Minton v. Astrue, No. 5:2012cv05053 - Document 20 (N.D. Cal. 2013)
Court Description: ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT by Judge Paul S. Grewal denying 17 Motion for Summary Judgment; granting 18 Motion for Summary Judgment (psglc3, COURT STAFF) (Filed on 10/3/2013)
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Minton v. Astrue Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 10 United States District Court For the Northern District of California 9 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 VICKI JEAN MINTON, 13 Plaintiff, v. 14 15 ) ) ) ) ) ) ) ) ) ) CAROLYN COLVIN, Acting Commissioner, Social Security Administration, 16 Defendant. 17 18 Case No.: 5:12-CV-05303-PSG ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Re: Docket Nos. 17, 18, 19) Plaintiff Vicki Jean Minton (“Minton”) appeals the decision by Carolyn Colvin, Acting 19 Commissioner of Social Security (“Commissioner”), denying her supplemental security income 20 disability benefits. 1 Minton moves for summary judgment. The Commissioner opposes the motion 21 and cross-moves for summary judgment. The matter was submitted without oral argument 22 pursuant to Civ. L.R. 16-5. Having reviewed the papers and considered the arguments of counsel, 23 the court DENIES Minton’s motion for summary judgment and GRANTS the Commissioner’s 24 cross-motion for summary judgment. 25 1 26 27 The challenged decision was rendered by Administrative Law Judge Brenton Rogozen (the “ALJ”) on October 13, 2010. The ALJ’s decision became final on July 31, 2012, when the Appeals Council of the Social Security Administration denied Brollier’s request for administrative review of the decision. 28 1 Case No.: 5:12-CV-05303-PSG ORDER Dockets.Justia.com 1 I. 2 BACKGROUND The following facts are taken from the decision by the ALJ and the accompanying 3 administrative record (“AR”). Minton was born September 11, 1949. 2 She has a high school 4 education, 3 and has worked as a hospital admissions clerk and health club manager. 4 She also 5 worked as a massage therapist in the same health club. 5 Minton alleges multiple conditions limit 6 her ability to work, including congestive heart failure, degenerative arthritis, bi-polar disorder, 7 depression, diabetes, visual impairments, back and knee injuries, and lightheadedness. 6 She states 8 that her disability began on March 13, 2004, but for unrelated reasons, she had not worked since 9 2002. 7 Minton sought emergency care on March 27, 2009 because she was having suicidal United States District Court For the Northern District of California 10 ideations, 8 and she first applied for supplemental security income benefits on September 14, 2009. 9 11 A. Hearing The ALJ held a hearing on September 13, 2010. 10 At the hearing, Minton appeared with 12 13 her counsel. 11 She testified about her work as a massage therapist and a health club manager prior 14 to 2002 and about the impact of her bi-polar disorder on her daily activities and on her ability to 15 work. 12 16 2 See AR at 119. 3 See id. at 29. 4 See id. 5 See id. at 59. 21 6 See id. at 134. 22 7 See id. 23 8 See id. at 366. 24 9 See id. at 29. 25 10 See id. at 29. 26 11 See id. 27 12 See id. at 50-60. 17 18 19 20 28 2 Case No.: 5:12-CV-05303-PSG ORDER 1 Vocational Expert Thomas Linvill (“Linvill”) testified that Minton’s previous work 2 consisted of two full-time jobs. She worked as a massage therapist, which has medium strength 3 requirements, and she worked as a manager/owner, which requires only sedentary activity. 13 The 4 ALJ took the case under submission. 5 B. 6 ALJ’s Findings The ALJ issued his decision on October 13, 2010. For the first step of the disability analysis, the ALJ found Minton had not been engaged in substantial gainful employment since 8 September 14, 2009. 14 At step two, he found that Minton’s bilateral knee arthritis and left leg 9 radiculopathy qualified as severe impairments under 20 C.F.R. § 416.920(c). 15 At step three, the 10 United States District Court For the Northern District of California 7 ALJ found Minton’s impairments did not meet or medically equal any of the listed impairments. 16 11 At step four, he found that Minton had the residual functional capacity (“RFC”) to perform 12 sedentary work as defined in 20 C.F.R. § 416.967(a), except being “limited to occasional pushing 13 and pulling with the lower extremities.” 17 Finally, at step five, the ALJ determined that the 14 claimant was capable of performing past relevant work as a health club manager because, 15 according to both the vocational expert’s testimony and the dictionary of occupational titles 16 (“DOT”), that job did not require work beyond sedentary exertion. Because he determined that 17 Minton was capable of performing work as a manager, an occupation in her work history, the ALJ 18 determined that Minton did not qualify for disability benefits. 19 20 21 22 23 13 See id. at 61. 24 14 See id. at 31. 25 15 See id. 26 16 See id. at 34. 27 17 See id. at 35. 