Daniel L. Kilgore v. Nancy A. Berryhill, No. 5:2017cv00249 - Document 27 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (See document for further details.) (sbou)
Download PDF
<![CDATA[
Daniel L. Kilgore v. Nancy A. Berryhill Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. EDCV 17-00249-AFM DANIEL L. KILGORE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying his applications for disability insurance benefits and supplemental security 20 income. In accordance with the Court’s case management order, the parties have 21 filed memorandum briefs addressing the merits of the disputed issues. This matter 22 now is ready for decision. 23 BACKGROUND 24 On October 28, 2012, Plaintiff applied for disability insurance benefits and 25 supplemental security income, alleging that he became disabled and unable to work 26 on October 4, 2008. Plaintiff’s claims were denied initially and on reconsideration. 27 Administrative Law Judge (“ALJ”) Lawrence J. Duran conducted a hearing on 28 June 21, 2013, at which Plaintiff, his attorney, and a vocational expert (“VE”) were Dockets.Justia.com 1 present. (Administrative Record (“AR”) 47-99.) After ALJ Duran issued an 2 unfavorable decision, the Appeals Council granted review, vacated the unfavorable 3 decision, and remanded the matter for further proceedings. (AR 245-247.) A new 4 hearing was held on January 5, 2016 before ALJ Lynn Ginsberg. Plaintiff, his 5 attorney, and a VE were present. (AR 100-171.) ALJ Ginsberg issued a written 6 decision on August 3, 2016, again finding Plaintiff not disabled. (AR 20-46.) The 7 Appeals Council denied review on December 14, 2016 (AR 1-2), rendering that 8 decision the final decision of the Commissioner. DISPUTED ISSUES 9 1. 10 Whether the ALJ exceeded the scope of the Appeal Council’s remand order. 11 2. 12 Whether the ALJ’s residual functional capacity (“RFC”) assessment is supported by substantial evidence. 13 3. 14 Whether the ALJ erred at Step Four of the sequential evaluation. STANDARD OF REVIEW 15 16 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 17 determine whether the Commissioner’s findings are supported by substantial 18 evidence and whether the proper legal standards were applied. See Treichler v. 19 Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). 20 Substantial evidence means “more than a mere scintilla” but less than a 21 preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter 22 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such 23 relevant evidence as a reasonable mind might accept as adequate to support a 24 conclusion.” Richardson, 402 U.S. at 401. Where evidence is susceptible of more 25 than one rational interpretation, the Commissioner’s decision must be upheld. See 26 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 27 /// 28 /// 2 DISCUSSION 1 2 1. Whether ALJ Ginsberg exceeded the scope of the Appeals Council’s 3 remand order. 4 In the initial decision denying benefits, ALJ Duran assessed Plaintiff with the 5 RFC to perform a restricted range of light work. (AR 234.) Accepting the testimony 6 of the VE, ALJ Duran found that based upon those limitations, Plaintiff could 7 perform his past relevant work as a president. (AR 239.) The Appeals Council 8 reversed ALJ Duran’s disability determination, finding that the ALJ erred in relying 9 on the VE’s testimony because the record lacked sufficient information that 10 Plaintiff had ever worked as a president. It remanded the matter to the ALJ with 11 directions to obtain supplemental evidence from a vocational expert. In addition, 12 the Appeals Council directed the ALJ to “offer the claimant an opportunity for a 13 hearing, take any further action needed to complete the administrative record and 14 issue a new decision.” (AR 246-247.) After conducting a new hearing on remand, 15 ALJ Ginsberg assessed Plaintiff with the RFC to perform a limited range of 16 medium work. (AR 27-28.) 