] mind.”

Id.

at 42.
Foster sought mental health treatment at the Waianae
Coast Comprehensive Health Center in March 2012 for depression
and anxiety.

See AR at 42-43.

Foster testified that her husband helped her take her
medications and did everything for her, including grocery
shopping, cooking, cleaning, and washing clothes.

She said that

she generally stayed home, sometimes cleaning her yard.

See AR

at 47-48.
Dr. Harvey L. Alpern (identified as “Dr. Halpern” in
the transcript), an impartial medical expert who sat through
Foster’s testimony, testified next.

Having reviewed Foster’s

medical history, he testified:
She has the history [of] ventricular septal
defect repair, with a tiny jet residual, and
no pulmonary hypertension. Unfortunately,
her physicians write the opposite in the
record and say she has hypertension and
pulmonary hypertension, but she does not, she
has legadema [phonetic], and they’re giving
her very strong medication for it, and
there’s no indication that it’s coming from
the heart at all, it’s probably coming from
the second diagnosis which is obesity with a
38 BMI. She has a history of headaches, . .
5

. a history of asthma, and history of plantar
fasciitis, and heel spurs. The heel spurs
are going to be treated with surgery and the
plantar fasciitis, as far as I can see, has
not been treated. That’s about it.
AR at 52-53.

Dr. Alpern noted that Foster’s hand tremors were

not documented well.

Id. at 53.

Dr. Alpern stated that, given

Foster’s conditions, she should “have restrictions of lifting 20
pounds occasionally, [and] 10 pounds frequently.”

AR at 53.

Dr. Alpern stated that she should be restricted to standing and
walking two out of eight hours in light of her foot problems, and
that she could sit for six hours.

Id.

Dr. Alpern testified that

Foster’s impairments did not, “either singularly or in
combination, . . . meet or equal a listing [as impaired].”

Id.

at 53.
Dr. Robert J. McDevitt, another impartial medical
expert, testified next.

He too had reviewed Foster’s records and

testified, “Based just on her behavioral health problems, she
should be able to do simple repetitive, work with her physical
limitations as outlined by the doctor.”

AR at 55.

that she could not do any fast-paced work.

He opined

Id. at 57.

He

testified that, because of her post-traumatic stress disorder,
she should not be subject to intense or hard supervision and
should have only minimal contact with the public.

Id.

Kevin Z. Yi, an impartial vocational expert, testified
that, in the previous 15 years, Foster had worked as a security

6

guard, classified as a light exertion, semi-skilled job.
at 58.

See AR

She had also worked as an auto parts stock and delivery

person, classified as a heavy exertion, semi-skilled job, and had
been a self-employed sales person, classified as a light
exertion, semi-skilled job.

Id.

When asked whether he thought

Foster could perform her past work, given the limitations
(walking/standing for two hours per day, “occasional posturals,
bending, stooping, kneeling,” no concentrated exposures to
noxious dust, fumes or other irritants, no fast-paced job, and no
interactions with the general public), Yi testified that Foster
could not perform her past jobs.

Id. at 58-59.

He testified

that she could perform a sedentary exertion job, such as the job
of a final assembler (25,000 jobs nationally and 30 in Hawaii), a
toy stuffer (17,000 jobs nationally and 16 to 20 in Hawaii), or
an electronic inspector (40,000 jobs nationally and 40 in
Hawaii), all unskilled jobs not on production lines.
61.

Id. at 59-

But Yi also testified that, if Foster had headaches that

caused her to miss two days of work a month, she would not be
able to do that work.

Id. at 60.

On November 19, 2012, the ALJ issued his decision
denying Social Security disability insurance benefits.
14 to 23.

See AR at

He ruled that Foster had not been disabled for

disability insurance benefits purposes beginning on February 26,
2010.

Id. at 14.

He began his analysis by examining the five-

7

step sequential evaluation process set forth in 20 C.F.R.
§ 404.1520(a)(4).

The Ninth Circuit has summarized those steps:

In step one, the ALJ determines whether a
claimant is currently engaged in substantial
gainful activity. If so, the claimant is not
disabled. If not, the ALJ proceeds to step
two and evaluates whether the claimant has a
medically severe impairment or combination of
impairments. If not, the claimant is not
disabled. If so, the ALJ proceeds to step
three and considers whether the impairment or
combination of impairments meets or equals a
listed impairment under 20 C.F.R. pt. 404,
subpt. P, App. 1. If so, the claimant is
automatically presumed disabled. If not, the
ALJ proceeds to step four and assesses
whether the claimant is capable of performing
her past relevant work. If so, the claimant
is not disabled. If not, the ALJ proceeds to
step five and examines whether the claimant
has the residual functional capacity (“RFC”)
to perform any other substantial gainful
activity in the national economy. If so, the
claimant is not disabled. If not, the
claimant is disabled.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
With respect to step one, the ALJ found that Foster had
not engaged in substantial gainful activity since February 26,
2010.

See AR at 16.

