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United States District Court, N.D. California

July 26, 2004.

PETER M. COOPER, Plaintiff,
JO ANNE B. BARNHART, Commissioner, Social Security Administration, Defendant.

The opinion of the court was delivered by: MARTIN JENKINS, District Judge



Before the Court are cross-motions for summary judgment in a Social Security appeal brought by Plaintiff Peter M. Cooper and Defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration. These motions require the Court to determine if (1) substantial evidence exists in support of the Administrative Law Judge's decision, and (2) correct legal standards were applied. For the reasons set forth below, the Court SHOULD GRANT Defendant's motion and DENY Plaintiff's motion.


  On March 17, 2000, Plaintiff filed an application for Disability Insurance Benefits under Title II of the Social Security Act. The Social Security Administration ("SSA") denied the initial application on May 30, 2000 and upon reconsideration on July 3, 2000. Plaintiff appeared, pro se, before an Administrative Law Judge ("ALJ") on March 15, 2000. After the hearing, the ALJ denied Plaintiff's application concluding that Plaintiff was not disabled. The ALJ's decision became final when the Appeals Council declined Plaintiff's request for review on May 17, 2002. Plaintiff then filed this action for judicial review pursuant to 42 U.S.C. § 405(g). Plaintiff contends that (1) the ALJ's findings and conclusions are not supported by substantial evidence, and (2) incorrect legal standards were applied in the determination of the ultimate issues against Plaintiff.


  Plaintiff was 56 years old at the time of the hearing on March 15, 2001. (Transcript ("TR"), 38). He was educated in England, but left school at the age of fifteen to learn a trade as a machinist. (Tr. 51). Plaintiff currently resides in San Francisco. (Tr. 59). From January 1992 through November 27, 1999, he was employed as owner and manager of a bar. (Tr. 95). On August 1, 1995, Plaintiff was involved in an automobile accident. He continued to work until November 27, 1999, the day plaintiff sold the bar. Plaintiff filed for disability insurance benefits on March 17, 2000, alleging inability to work since November 27, 1999 due to brain injury and seizures resulting from the 1995 accident. Medical treatment records from Kaiser Permanente indicated that Plaintiff had a post-traumatic seizure disorder that was being treated with Dilantin.*fn1 (Tr. 136).

  On November 5, 1999, Kenneth Ip, M.D. performed an operation on Plaintiff's left eye to remove a cataract. There were no complications (Tr. 127), and no further difficulties with the eye are indicated in the records.

  Tania Shertock, Ph.D., performed a psychological evaluation of Plaintiff in April 2000. She concluded that Plaintiff had no limitations that would have precluded him from performing his past work. Dr. Shertock noted that Plaintiff was able to relate well in the interview and would be able to appropriately interact with supervisors and co-workers in a job setting. (Tr. 143).

  Edward Gallagher, M.D., a non-examining State agency physician, reviewed the records and concluded that Plaintiff had no physical limitations (Tr. 149-156) except for a need to avoid exposure to hazards such as machinery and heights. (Tr. 153).

  Robert E. Lee, M.D., a non-examining State agency psychiatrist, reviewed the record and concluded that Plaintiff had no severe mental impairment. (Tr. 144).

  At the administrative hearing, Plaintiff testified that since the automobile accident several years ago he has had seizures once every six months, lasting about five minutes and characterized by shaking and passing out. (Tr. 16). Plaintiff stated that he is deaf in the left ear and that he has problems using his left elbow for lifting. (Tr. 16).

  Plaintiff complained of having recurrent problems with dizziness. He alleges suffering on a daily basis due to issues with his equilibrium, stumbling and the inability to walk a straight line. (Tr.16). Yet, he admitted to having no difficulty sitting, walking "a lot," swimming, going to the theater, working out, and lifting between 20 and 50 pounds. (Tr. 18). The Vocational Expert indicated that the above-mentioned activities would be tantamount to work at a "medium exertional level." (Tr. 21). He further testified that Plaintiff's employment as either a bartender or manager was "light exertional work." Therefore, the ALJ reasoned that any claimant who has the ability to perform such activities retains the residual functional capacity to perform a wide range of work, at least at the "light exertional level" as defined in 20 C.F.R. § 404.1567.


  Summary judgment is appropriate if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Court may disturb the Commissioner's final decision "only if it is based on legal error or if the fact findings are not supported by substantial evidence." Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). Substantial evidence is more than a mere scintilla, but less than a preponderance. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "[C]onsidering the entire record, [substantial evidence] is relevant evidence which a reasonable person might accept as adequate to support a conclusion." Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993). Determinations of credibility, resolution of conflicts in medical testimony and all other ambiguities are to be resolved by the ALJ. Magallanes, 881 F.2d at 750. The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995).

