The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income under Title XVI of the Act.*fn1 (Dkt. No. 21.) In plaintiff's motion for summary judgment, plaintiff contends that the Administrative Law Judge ("ALJ") erred by: (1) rejecting or discounting the medical opinion of plaintiff's treating physician, Gordon Lui, M.D., without providing specific and legitimate reasons for doing so; (2) discounting plaintiff's own testimony regarding the disabling nature of his impairments without providing clear and convincing reasons for doing so; (3) rejecting the third-party statements of plaintiff's mother, Joanne Jones, without providing legally sufficient reasons for doing so; and (4) erred in questioning the vocational expert and relying on the vocational expert's testimony. The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 22.) For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.
Plaintiff was 40 years old at the time of the ALJ's decision denying plaintiff's applications for benefits and he has a high school level education. (Administrative Transcript ("AT") 15, 403.) In terms of previous employment, plaintiff drove a tractor-trailer, also referred to as an "18-wheeler," for 15 years and was laid off in 2003. (AT 404-05, 417.) Although plaintiff apparently attempted to find work as a driver or working in a grocery store, he has not been hired. (AT 15.) Generally, plaintiff's ailments relate to claimed degenerative problems and pain in his lower back and the radiation of that pain.
On December 7, 2005, plaintiff applied for Disability Insurance Benefits and Supplemental Security Income benefits, alleging a disability onset date of October 1, 2002. (AT 60-62.) The Social Security Administration denied plaintiff's applications initially and upon reconsideration. (AT 34-35, 372-73.) Plaintiff filed a request for a hearing, and the ALJ conducted a hearing regarding plaintiff's claims on September 28, 2008. (AT 39, 398-429.)
Plaintiff, who was represented by counsel at the hearing, testified at the hearing. A vocational expert ("VE") also testified at the hearing. Plaintiff's mother, Joanne Jones, also provided a third-party witness statement regarding observations of plaintiff's pain and functional limitations on a form entitled "Function Report -- Adult -- Third Party." (AT 93-100.)
In a decision dated August 21, 2007, the ALJ denied plaintiff's
application. (AT 13-25.) In reliance on the VE's testimony, the ALJ
determined that plaintiff could still perform other work as an order
clerk and surveillance systems monitor, which are jobs that exist in
significant numbers in the regional or national economies.*fn3
(AT 24-25.) The ALJ's decision
became the final decision of the Commissioner when the Appeals Council
denied plaintiff's request for review. (AT 5-8.) Plaintiff
subsequently filed this action.
B. Summary of the ALJ's Findings
The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since October 1, 2002, the alleged date of onset. (AT 15.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "Disk [sic] degeneration at L3-4, L4-5, and L5-S1; annular*fn4 tear at L4-5, disk [sic] protrusion at L5-S1, and facet arthrosis*fn5 at L4-5. Disk [sic] degeneration in his cervical and thoracic spine." (AT 15.) At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (AT 19.)
The ALJ further determined that although plaintiff has the residual functional capacity ("RFC") to perform "light work," plaintiff's ability to work at that level is eroded to some degree and, accordingly, plaintiff: can only occasionally perform activities such as climbing ladders, ropes, and scaffolds; can only occasionally engage in stooping and crouching; and is limited in reaching in all directions, including overhead. (AT 20.) In arriving at this RFC, the ALJ considered, but accorded "minimal weight" to, the medical opinion of plaintiff's treating physician, Gordon Lui, M.D. (See AT 20; see also AT 18-19.) The ALJ also found that plaintiff was not a credible witness, stating that plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely credible." (AT 22.) The ALJ also accorded "minimal weight" to Joanne Jones's third-party function report. (AT 23.)
At step four, the ALJ found that, considering plaintiff's RFC and the VE's testimony, plaintiff is unable to perform past relevant work as a truck driver. (AT 23.) The ALJ concluded at step five that "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." (AT 24.) Specifically, the ALJ found that, based on plaintiff's RFC and the VE's testimony, plaintiff could work as an order clerk or a surveillance systems monitor. In regards to the position of order clerk, the ALJ found that there are "4,000 positions locally, 84,000 in California, and 570,000 in the United States." (AT 24.) As for the position of surveillance systems monitor, the ALJ found that there are "6,700 such jobs in the United States, 508 in California, and 166 locally." (AT 24.) Accordingly, the ALJ found that plaintiff was not disabled.
The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009).
This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
As noted above, plaintiff alleges that the ALJ erred by: (1) rejecting or discounting the medical opinion of plaintiff's treating physician, Dr. Lui, without providing specific and legitimate reasons for doing so; (2) discounting plaintiff's subjective testimony as not entirely credible without providing clear and convincing reasons for doing so; (3) rejecting Joanne Jones's third-party statements without providing legally sufficient reasons for doing so; and (4) erred in ...