28 3 Case No.: 5:12-CV-05303-PSG ORDER 1 2 II. A. 3 LEGAL STANDARDS Standard for Reviewing the Commissioner’s Decision Pursuant to 42 U.S.C. § 405(g), this court has the authority to review the Commissioner’s 4 decision denying Minton’s benefits. The Commissioner’s decision (here the underlying decision of 5 the ALJ) will be disturbed only if it is not supported by substantial evidence or if it is based upon 6 the application of improper legal standards. 18 In this context, the term “substantial evidence” means 7 “more than a scintilla but less than a preponderance – it is such relevant evidence a reasonable 8 mind might accept as adequate to support the conclusion.” 19 When determining whether substantial 9 evidence exists to support the administrative record as a whole, the court must consider adverse as United States District Court For the Northern District of California 10 well as supporting evidence. 20 Where evidence exists to support more than one rational 11 interpretation, the court must defer to the decision of the ALJ. 21 “If additional proceedings can 12 remedy defects in the original administrative proceedings, a social security case should be 13 remanded.” 22 14 B. 15 Standard for Determining Disability Disability claims are evaluated using a five-step, sequential evaluation process. In the first 16 step, the Commissioner must determine whether the claimant currently is engaged in substantial 17 gainful activity; if so, the claimant is not disabled and the claim is denied. 23 If the claimant is not 18 currently engaged in substantial gainful activity, the second step requires the Commissioner to 19 determine whether the claimant has a “severe” impairment or combination of impairments that 20 significantly limits the claimant’s ability to do basic work activities; if not, a finding of “not 21 18 22 See Moncada v. Chater, 6 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 19 See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1257. 24 20 See Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). 25 21 See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258. 26 22 Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). 27 23 See id. 28 4 Case No.: 5:12-CV-05303-PSG ORDER 1 disabled” is made and the claim is denied. 24 If the claimant has a “severe” impairment or 2 combination of impairments, the third step requires the Commissioner to determine whether the 3 impairment or combination of impairments meets or equals an impairment in the Listing; if so, 4 disability is conclusively presumed and benefits are awarded. 25 If the claimant’s impairment or 5 combination of impairments does not meet or equal an impairment in the Listing, the fourth step 6 requires the Commissioner to determine whether the claimant has sufficient “residual functional 7 capacity” 26 to perform his or her past work; if so, the claimant is not disabled and the claim is 8 denied. 27 The claimant has the burden of proving that he or she is unable to perform past relevant 9 work. 28 If the claimant meets this burden, a prima facie case of disability is established. The United States District Court For the Northern District of California 10 Commissioner then bears the burden of establishing that the claimant can perform other substantial 11 gainful work; 29 the determination of this issue comprises the fifth and final step in the sequential 12 analysis. 13 III. 14 DISCUSSION Minton argues the ALJ erred in his ultimate finding that Minton was not “disabled” as 15 defined by the Social Security Act (“SSA”), 42 U.S.C. § 401 et seq, and thus, was ineligible for 16 disability benefits. She raises three specific challenges to the ALJ’s decision: (1) the ALJ erred in 17 finding that Minton was not disabled because she could perform one of her prior occupations but 18 not the other; (2) the ALJ failed to include all of Minton’s impairments in reaching his decision; 19 24 See id. 25 See id. 20 21 22 23 26 A claimant’s RFC is what he or she can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 27 See Drouin, 966 F.2d at 1257; Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 28 See id. 24 25 29 26 27 There are two ways for the Commissioner to meet the burden of showing that there is work in significant numbers in the national economy that claimant can do: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). 28 5 Case No.: 5:12-CV-05303-PSG ORDER 1 and (3) the reasons advanced by the ALJ for failing to credit Minton’s testimony are not supported 2 by substantial evidence. 30 3 The Commissioner responds that: (1) the ALJ properly found that Minton was not disabled 4 because she could perform one of her past occupations; (2) the ALJ’s determination of Minton’s 5 residual function accounted for all of her impairments, even those which were not severe; and (3) 6 substantial evidence supports the ALJ’s credibility finding. 31 7 A. ALJ’s Consideration of Minton’s Work History 8 9 Minton first argues that the ALJ made an error of law in finding that she was not disabled because she could perform her past work as a health club manager. 32 She claims that this United States District Court For the Northern District of California 10 determination improperly classified the work by referring only to the “least strenuous portion” of 11 the job, thereby running afoul of the Ninth Circuit’s decisions in Valencia v. Heckler 33 and 12 Carmickle v. Astrue. 