17 Plaintiff contends ALJ Ginsberg exceeded the scope of the Appeals 18 Council’s remand by reassessing Plaintiff’s RFC. Plaintiff, however, raised this 19 argument to the Appeals Council when he appealed ALJ Ginsberg’s decision. (AR 20 533-535.) The Appeals Council denied review. (AR 1-2.) By so doing, the Appeals 21 Council necessarily concluded that the ALJ’s action was consistent with its remand 22 order. See generally 20 C.F.R. § 404.977(b) (the ALJ shall take any action ordered 23 by the Appeals Council and may take any additional action that is not inconsistent 24 with the Appeals Council’s remand order). Thus, Plaintiff’s claim lacks factual 25 support. 26 Furthermore, the Court may not reverse a final disability decision based upon 27 an ALJ’s alleged failure to follow a remand order. See Strauss v. Comm’r of the 28 Soc. Sec. Admin., 635 F.3d 1135, 1136–1138 (9th Cir. 2011) (district court erred in 3 1 awarding benefits based upon ALJ’s failure to follow remand orders from the 2 Appeals Council and from the district court because the issue is whether the 3 claimant was disabled); Lopez v. Colvin, 2014 WL 1370672, at *2 n.3 (C.D. Cal. 4 Apr. 7, 2014) (plaintiff cannot prevail based upon a claim that the ALJ failed to 5 comply with a remand order, rather “the issue before this Court is whether the 6 ALJ's decision is based on substantial evidence and is free of legal error”); Lara v. 7 Colvin, 2013 WL 5520220, at *2 (C.D. Cal. Oct. 3, 2013) (ALJ’s failure to follow 8 remand order is not a proper basis for a reversal or remand of the ALJ’s final 9 decision regarding disability); see also Hamlin v. Barnhart, 365 F.3d 1208, 1224 10 (10th Cir. 2004) (on remand, “[i]t was certainly within the ALJ’s province, upon 11 reexamining [claimant]’s record, to revise his RFC category.”). 12 2. Whether the ALJ’s RFC determination is supported by substantial 13 evidence. 14 The ALJ found that Plaintiff suffered from the following severe impairments: 15 disc protrusion at L4-S1 with spondylosis at L5-S1; cervical radiculopathy; right 16 shoulder impingement; thoracic sprain/stain with degenerative disc disease; lumbar 17 sprain/strain with radiculopathy to right lower extremity; chronic neck and lower 18 back pain due to multilevel disc herniation; myocardial infarction status post 19 coronary artery bypass graft X3; diabetes mellitus; hypertension; neuropathy, 20 personality disorder; major depression; and marijuana abuse. (AR 26.) The ALJ 21 then determined that Plaintiff retained the RCF to perform medium work, except 22 [He] can lift and/or carry 50 pounds occasionally and 25 pounds 23 frequently. He can stand and/or walk for six hours out of an eight-hour 24 workday with regular breaks. He can sit for six hours out of an eight- 25 hour workday with regular breaks. He can frequently push and pull 26 bilaterally with the lower extremities. He can frequently push and pull 27 bilaterally with the upper extremities. He can never climb ladders, 28 robes, or scaffolds. He can frequently climb ramps and stairs, balance, 4 1 stoop, kneel, crouch, and crawl. He can frequently reach bilaterally in 2 all directions, including overhead. He can frequently handle and finger 3 bilaterally. He can occasionally feel bilaterally. He can occasionally 4 have exposure to temperature extremes of hot and cold, wetness or 5 humidity, and excessive vibration. He can have occasional exposure to 6 environmental irritants such as fumes, odors, dusts, and gases. He can 7 have occasional exposure to poorly ventilated areas. He can have 8 occasional use of moving hazardous machinery. He can have 9 occasional exposure to unprotected heights. He can have occasional 10 11 12 13 interaction with the public. (AR 27.) In reaching her conclusion, the ALJ considered the following relevant evidence: 14 The objective diagnostic evidence, including physical examinations, 15 magnetic resonance imaging (MRI), X-rays, ultrasounds, and nerve 16 conduction velocity testing. (See AR 31-32, 550-551, 605, 647, 747-754, 17 767, 855-858, 890-893, 943-946.) 