This meant that the ALJ was required to

proceed to step two and evaluate whether Foster had a medically
severe impairment or combination of impairments.
With respect to step two, the ALJ found that Foster had
“the following severe impairments: status post ventricular septal
defect repair, bilateral heel spurs with plantar fasciitis,
headaches, lumbar spine degenerative disc disease, asthma,

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obesity, depressive disorder with psychotic features, and posttraumatic stress disorder.”

AR at 16.

The ALJ was required to

proceed to step three and determine whether the impairment or
combination of impairments met or equaled a listed impairment
under 20 C.F.R. pt. 404, subpt. P, App. 1.
With respect to step three, the ALJ found that Foster
did not have an impairment or combination of impairments that met
or equaled a listed impairment under 20 C.F.R. pt. 404, subpt. P,
App. 1.

AR at 16.

In making that determination, the ALJ

examined Foster’s claimed mental impairments, but not her
physical impairments.

The ALJ concluded that Foster’s mental

impairments did not meet the criteria set forth in either section
12.04 or section 12.06 of 20 C.F.R. pt. 404, subpt. P, App. 1.
Each section has a Paragraph B that must be satisfied.

For both

sections, the Paragraph B provisions require that the mental
impairment have resulted in at least two of the following:
“1. Marked restriction of activities of daily living; or 2.
Marked difficulties in maintaining social functioning; or 3.
Marked difficulties in maintaining concentration, persistence, or
pace; or 4. Repeated episodes of decompensation, each of extended
duration.”

The ALJ determined that neither of the two

Paragraph B provisions was satisfied in Foster’s case because she
had only a mild restriction in daily living, moderate
difficulties in social functioning, moderate difficulties in

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concentration, persistence, or pace, and no episodes of
decompensation.

See AR at 17.

Having determined that Foster

failed to satisfy step three with respect to her mental
impairments, the ALJ was required to move on to step four.
With respect to Foster’s physical medical issues, the
ALJ did not expressly determine that step three had or had not
been satisfied.

The court notes that Dr. Alpern testified that

Foster’s medical impairments, either by themselves or in
combination, did not meet or exceed the listing.

See AR at 53.

In any event, the ALJ proceeded to step, examining whether Foster
was capable of performing her past relevant work and determining
that she was not, based on the vocational expert’s testimony.
See AR at 21.
Having determined that Foster satisfied step four, the
ALJ proceeded to step five and examined whether Foster had the
residual functional capacity to perform any other substantial
gainful activity in the national economy.

The ALJ determined

that Foster could perform light work, except that she was limited
to two hours of standing or walking in a day; occasional postural
activities, such as bending, crouching, and kneeling; no work on
ropes or ladders; no concentrated exposure to noxious dust,
fumes, or odors; no fast-paced or high-production work; and
infrequent verbal interactions with the public.

See AR at 17-18.

After examining Foster’s documented medical conditions, the ALJ

10

did not find Foster’s description of her limitations credible.
The independent medical testimony indicated that Foster’s
impairments did not meet any listing.

Moreover, Foster was able

to complete medical assistant school despite her medical
limitations, suggesting that Foster herself thought she would be
able to perform such work when she graduated.

Id. at 20.

In so determining, the ALJ did not credit Foster’s
treating physician, Dr. Winslow S. Engel, who opined on August 4,
2011, that Foster was “totally disabled due to her back pain and
plantar faciitis.”

See AR at 543.

The ALJ stated that the

“finding of disability is one reserved for the Commissioner . . .
and the documented medical evidence . . . does not fully support
the extreme degree of limitations in [Engel’s] opinion[].”

AR at

21.
The ALJ also determined that a treating nurse
practitioner was not an acceptable medical source.

See AR at 21.

The ALJ concluded that, considering Foster’s age,
education, work experience, and residual functional capacity,
there were jobs in significant numbers in the national economy
that Foster could perform.

See AR at 22.

This determination was

based on the vocational expert’s testimony that Foster could
perform unskilled sedentary occupations such as those of a final
assembler, a toy stuffer, or an electronic inspector.

11

On or about December 7, 2012, Foster asked the Social
Security Appeals Council to review the ALJ’s decision.
10.

See AR at

The Appeals Council denied that request, advising Foster

that she could file a civil action to have the decision reviewed
by a court.

Id. at 1-3.

Foster filed the present appeal on April 4, 2014.

See

ECF No. 1.
IV.

ANALYSIS.
Foster fails to demonstrate that the ALJ’s decision

contained legal error or was not supported by substantial
evidence.

Absent legal error or a failure to support a decision

by substantial evidence, the ALJ may not be reversed by this
court.

See Ryan, 528 F.3d at 1198; Bayliss, 427 F.3d at 1214

n.1.
To be eligible for Social Security disability benefits,
Foster must demonstrate that she is unable to “engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.”
§ 423(d)(1)(A).