  To qualify for Title II and Title XVI benefits, a claimant must establish a medically determinable physical or mental impairment that is expected to result in death or last for a continuous period of at least twelve months that prevents him from engaging in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). In addition, to establish a disability, an individual "must show that he is precluded from engaging not only in his `previous work,' but also from performing `any other kind of substantial gainful work that exists in the national economy.'" Matthews, 10 F.3d at 680; 42 U.S.C. § 423(d)(2)(A) and 1382c(a)(3)(B).


  I. The ALJ's Decision

  To determine whether a claimant is disabled and entitled to benefits, the Commissioner of Social Security conducts a five-step sequential inquiry. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. Under the first step, the ALJ considers whether the claimant is currently engaged in substantial gainful activity. If not, the second step asks whether the claimant has a severe impairment. In step three, the ALJ determines whether the claimant has a condition which meets or equals the conditions outlined in the Listings of Impairments in Appendix 1, Subpart P, Regulations No. 4. 20 C.F.R. § 404.1520. If the claimant does not have such a condition, step four asks whether the claimant has the Residual Functional Capacity to perform his past relevant work. If not, in step five, the ALJ considers whether the claimant has the ability to perform other work which exists in substantial numbers in the national economy. 20 C.F.R. § 404.1520(b)-(f); 404.920(b)-(f).

  The ALJ considered the first four steps of the five-step sequential process and found that Plaintiff was not disabled. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity because he had not worked since November 27, 1999, the alleged onset date of disability. (Tr. 18). At step two, he found Plaintiff to have severe medical impairments such as seizures and hearing loss. At step three, he found plaintiff's impairments did not meet or equal the listed impairments located in the Listing of Impairments, Appendix 1, thus Plaintiff could not be labeled as conclusively disabled. See Lester v. Chater, 81 F.3d 826 (9th Cir. 1995). Finally, the ALJ found that Plaintiff had the residual functional capacity to perform his past relevant work as a bartender and bar manager and therefore was not disabled. (Tr. 18-19). As a consequence, he deemed it unnecessary to address step five.*fn2

  A. Other Injuries (Back Impairment, Ankle, and Brain Trauma)

  Plaintiff argues that the ALJ erred in finding that he could perform his past work, because he suffered a disabling back impairment in his 1995 automobile accident. No medical evidence or evidence of any sort supports this argument. To the contrary, the first allegation of any back impairment arose in the February 2002 letter from the nurse practitioner, Mr. Hansen, almost one year after the ALJ's decision. (Tr. 162). Even Mr. Hansen did not allege that this condition disabled Plaintiff prior to June 2001. (Tr. 162). The facts clearly indicate that Plaintiff did not stop working until November 27, 1999, when he got divorced and therefore had to sell his bar. (Tr. 42, 94).

  Additionally, Plaintiff claims he has not been able to effectively ambulate since the 1995 accident (Plaintiff's brief at 7) due to his ankle being caught in the bumper. (Tr. 140). The intake notes for Kaiser Permanente reflect Plaintiff's contention that he is unable to stand for long periods of time. (Tr. 114). However, Plaintiff testified at the hearing that he had no difficulty sitting and no difficulty standing unless he became dizzy. (Tr. 47-48). Additionally, he claimed to have no problems walking and conceded that he likely could lift twenty pounds, if not fifty. (Tr. 47-48). Furthermore, Plaintiff states that he is able to do household chores such as sweeping and washing dishes, and still enjoys hobbies such as attending movies with friends. (Tr. 49). Applying plaintiff's capabilities to the legal standard for physical exertion requirements, 20 C.F.R. § 404.1567(b) indicates that Plaintiff has the residual functional capacity to perform "light work," a category within which bartending falls.

  In the Psychological Assessment Report by Dr. Shertock, Plaintiff's account of the 1995 accident includes being "hit by a car and dragged about a block." (Tr. 140). He asserts that he suffers from brain trauma as a result of his head being "bashed" against the sidewalk. (Tr. 140). Plaintiff also points to being hit in the head by an air bag in 2001 as a contributing factor to his brain trauma. (Tr. 157). After a coma which lasted for three to four days succeeding the accident, Plaintiff began rehabilitation but started to have seizures and was prescribed Dilantin. (Tr. 140). His post-traumatic seizure disorder was "well-controlled on Dilantin" when he took his prescribed medication and refrained from alcohol abuse. (Tr. 136). A condition that is controllable with medication is not a basis for a disability award. Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983). This is consistent with the ALJ's finding that Plaintiff's seizures were effectively countered by Dilantin, and consequently did not disable Plaintiff from performing his past work of operating his bar. Furthermore, Plaintiff submitted no medical evidence that his seizures prevented him from engaging in his past work. Plaintiff's arguments do not provide the Court a basis to find that the ALJ's decision is not based on substantial evidence.