18 The February 2012 report of consultative examiner Ulin Sargeant, M.D., 19 who conducted a complete examination of Plaintiff and opined that 20 Plaintiff could perform a range of medium work. (AR 32, 36, 644-649.) 21 The decisions of state agency medical consultants, who opined that 22 Plaintiff could perform a range of medium work. (AR 36, 172-187, 189- 23 204, 217-223.) 24 The report of consultative examiner Azizollah Karamlou, M.D., who 25 opined that Plaintiff could perform medium work with the exception that 26 he could only frequently perform fine manipulation as a result of 27 radiculopathy. (AR 36, 1313-1323.) 28 The January 2011 report of consultative examiner Jason E. Groomer, 5 1 D.O., who opined that Plaintiff should avoid overhead reaching or work 2 with the right upper extremity; could lift no more than 10 pounds with the 3 right upper extremity once or twice an hour at most; could perform 4 limited bending, twisting, and repetitive lifting from floor to waist; could 5 lift no more than 40 pounds; and could carry 50 pounds from floor to 6 waist. (AR 35, 599-612.) 7 The November 2009 report of medical evaluator Michael J. Einbund, 8 M.D., conducted in connection with Plaintiff’s workers’ compensation 9 case, opining that Plaintiff “should be precluded from heavy lifting and 10 11 repetitive neck flexion or extension with regard to his neck and spine.” (AR 35, 747- 771.) 12 The ALJ gave great weight to the opinions of Dr. Sargeant and the state 13 agency medical consultants, finding that they were supported by the other evidence 14 in the record, including the objective diagnostic testing showing “no nerve root 15 impingement or severe stenosis”; the lack of aggressive treatment received; and 16 Plaintiff’s daily activities. (AR 36.) These opinions constitute substantial evidence 17 supporting the ALJ’s RFC assessment. See Ruiz v. Colvin, 638 F. App’x. 604, 606 18 (9th Cir. 2016) (ALJ did not err in giving the greatest weight to non-examining 19 state agency medical consultants because “the ALJ found their opinions consistent 20 with the greater medical record, progress and treating notes, and [the plaintiff]'s 21 description of her daily activities”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 22 Cir. 2001) (the opinion of consultative examining physician may constitute 23 substantial evidence supporting ALJ’s RFC assessment because it is based on his 24 own independent examination of claimant); Hilburn v. Berryhill, 2017 WL 25 4877267, at *4 (C.D. Cal. Oct. 27, 2017) (same). 26 The ALJ interpreted Dr. Einbund’s opinion that Plaintiff was precluded from 27 heavy lifting as a conclusion that Plaintiff could lift and carry up to 50 pounds. (AR 28 35.) As the ALJ explained, under workers’ compensation cases, a limitation on 6 1 heavy lifting contemplates a 50 percent loss in pre-injury capacity. Because 2 Plaintiff’s past work involved lifting 100 pounds, Dr. Einbund effectively opined 3 that Plaintiff was precluded from lifting or carrying more than 50 pounds, a 4 conclusion consistent with the ALJ’s RFC. (AR 35.) The ALJ did not give great 5 weight to Dr. Einbund’s opinion that Plaintiff was precluded from repetitive neck 6 flexion or extension because she found the opinion inconsistent with the objective 7 medical evidence which demonstrated that Plaintiff’s range of motion in his neck 8 was not significantly limited. (AR 35.) The record supports the ALJ’s conclusion. 9 (See, e.g., AR 607, 647, 752.) 10 The ALJ gave little weight to Dr. Groomer’s opinion, reasoning that the 11 record demonstrated that Plaintiff had improvement of his grip strength following 12 Dr. Groomer’s examination; there was no evidence of neurological deficits when 13 Plaintiff was examined in February 2012 and January 2013; and the lack of regular 14 medical treatment after January 2013 suggested that Plaintiff’s condition was not as 15 limiting as alleged. (AR 35, 647-648.) The ALJ also gave little weight Dr. Long’s 16 opinion that Plaintiff was effectively precluded from performing any work, finding 17 it vague and lacking in objective support. As the ALJ explained, Dr. Long failed to 18 point to any objective clinical or diagnostic findings to support his assessment of 19 extreme limitations. (AR 36.) As an example, the ALJ pointed out that Dr. Long 20 opined that Plaintiff could rarely lift even 10 pounds, yet Plaintiff estimated that he 21 could lift approximately 45 pounds. (AR 36, 602.) The ALJ further discredited 22 Dr. Long’s opinion on the basis that it was not from an acceptable medical source. 