42 U.S.C.

For purposes of § 423(d)(1)(A), Foster

shall be determined to be under a disability
only if [her] physical or mental impairment
or impairments are of such severity that
[she] is not only unable to do [her] previous
work but cannot, considering [her] age,
education, and work experience, engage in any
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other kind of substantial gainful work which
exists in the national economy, regardless of
whether such work exists in the immediate
area in which [she] lives, or whether a
specific job vacancy exists for [her], or
whether [she] would be hired if [she] applied
for work. For purposes of the preceding
sentence (with respect to any individual),
“work which exists in the national economy”
means work which exists in significant
numbers either in the region where such
individual lives or in several regions of the
country.
42 U.S.C. § 423(d)(2)(A).

Additionally, “[i]n determining

whether an individual's physical or mental impairment or
impairments are of a sufficient medical severity that such
impairment or impairments could be the basis of eligibility under
this section, the Commissioner of Social Security shall consider
the combined effect of all of the individual's impairments
without regard to whether any such impairment, if considered
separately, would be of such severity.”

42 U.S.C.

§ 423(d)(2)(B).
The ALJ applied the required five-step sequential
analysis to determine whether Foster was entitled to Social
Security disability benefits.

See 20 C.F.R. § 404.1520(a)(4).

The burden was on Foster to prove steps one through four.

With

respect to step five, the burden shifted to the Commissioner of
Social Security to show that Foster could perform other
substantial gainful work.

Id.

Foster does not clearly challenge

the ALJ’s analysis under the five-step test.

13

Nothing in her

opening brief, ECF No. 25, directly challenges the ALJ’s
determination that Foster had the residual functioning capacity
to perform sedentary unskilled work or that jobs existed in the
national and local economy meeting that description.

This court

determines that the ALJ’s decision was not based on legal error
and was supported by substantial evidence.
At most, with respect to step three of the test, the
ALJ may not have expressly addressed Foster’s physical ailments
or the combination of them in determining whether she met or
equaled a listed impairment under 20 C.F.R. pt. 404, subpt. P,
App. 1.

AR at 16.

But the ALJ earlier acknowledged those

physical impairments and appears to have implicitly considered
them in determining in step five that Foster had the residual
functioning capacity to do sedentary light work and that jobs
existed in the national and local economies that Foster would be
able to do, rendering her not disabled for purposes of Social
Security disability insurance benefits.

The ALJ’s determination

as to step five is certainly supported by substantial evidence.
In addition to the vocational expert and independent medical
testimony, Foster herself testified that she attended and
completed medical assistant school during the period she was
claiming she was disabled.
Foster’s opening brief does not clearly identify any
specific problem with the ALJ’s decision.

14

It states things like

“Medical conditions not taken into account by Social Security
Administration.”

See ECF No. 25, PageID #s 831.

The opening

brief then attaches various medical reports as exhibits.
id., PageID #s 832-848.

See

These exhibits are a mental health

condition report dated February 4, 2015, a neurological report
dated October 8, 2014, and surgery reports dated November 12 and
December 15 and 17, 2012.

Id.

All of these reports are dated

after the hearing date and shortly before or after the ALJ’s
decision, and Foster nowhere points to their inclusion in the
Administrative Record.

Foster does not show that what appears to

be “new evidence” dating to a time after the administrative
hearing “is material and that there is good cause for the failure
to incorporate such evidence into the record” such that this
court can remand the matter for the Commissioner of Social
Security to take into account.

See 42 U.S.C. § 405(g).

Nor does Foster demonstrate that any of the new
evidence is relevant to the disability determination she
challenges.

While the reports from 2012, 2014, and 2015 may

demonstrate that her condition has deteriorated, that does not
establish that the ALJ erred.

See Getch v. Astrue, 539 F.3d 473,

484 (7th Cir. 2008) (“Medical evidence postdating the ALJ’s
decision, unless it speaks to the patient’s condition at or
before the time of the administrative hearing, could not have
affected the ALJ’s decision and therefore does not meet the

15

materiality requirement.”); Flaten v. Sec. of Health & Human
Servs., 44 F.3d 1453, 1461 (9th Cir. 1995) (only disabilities
during insured status are relevant); see also 20 C.F.R. § 404(b)
(“If new and material evidence is submitted, the Appeals Council
shall consider the additional evidence only where it relates to
the period on or before the date of the administrative law judge
hearing decision.

The Appeals Council shall evaluate the entire

record including the new and material evidence submitted if it
relates to the period on or before the date of the administrative
law judge hearing decision.”).
For the same reasons, Foster’s husband’s recent
description of her medical conditions does not establish error in
the ALJ’s determination that she was not disabled at the time he
made his decision.
V.

See ECF No. 27.

CONCLUSION.
Because the ALJ’s decision is supported by substantial

evidence and is not based on legal error, the court affirms the
decision.

This determination does not mean that Foster can never

receive Social Security disability insurance benefits.

At the

hearing, the attorney for the Commissioner of Social Security
represented that Foster was eligible for such benefits until
later this year and that she could reapply for such benefits
based on deterioration of her physical and/or mental conditions
since the ALJ’s decision.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 13, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Foster v. Colvin, Civ. No. 14-00163 SOM/KSC; Order Affirming Social Security Decision
Denying Disability Insurance Benefits

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