  B. Combination of Impairments

  In his decision at Step Three, the ALJ concluded that Plaintiff did not suffer from an impairment or a combination of impairments equal to one listed in Appendix 1, Subpart P, Regulations No. 4. 20 C.F.R. § 404.1520. Plaintiff argues that the ALJ's summary treatment of the issue merits remand However, Plaintiff does not describe how his combination of impairments met or equaled a listed impairment. He does not identify which listed impairment in the Appendix 1 Listing of Impairments he allegedly met or equaled. An ALJ is not required, as a matter of law, to state why a claimant does not satisfy every different section of the Listing of Impairments. Gonzales v. Sullivan, 914 F.2d 1197, 1200-01(9th Cir. 1990) (rejecting assertion that ALJ failed to explain why claimant did not satisfy the Listing of Impairments). Accordingly, this argument fails.

  C. Further Development of Record

  The Ninth Circuit provides the ALJ the discretion to discredit Plaintiff's subjective complaints if they are unsupported by, or not reasonably related to, objective evidence. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Here, Plaintiff concedes that his complaints of physical limitation were not related to the objective medical evidence, but argues this is only the case because the ALJ failed to obtain material medical records dating back to his 1995 car accident. (Plaintiff's Memo at 9). As a consequence, Plaintiff maintains that the ALJ breached his heightened duty to fully develop the record. However, Plaintiff alleged that his disability commenced in November 1999, when he divorced, sold his business and retired. He did not allege that he was disabled as a result of the 1995 accident. Thus, any 1995 medical records were immaterial to Plaintiff's disability claim. The ALJ had no obligation to obtain immaterial records dated several years before Plaintiff's alleged disability onset and several years before he retired. SSA generally will obtain medical evidence for the period beginning twelve months prior to the date of application, unless, as in the present case, the claimant alleges a disability onset more than twelve months before the filing of the application. 20 C.F.R. § 404.1512(d). Thus, the ALJ fulfilled his legal duty to develop the record.

  Plaintiff's assertions that the ALJ should have sought opinions of physicians and testimony from his ex-spouse (Plaintiff's Memo at 12) also have no legal basis.*fn3 Plaintiff had the burden of proving that he could not perform his previous work. Sanchez v. Secretary of HHS, 812 F.2d at 511. This was not the ALJ's burden. There is no evidence in the record establishing that an ability to drive is a requirement of Plaintiff's previous occupations as a bartender or bar manager, despite Plaintiff's current suggestion to this effect. (Plaintiff's Memo at 12). Moreover, if Plaintiff's ex-spouse had any relevant testimony to present, nothing prevented Plaintiff from presenting it. Neither was the record "inadequate" to determine whether Plaintiff was or was not disabled. Thus, there was no need for the ALJ to recontact Plaintiff's treating physician. Plaintiff's reliance on 20 C.F.R. § 404.1512(e) therefore is misplaced. See (Plaintiff's Memo at 12).

  D. "Sentence Six" Remand for New Evidence Consideration

  Plaintiff further contends that remand is proper in light of "new evidence."*fn4 Pursuant to 42 U.S.C. § 405(g), a claimant seeking remand must establish that there is new evidence which is "material," and that there is "good cause" for the failure to incorporate such evidence into the record in a prior proceeding. See Clem v. Sullivan, 894 F.2d 332 (9th Cir. 1990). Plaintiff suggests the new evidence indicates that he suffers from issues regarding his right eye (Reply at 3), his spine and his right leg. (Reply at 10).

  In Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 512 (9th Cir. 1987), the court held that to meet the "materiality" requirement for new evidence, the evidence presented must relate to a condition or injury that was "at issue at the hearing" before the ALJ. In this case, at issue before the ALJ were primarily seizures and dizziness, not injuries to Plaintiff's right eye, spine or right leg. As the court noted in Sanchez, these new conditions "would be material to a new application, but not probative of his condition at the hearing." Id. Accordingly, the Court rejects Plaintiff's "new evidence" contention.


  For the foregoing reasons, the Court SHOULD GRANT Defendant's motion for summary judgment and DENY Plaintiff's motion for summary judgment.


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