23 (AR 36; citing 20 C.F.R. § 404.1513(a)(e).) 24 The ALJ gave great weight to the opinion of Dr. Karamlou. The ALJ 25 acknowledged that Dr. Karamlou’s examination took place in 2015, after the date 26 last insured, but explained that Dr. Karamlou had the benefit of reviewing 27 Plaintiff’s medical record. Further, the ALJ found that Dr. Karamlou’s opinion was 28 supported by objective diagnostic findings showing moderate to severe 7 1 degenerative disc disease of the cervical spine and degenerative disc disease of the 2 lumbar spine, but no severe stenosis or nerve root impingement. (AR 36.) In 3 addition, the ALJ noted that Dr. Karamlou’s opinion was consistent with 4 Dr. Sargeant’s examination finding improvements in Plaintiff’s full grip strength as 5 well as Plaintiff’s normal neurological examination. (AR 36, 647-648.) 6 Plaintiff argues that the ALJ erred by giving great weight to Dr. Karamlou’s 7 opinion because Dr. Karamlou examined Plaintiff more than a year and a half after 8 Plaintiff’s date last insured expired. Plaintiff concedes that the ALJ is entitled to 9 rely upon a retrospective diagnosis and therefore that Dr. Karamlou’s opinion could 10 serve as the basis for the ALJ’s RFC. (ECF No. 22 at 14.) See Smith v. Bowen, 849 11 F.2d 1222, 1225 (9th Cir. 1988) (medical evaluations made after the expiration of a 12 claimant’s insured status are relevant to an evaluation of the pre-expiration 13 condition). Nevertheless, Plaintiff contends that the ALJ afforded Dr. Karamlou’s 14 opinion too much weight. According to Plaintiff, despite Dr. Karamlou’s statement 15 that he had reviewed “all medical records,” Dr. Karamlou failed to cite exhibit 16 numbers or provide a “meaningful analysis of the evidence.” (ECF No. 22 at 15.) 17 Although the ALJ could have found Dr. Karamlou’s opinion less persuasive 18 based upon his failure to provide a particularized discussion of Plaintiff’s medical 19 records, it was not error for the ALJ to credit his opinion. Notwithstanding 20 Plaintiff’s insinuation, there is no reason to doubt the veracity of Dr. Karamlou’s 21 representation that he reviewed Plaintiff’s records; nor is there any requirement that 22 Dr. Karamlou’s report include a written discussion of those records before his 23 opinion is entitled to weight. 24 Furthermore, even without Dr. Karamlou’s report, the ALJ’s RFC assessment 25 is supported by substantial evidence – namely, the opinions of Dr. Sargeant and the 26 state agency medical examiners. Plaintiff does not contend that the ALJ committed 27 error in relying on those physician opinions. Instead, Plaintiff’s argument is that the 28 Appeals Council did not “explicitly order [the ALJ] to re-evaluate Plaintiff’s 8 1 residual functional capacity” on remand, yet ALJ Ginsberg did so. (ECF No. 22 at 2 15.) Plaintiff apparently believes that ALJ Ginsberg’s RFC should be reversed 3 because ALJ Duran’s RFC assessment was a better interpretation of the medical 4 evidence. As discussed, however, the Court’s review is limited to determining 5 whether the Commissioner’s final disability determination – in this case, the 6 determination made by ALJ Ginsberg on remand – is free from legal error and 7 supported by substantial evidence. It may not reverse the ALJ’s RFC assessment 8 simply because a different interpretation of the medical evidence was possible. See 9 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 10 susceptible to more than one rational interpretation, it is the ALJ's conclusion that 11 must be upheld.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (where 12 the ALJ’s interpretation of the record is reasonable, it should not be second- 13 guessed). 