34 In Valencia and Carmickle, the Ninth Circuit held that if a job encompasses 13 more than one DOT code, “it is error for the ALJ to classify [it] ‘according to the least demanding 14 function.’” 35 However, in those cases, the ALJ based its determination on a single function in an 15 overall more taxing job. 16 Here, the vocational expert expressly considered two separate occupations in Minton’s 17 history: a massage therapist and a health club manager. 36 Although Minton performed these two 18 jobs at the same location, each constitutes its own separate occupation under the DOT, and the 19 vocational expert treated them as such. 37 These facts are better likened to those presented in De 20 30 See Docket No. 17. 21 31 See Docket No. 18. 22 32 See Docket No. 17. at 5. 23 33 751 F.2d 1082 (9th Cir. 1985). 24 34 533 F.3d 1155 (9th Cir. 2008). 35 Carmickle, 533 F.3d at 1166 (citing Valencia, 751 F.2d at 1086). 36 See AR 61-62. 37 See id. 25 26 27 28 6 Case No.: 5:12-CV-05303-PSG ORDER Rivera v. Astrue. 38 In that case, the claimant has previously worked as a housekeeper, both in 2 hotels (“light” work, in the DOT) and in homes (“medium” work). 39 The vocational expert treated 3 these two occupations separately, as the DOT classifies them as independent occupations. 40 Based 4 on this expert’s testimony, the ALJ found that the claimant did not qualify for disability benefits 5 because her RFC allowed her to pursue a position requiring only “light” work. Claimant appealed, 6 arguing that this determination ran afoul of Valencia, but the court found no error because the 7 vocational expert testified that the two jobs were entirely separate occupations, not just separate 8 tasks in one job. 41 Similarly, in Minton’s case, the vocational expert testified that her previous 9 work was properly classified as two distinct occupations. 42 Therefore, the ALJ’s determination that 10 United States District Court For the Northern District of California 1 she is not disabled because she can pursue one of these occupations, while the other lies outside her 11 RFC, is similarly outside Valencia’s reach and does not constitute reversible error. 12 B. ALJ’s Consideration of Minton’s Impairments 13 Minton next argues that the ALJ failed to consider all of her impairments. Specifically, 14 Minton contends that in addition to the knee arthritis and left leg radiculopathy, she suffers from 15 obesity, mental impairments, impaired cardiopulmonary functioning, and hypothyroidism, all of 16 which should be deemed “severe” for purposes of the disability analysis. 43 17 Although Minton’s argument focuses on the fact that the ALJ failed to classify these 18 impairments as severe for purposes of step two, the salient question is whether the ALJ considered 19 the impairments for purposes of the RFC determination, because the step two determination is 20 merely a threshold inquiry of whether claimants have any impairment that affect their ability to 21 Case No. CV 10-2417-SH, 2010 WL 4916241. 39 See id. at *4. 40 22 38 See id. at *5. 23 24 41 25 See id.; cf. Person v. Astrue, Case No. CV-10-02796-VBK, 2011 WL 488668 (C.D. Cal. Feb. 10, 2011). 26 42 See AR 61-62. 27 43 See Docket No. 17. at 7-9. 28 7 Case No.: 5:12-CV-05303-PSG ORDER 1 work. 44 “[T]he step two inquiry is a de minimis screening device to dispose of groundless 2 claims.” 45 If they do not, they are immediately categorized as “not disabled.” 46 At step four and 3 five, the court further analyzes these impairments to determine the claimant’s RFC and ability to 4 work. 47 If any impairment is found to be severe, the ALJ at step five must consider whether all 5 impairments, severe and non-severe, affect the claimant’s ability to work. 48 6 Here, the ALJ found that Minton suffered from two severe impairments, so the ALJ was already required to take into consideration non-severe, medically determinable impairments when 8 determining the RFC. 49 The ALJ’s decision expressly states that he considered the evidence 9 presented for and took into account the symptoms of each of the above listed conditions. 50 10 United States District Court For the Northern District of California 7 Therefore, whether or not they were deemed “severe,” the ALJ accounted for each alleged 11 condition in reaching his overall conclusion as to the claimants functional capacity, in conformance 12 with the law’s requirements. 51 13 Minton further asserts that the ALJ erred in failing to account for her mental impairments in 14 making his RFC determination. However, the ALJ spent a full page discussing the evidence 15 regarding Minton’s mental disabilities. 52 He addressed the psychological reports and consultant 16 evaluations submitted with claimant’s application, and gave specific reasons for crediting or not 17 crediting each piece of evidence. 53 Although his decision did not specifically recount or rebut 18 44 See 20 C.F.R. § 404.1520(a)(4). 19 45 See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 20 46 See id. § 404.1520(c). 21 47 See § 404.1520(e)-(f). 