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
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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
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.
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)
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
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"
For the foregoing reasons, the Court SHOULD GRANT Defendant's
motion for summary judgment and DENY Plaintiff's motion for
IT IS SO ORDERED.