14 Last, Plaintiff argues that, in assessing Dr. Groomer’s opinion, the ALJ 15 improperly considered Plaintiff’s lack of medical treatment for pain after January 16 2013. As Plaintiff points out, he testified that he did not have medical insurance and 17 had difficulty affording treatment. (AR 113-114, 118-119.) The ALJ provided 18 several reasons for her decision to give “little weight” to Dr. Groomer’s opinion. 19 Specifically, the ALJ explained that (1) with regard to Plaintiff’s upper extremity 20 limitation, the medical evidence revealed that Plaintiff had an improvement in grip 21 strength following Dr. Groomer’s evaluation; (2) there was no evidence of 22 neurological deficits in examinations in 2012 and 2013; and (3) the “lack of regular 23 medical treatment after January of 2013 suggests that the claimant’s condition was 24 not as limiting as alleged.” (AR 35.) 25 Plaintiff is correct that an ALJ may not draw a negative inference from a lack 26 of treatment where the claimant could not afford treatment. See Regennitter v. 27 Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999) (“we have 28 proscribed the rejection of a claimant’s complaints for lack of treatment when the 9 1 record establishes that the claimant could not afford it”). Assuming that the ALJ 2 erred by doing so here, the error was harmless because it was but one of several 3 reasons the ALJ relied upon in rejecting the opinion of consultative examiner 4 Dr. Groomer. For the foregoing reasons, substantial evidence supports the ALJ’s RFC 5 6 assessment. 7 3. Whether the ALJ erred at Step Four. 8 At Step Four, the claimant bears the burden of showing that he or she does 9 not have the residual functional capacity to engage in “past relevant work.” 20 10 C.F.R. §§ 404.1520(e) & 416.920(e); Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 11 2001); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Past relevant work is 12 defined as work that the claimant has “done within the past 15 years, that was 13 substantial gainful activity, and that lasted long enough for [the claimant] to learn to 14 do it.” 20 C.F.R. § 404.1560. Past relevant work can be part time, Katz v. Secretary 15 of HHS, 972 F.2d 290, 292 (9th Cir. 1992), unpaid, Keyes v. Sullivan, 894 F.2d 16 1053, 1056 (9th Cir. 1990), or performed on a substitute basis, Byington v. Chater, 17 76 F.3d 246, 250 (9th Cir. 1996). See De La Barcena v. Colvin, 2013 WL 5924563, 18 at *3 (C.D. Cal. Nov. 1, 2013). It need only require significant mental and physical 19 activities to be substantial. 20 C.F.R. §§ 404.1572(a), 416.972(a). Further, to be 20 gainful, it need only be the kind of work “usually done for pay or profit, whether or 21 not a profit is realized.” 20 C.F.R. §§ 404.1572(b), 416.972(b). 22 Where, as here, the claimant’s prior work was self-employment, the ALJ 23 looks to one of three tests to determine whether the work constituted substantial 24 gainful activity. Olea v. Colvin, 2013 WL 5539386, at *3 (C.D. Cal. Oct. 8, 2013) 25 (citing Social Security Ruling (“SSR”) 83–34; 20 C.F.R. § 404.1575; 20 C.F.R. 26 § 416.975); Le v. Astrue, 540 F. Supp. 2d 1144, 1149–1150 (C.D. Cal. 2008). 27 /// 28 /// 10 1 Substantial evidence supports the ALJ’s finding. 2 In finding Plaintiff not disabled, the ALJ determined that Plaintiff could 3 perform his past work as a chief executive officer (“CEO”) of website development. 