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Mary Ann Salmon v. Michael J. Astrue

March 27, 2012


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Plaintiff Mary Anne*fn1 Salmon ("Plaintiff") brings this action to obtain review of the Social Security Administration Commissioner's December 4, 2009 final decision denying her claim for 14 disability insurance benefits. Plaintiff seeks an order reversing the final decision of the Commissioner and awarding benefits, or alternatively remanding for a new hearing. Presently 16 before the Court are the parties' cross-motions for summary judgment. Having considered the 17 parties' papers and the administrative record, the Court DENIES Plaintiff's motion for summary 18 judgment, ECF No. 13 (Pl.'s Mot.), and GRANTS Defendant's cross-motion for summary 19 judgment, ECF No. 16 (Def.'s Cross-Mot.).

I.Procedural and Factual Background

This is the second time Plaintiff's application for disability insurance benefits has been judicially reviewed. The facts are taken from the administrative record.

Plaintiff was born in 1943 and has more than a high school education. AR 250-51.

Plaintiff worked for Sun Microsystems as a marketing coordinator until November 2002, when she 25 was laid off. AR 62, 251. Her past work experience includes employment as an office manager, leasing agent, and marketing coordinator. AR 103, 335. Plaintiff alleges she was disabled by, 2 among other things, degenerative disk disease, chronic back pain, anxiety, depression, and post-3 traumatic stress disorder resulting from an automobile accident in May 2003. AR 312, 423.

Plaintiff originally filed an application for disability insurance benefits on September 8, 2003. AR 51-54. After holding a hearing, Administrative Law Judge ("ALJ") Rogozen denied Plaintiff's application on October 4, 2005, finding that Plaintiff was not disabled. AR 21. On 8 judicial review, Judge Fogel affirmed the ALJ's decision denying disability benefits. Salmon v. Astrue (Salmon I), Case No. 06-CV-2111-JF (N.D. Cal. Mar. 29, 2007).

Plaintiff appealed Judge Fogel's decision to the Ninth Circuit, which reversed and remanded. Salmon v. Astrue (Salmon II), 309 F. App'x 113 (9th Cir. Jan. 16, 2009). A Ninth Circuit panel found that the ALJ did not err in weighing the medical testimony concerning Salmon's asserted physical impairment, and specifically that the ALJ did not err in discounting the 14 testimony of Plaintiff's physician, Dr. Ronald Greenwald, M.D. Id. at 115. However, a majority 15 of the panel found that the ALJ erred by: (1) improperly weighing the evidence regarding

Plaintiff's claim of mental impairment, id. at 114, and (2) improperly rejecting Plaintiff's pain 17 testimony. Id. at 115. Accordingly, the majority "reversed and remanded for reconsideration of 18 the determination of Salmon's mental capacity with instructions to accept Salmon's pain testimony 19 as true" because "[t]he level of her pain may have a bearing on her depression and overall mental 20 problems." Id. at 116.

Plaintiff alleges a disability onset date of May 5, 2003. AR 51. 5

On December 9, 2009, after a hearing and upon reconsideration of the entire record, the ALJ again denied disability insurance benefits. AR 320. Specifically, the ALJ weighed the 23 evidence regarding Plaintiff's mental impairment and found that:

[Plaintiff] was limited to lifting and carrying no more than 10 pounds occasionally and no more than objects of minimal weight frequently. The [Plaintiff] was also limited to standing and/or walking no more than 2 hours total in an 8-hour workday, and sitting no more than 6 hours total in an 8-hour workday. The [Plaintiff's] anxiety, depression, and chronic pain combined to result in mild restriction of her ability to understand, remember, and carry out the highly complex and detailed tasks characteristic of skilled work; mild restriction on her ability to maintain the attention and concentration necessary to perform the highly complex and detailed tasks characteristic of skilled work; and mild restriction of her ability to cope with the work stress attendant to skilled work.

AR 311. Thus, the ALJ found that Plaintiff was capable of performing her past relevant 3 work as an office manager, as this work did not require the performance of work-related 4 activities precluded by Plaintiff's residual functional capacity. AR 319. As such, the ALJ 5 concluded that Plaintiff was not disabled at any time between May 5, 2003, the alleged 6 onset date, and December 31, 2005, the date Plaintiff was last insured. AR 319.

Plaintiff sought review of the ALJ's 2009 decision before the Appeals Council, but the Appeals Council declined to review the decision. AR 289-291. Plaintiff filed the instant complaint 9 on August 18, 2011. ECF No. 1. Plaintiff filed her motion for summary judgment on February 15, 2011. ECF No. 13. Defendant filed his cross-motion for summary judgment on April 15, 2011.

ECF No. 16. Plaintiff filed her reply on April 28, 2011. ECF No. 17.