22 48 See Smolen, 80 F.3d at 1290. 49 See id. 50 See AR 35-38 51 See Smolen, 80 F.3d at 1290. 52 See AR 37. 53 See id. 23 24 25 26 27 28 8 Case No.: 5:12-CV-05303-PSG ORDER 1 each piece of the record referencing Minton’s mental ailments, such a detailed recitation is not 2 required to substantiate his decision. He considered the expert reports submitted and read them in 3 context of the other exhibits presented; nothing more is required when reviewing under this 4 standard. 5 C. ALJ’s Consideration of Minton’s Testimony 6 Finally, Minton argues that the ALJ improperly rejected Minton’s own testimony regarding her impairments. When assessing the subjective complaints of the claimant, the ALJ must make 8 credibility findings, which must be sufficiently specific to make clear to the individual and any 9 reviewers the weight the adjudicator gave to the claimant’s statements and the reasons for that 10 United States District Court For the Northern District of California 7 weight. 54 If the ALJ's credibility finding is supported by substantial evidence in the record, the 11 court may not engage “in second-guessing.” 55 In making this finding, the ALJ may employ 12 “ordinary techniques of credibility evaluation, such as considering claimant’s reputation for 13 truthfulness and inconsistencies in claimant’s testimony.” 56 14 Minton’s reply brief lists three reasons that the ALJ’s credibility determination should be 15 overturned. First, she alleges that the ALJ “den[ied] Ms. Minton’s credibility based on her 16 poverty,” in violation of Ninth Circuit law. 57 This allegation appears to derive from the ALJ’s 17 findings that Minton failed to produce records showing regular contact with physicians and the lack 18 of attempts to obtain relief by maintaining a regular medication regime. 58 There is substantial 19 evidence in the record to support the argument that Minton has been in dire financial straits for 20 many years, 59 such that her poverty may indeed be the reason for her sporadic medical care. 21 22 54 See SSR 96-7p. 55 23 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citing Morgan v. Commissioner of Social Sec. Admin, 169 F.3d 595, 600 (9th Cir. 1995)). 24 56 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 25 57 See Docket No. 19 at 5. 26 58 See AR at 37. 27 59 See, e.g., AR 52-62, 120, 342-43. 28 9 Case No.: 5:12-CV-05303-PSG ORDER 1 However, these were but two of the eleven reasons given by the ALJ for not giving the claimant’s 2 testimony full weight. This alone, therefore, would not support a reversal. 3 The ALJ’s other reasons for discrediting Minton’s testimony do not relate to her poverty 4 and withstand scrutiny on other grounds. Minton takes issue with the ALJ’s conclusions that her 5 complaints are inconsistent and unsupported by the medical records. She points to one specific 6 instance where the commissioner’s brief finds fault with Minton’s denial of heart disease, given 7 that her disability application includes a complaint of congestive heart failure. However, as the ALJ 8 points out, there is little in the medical record to substantiate Minton’s claim of congestive heart 9 failure. 60 Medical reports describe her heart as “almost normal,” and her cardiopulmonary stress United States District Court For the Northern District of California 10 test did not reveal any significant cardiac problems. 61 Based on the evidence before him, the ALJ 11 acted within his discretion in giving the claimant’s testimony “little weight” in his assessment of 12 her cardiopulmonary problems. 62 The ALJ also relied on the fact that the many physicians that 13 Minton has seen for her complaints had failed to locate objective, medically identifiable issues that 14 would generate her symptoms; instead, several doctors who prescribed treatment for Minton relied 15 on her self-reports. 63 The record substantiates this finding. 64 Finally, the ALJ notes that he relied 16 on the observations of administrative personnel who interacted with Minton throughout the course 17 of her social security application, including his own observations when Minton came into court for 18 a hearing. 65 These are all “ordinary techniques of credibility evaluation,” such that the court finds 19 no grounds for reversal. 66 20 60 See AR at 33-34. 21 61 See id. 22 62 See id. 23 63 See AR 35-36. 24 64 See, e.g., AR 212-16, 289-291. 65 See AR 35-36 25 26 66 27 28 Minton acknowledges in her motion for summary judgment that despite his misgivings about her credibility, the ALJ assigned Minton a minimal RFC, such that any change in the credibility determination would be unlikely to sway the overall analysis. See Docket No. 17 at 10. 10 Case No.: 5:12-CV-05303-PSG ORDER 1 2 3 IV. CONCLUSION Minton’s motion for summary judgment is DENIED and the Commissioner’s cross-motion for summary judgment is GRANTED. The Clerk shall close the file. 4 5 IT IS SO ORDERED. 6 Dated: October 3, 2013 7 _________________________________ PAUL S. GREWAL United States Magistrate Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Case No.: 5:12-CV-05303-PSG ORDER
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