4 (AR 38.) Applying test two of the SSR, and considering Plaintiff’s testimony and 5 the other evidence in the record, the ALJ found that Plaintiff’s CEO work was 6 substantial gainful activity because the work he performed was similar to that of an 7 unimpaired person in the community. (AR 39 (citing 20 C.F.R. § 404.1575 and 8 SSR 83-84).) Plaintiff contends that the ALJ’s finding at Step Four is not supported 9 by substantial evidence. (ECF No. 22 at 16.) The record contains the following 10 evidence related to Plaintiff’s work as a CEO. 11 Plaintiff was self-employed as the CEO of his web development company 12 from 2000 to 2005. (AR 108-109, 505-507, 509.)1 Plaintiff testified that he also 13 worked as an inspector for the Boeing Company during that time, and his salary 14 was based upon his inspector position. (AR 108-109, 388.) According to Plaintiff, 15 his CEO position involved travelling on assignments, but after he had heart surgery 16 in 2000, Plaintiff was restricted from flying for an unspecified length of time. Then, 17 after the events of September 11, 2001, Boeing diverted money from Plaintiff’s 18 company. (AR 110-111, 508.) The company never made money. (AR 107-108, 19 506-509.) 20 During the hearing, the ALJ inquired about Plaintiff’s skills, duties and 21 responsibilities as CEO to determine whether Plaintiff performed each of the tasks 22 associated with the job of CEO as described in the DOT. In response, Plaintiff 23 testified that he was involved in the business operations and management of the 24 company, and that his duties included developing business plans and new projects, 25 planning business objectives, reviewing financial statements, formulating financial 26 1 27 28 Although Plaintiff testified that he performed this job from 1999 to 2003 (AR 109), he concedes in his brief that the correct time frame is 2000 to 2005 as indicated in other parts of the record. (ECF No. 17 at 16.) 11 1 strategies, planning and developing industrial labor and public relation policies, and 2 evaluating the performance of executives. (AR 107-109.) 3 Plaintiff further testified that when he was trying to get his business “off the 4 ground” he spent eight, ten, and sometimes fourteen hours a day working on his 5 software. He did this four or five days a week. Plaintiff estimated that he would “go 6 on a four, five day run maybe once every two weeks.” (AR 133.) When he was not 7 programming, Plaintiff spent his time “map plotting” or creating storyboards for 8 webpage layout. He testified that it could take “hours just to do one page.” (AR 9 134.) As part of his job, Plaintiff traveled to Seattle and Huntington Beach. (AR 10 110.) Plaintiff also worked on other projects for his company. He described one 11 project as building an internet service provider company, and explained that he 12 performed the marketing, the website design, the creation of all the animation 13 processes, setting up the servers, and other administrative tasks, all of which he said 14 he was “certified” to perform. (AR 135-136.) 15 Finally, the VE testified that Plaintiff’s past relevant work included a CEO of 16 website development and confirmed that Plaintiff performed the job consistently 17 with the definition of DOT 189.117-026.2 (AR 148.) 18 19 20 21 22 23 24 25 26 27 28 2 The DOT uses the title “President” rather than “CEO” and describes the job as follows: Plans, develops, and establishes policies and objectives of business organization in accordance with board directives and corporation charter: Confers with company officials to plan business objectives, to develop organizational policies to coordinate functions and operations between divisions and departments, and to establish responsibilities and procedures for attaining objectives. Reviews activity reports and financial statements to determine progress and status in attaining objectives and revises objectives and plans in accordance with current conditions. Directs and coordinates formulation of financial programs to provide funding for new or continuing operations to maximize returns on investments, and to increase productivity. Plans and develops industrial, labor, and public relations policies designed to improve company's image and relations with customers, employees, stockholders, and public. Evaluates performance of executives for compliance with established policies and objectives of firm and contributions in attaining objectives. 12 1 In determining whether Plaintiff’s work as CEO constituted substantial 2 gainful activity, the ALJ appropriately considered whether Plaintiff’s work activity, 3 in terms of factors such as skills, duties and responsibilities, was comparable to 4 that of an unimpaired individuals in the community. (AR 38-39; 20 C.F.R. 5 § 404.1575(a)(2)(ii).) 6 Nevertheless, Plaintiff argues that the ALJ erred in finding his work as a 7 CEO to be substantial gainful activity because the “evidence simply does not 8 suggest that [Plaintiff] worked long enough to learn how to do the job.” (ECF No. 9 22 at 17.) He points out that the DOT states that the CEO occupation involves a 10 Specific Vocational Preparation Level of 8, which generally takes over four years 11 and up to ten years to learn. (ECF No. 22 at 17; AR 539.) Plaintiff asserts that 12 although he performed the CEO job from 2000 to 2005, much of his time was spent 13 performing his job as an inspector and he took a “long hiatus” after open-heart 14 surgery. Furthermore, Plaintiff points out that his company “failed.” (ECF No. 22 at 15 17; AR 110.) According to Plaintiff, “[i]f he had learned the job, presumably the 16 company would have survived or at least [made] some money.” (ECF No. 22 at 17 17.) 18 The Commissioner argues that Plaintiff waived this issue by failing to raise it 19 at the time of his hearing. (ECF No. 25 at 12-13 (citing Meanel v. Apfel, 172 F.3d 20 1111, 1115 (9th Cir. 1999)).) The law precluding judicial review based upon a 21 claimant’s failure to present an issue to the ALJ is not clearly settled. Compare 22 Sims v. Apfel, 530 U.S. 103, 112 (2000) (“Claimants who exhaust administrative 23 remedies need not also exhaust issues in a request for review by the Appeals 24 Council in order to preserve judicial review of those issues.”); Kim v. Berryhill, 25 26 May preside over board of directors. May serve as chairman of committees, such as management, executive, engineering, and sales. 27 28 DOT 189.117-026. 13 1 2018 WL 626206, at *5 (C.D. Cal. Jan. 30, 2018) (declining to apply Meanel to 2 preclude judicial review based upon claimant’s failure to raise issue at 3 administrative hearing); Norris v. Colvin, 2013 WL 5379507, at *3 (C.D. Cal. 4 Sept. 25, 2013) (claimants “need not preserve issues in proceedings before the 5 Commissioner or her delegates”); with Phillips v. Colvin, 593 F. App’x. 683, 684 6 (9th Cir. 2015) (finding that issue of whether plaintiff had engaged in substantial 7 gainful activity “was waived by [plaintiff's] failure to raise it at the administrative 8 level when he was represented by counsel”); Nash v. Colvin, 2016 WL 4059617, at 9 *4 (C.D. Cal. July 27, 2016) (finding waiver based upon failure to raise issue at 10 hearing). Accordingly, the Court declines to find that Plaintiff’s claim is forfeited. 11 Nevertheless, Plaintiff’s assertion that the record “does not suggest that he 12 worked long enough to learn how to do the job” lacks merit. As set forth above, the 13 record demonstrates that Plaintiff performed his CEO job for five years, sometimes 14 spending eight or more hours a day developing his projects, and that his duties and 15 skills were significant. Notwithstanding Plaintiff’s “hiatus” after his surgery or the 16 fact that Plaintiff spent time performing his inspector job at the same time he was 17 CEO, the record shows that Plaintiff performed numerous skilled tasks and never 18 indicated that he lacked the skill or understanding to perform them. Moreover, the 19 actual time spent doing the job is only one factor relevant to the ultimate 20 determination. See generally 20 C.F.R. § 404.1573 (“While the time you spend in 21 work is important, we will not decide whether or not you are doing substantial 22 gainful activity only on that basis. We will still evaluate the work to decide whether 23 it is substantial and gainful regardless of whether you spend more time or less time 24 at the job than workers who are not impaired and who are doing similar work as a 25 regular means of their livelihood.”). Finally, to the extent that Plaintiff’s argument 26 implies that the success (or failure) of his business is determinative of the question 27 whether he performed substantial gainful employment, it also fails. See Keyes, 894 28 F.2d at 1056 (in assessing the gainfulness of the claimant’s activities, the question 14 1 is whether “it is the kind of work usually done for pay or profit,” not whether “a 2 profit is realized”) (citing 20 C.F.R. § 404.1572(b)). 3 For the foregoing reasons, the ALJ’s determination that Plaintiff’s past work 4 included the work of CEO is supported by substantial evidence. See Byington v. 5 Chater, 76 F.3d 246, 249–250 (9th Cir. 1996) (holding that the ALJ correctly 6 determined that claimant’s auto shop activities amounted to substantial gainful 7 activity based upon the numbers of hours worked, the duties claimant performed, 8 and his level of responsibility, and reiterating that claimant’s self-employed 9 earnings were not determinative) (citing 20 C.F.R. § 404.1575(a)); Munos 10 Contreras v. Colvin, 2016 WL 6088526, at *8 (S.D. Cal. Sept. 13, 2016) (ALJ did 11 not err in finding claimant’s work assembling artificial flowers amounted to 12 substantial gainful activity, noting that “work may still be substantial even if it is 13 done on a part-time basis” and that “work activity is gainful if it is the kind of work 14 usually done for pay or profit, whether or not a profit is realized”) (internal citations 15 and quotation marks omitted), report and recommendation adopted, 2016 WL 16 6082344 (S.D. Cal. Oct. 17, 2016). 17 Plaintiff essentially requests that the Court reweigh the evidence and reach a 18 different conclusion from that reached by the ALJ. This, of course, the Court may 19 not do. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 20 2004) (“When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the court] may not substitute [its] judgment for that of the ALJ.”). 22 The ALJ resolved any conflict between the VE’s testimony and the DOT. 23 Plaintiff points out that the DOT description of the CEO job requires the 24 “temperament” to deal with people, a “significant” amount of negotiating with 25 people, and frequent talking and hearing. (ECF No. 22 at 17-18 (citing AR 540).) 26 Plaintiff contends that the DOT description conflicts with the ALJ’s RFC limiting 27 Plaintiff to occasional interaction with the public, and therefore, the ALJ erred by 28 relying on the VE’s testimony that Plaintiff could perform his past work as CEO. 15 1 “When there is an apparent conflict between the vocational expert’s 2 testimony and the DOT – for example, expert testimony that a claimant can perform 3 an occupation involving DOT requirements that appear more than the claimant can 4 handle – the ALJ is required to reconcile the inconsistency.” Zavalin v. Colvin, 778 5 F.3d 842, 846 (9th Cir. 2015) (citing Massachi v. Astrue, 486 F.3d 1149, 1153– 6 1154 (9th Cir. 2007)). 7 Contrary to Plaintiff’s argument, the record confirms that the ALJ fulfilled 8 her obligation. When the ALJ asked the VE to consider a hypothetical individual 9 with the RFC she ultimately concluded that Plaintiff possessed, the VE testified that 10 the hypothetical individual would be able to perform Plaintiff’s past relevant work 11 as a CEO of website development. (AR 148-150.) The ALJ then specifically 12 questioned the VE about whether Plaintiff’s limitation to occasional interaction 13 with the public was consistent with the requirements of his past CEO work and the 14 VE answered affirmatively. The VE explained that a CEO would not interact with 15 the general public. The VE further explained that although a CEO would 16 occasionally meet with persons whom he was attempting to do business with, those 17 meetings generally would occur over the telephone or through correspondence on 18 the internet. (AR 154-155.) Thus, any purported conflict with the DOT was 19 specifically addressed and resolved by the ALJ. ORDER 20 21 For the foregoing reasons, IT IS ORDERED that Judgment be entered 22 affirming the decision of the Commissioner and dismissing this action with 23 prejudice. 24 25 DATED: 3/22/2018 26 27 28 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