II.Legal Standards

A.Standard for Reviewing the ALJ Decision

The Court has authority to review the ALJ decision pursuant to 42 U.S.C. § 405(g). The Court may only disturb the ALJ decision if it is unsupported by substantial evidence in the record 16 as a whole or if it is not an application of the proper legal standard. 42 U.S.C. § 405(g); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). "Substantial evidence is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion." Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the evidence supports more than one rational interpretation, 20 the Court must uphold the ALJ's conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

gainful activity by reason of any medically determinable physical or mental impairment which can 25 be expected to result in death or which has lasted or can be expected to last for a continuous period 26 of not less than twelve months." 42 U.S.C. § 423(d)(1)(A) (emphasis added). The impairment 27 must also be so severe that a claimant is unable to do her previous work, and cannot "engage in any 28

B.Standard for Determining Disability

The Social Security Act defines disability as the "inability to engage in any substantial other kind of substantial gainful work which exists in the national economy," given her age, 2 education, and work experience. 42 U.S.C. § 423(d)(2)(A). "The claimant carries the initial 3 burden of proving a disability." Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). If the 4 claimant proves a prima facie case of disability, showing that (1) she is not presently engaged in a 5 gainful activity, (2) that her disability is severe, and (3) that she cannot perform work she has done 6 in the past, then the Commissioner has the burden of establishing that she can perform "a 7 significant number of other jobs in the national economy." Thomas v. Barnhart, 278 F.3d 947, 955 8

The ALJ evaluates Social Security disability cases using a five-step evaluation process. 20 C.F.R. § 404.1520. (9th Cir. 2002). 9

1. The ALJ must first determine whether the claimant is presently engaged in substantially gainful activity. 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled; otherwise the evaluation proceeds to step two.

2. The ALJ must determine whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled; otherwise the evaluation proceeds to step three.

3. The ALJ must determine whether the claimant's impairment or combination of impairments meets or medically equals the requirements of the Listing of Impairments, 20 C.F.R. § 404, subpart P, app. 1. 20 C.F.R. § 404.1520(d). If so, the claimant is disabled; otherwise the analysis proceeds to step four.

4. The ALJ must determine the claimant's residual functional capacity despite limitations from the claimant's impairments. 20 C.F.R. § 404.1520(e). If the claimant can still perform work that the individual has done in the past, the claimant is not disabled. If he cannot perform the work, the evaluation proceeds to step five. 20 C.F.R. § 404.1520(f).

5. In this step, the Commissioner has the burden of demonstrating that the claimant is not disabled. The Commissioner must show that the claimant can perform assumed that Plaintiff had a severe combination of impairments, and determined that Plaintiff's 6 combination of impairments did not meet or medically equal the requirements of the Listing of 7

Plaintiff's residual functional capacity, found that Plaintiff could perform her past work, and 9 concluded that Plaintiff was not disabled. Plaintiff argues that the ALJ improperly: (1) failed to 10 credit Plaintiff's pain testimony as true when determining Plaintiff's physical impairment; (2) rejected an evaluating physician's testimony concerning Plaintiff's mental impairment without specific and legitimate reasons; and (3) improperly weighed the evidence in determining that 13 Court addresses these arguments in turn. 15

The ALJ "adopt[ed] the exertional limitations defined in [his] October 5, 2005 [decision],

17 and incorporated by reference the explanation and rationale contained in that decision for its 18 finding that the claimant retained an exertional residual functional capacity for a full range of 19 sedentary work." AR 311. 20

by adopting his prior finding regarding Plaintiff's exertional residual functional capacity. Pl.'s Mot. 7. Specifically, Plaintiff argues that the ALJ was obligated to accept Plaintiff's testimony 23 regarding her physical limitations "on sitting, standing, and walking," as true because the ALJ was 24 obligated to accept Plaintiff's pain testimony as true. Id. Plaintiff asks the Court to overturn the ALJ's decision, because the ALJ simply adopted his previous rulings on Plaintiff's physical 26 impairment without reevaluating Plaintiff's physical impairment in light of Plaintiff's pain 27 testimony. See AR 311.

some substantial gainful work in the national economy, considering a claimant's age, education, and vocational background. 20 C.F.R. § 404.1520(g)(1).


In this case, the ALJ found that Plaintiff was not engaged in substantially gainful work, Impairments. Accordingly, at step four of the five step evaluation process, the ALJ determined

Plaintiff's residual function capacity did not preclude her from working as an office manager. The A.The Scope of the Ninth Circuit's Remand Was Limited to Mental Impairment Plaintiff contends that the ALJ failed to follow the Ninth Circuit's instructions on remand undersigned to issue a new decision re-evaluating the severity of the claimant's mental 3 impairments and the issue of whether the claimant suffered from any mental disability . . . and 4 accepting the claimant's pain testimony as true in evaluating the severity of her mental 5 impairments." AR 307. The ALJ stated that: "The specific issue is whether a reconsideration of 6 the severity of the claimant's psychiatric impairments and chronic pain -- when considered in 7 conjunction with the exertional limitations contained in the prior ALJ decision and specifically 8 upheld by the United States District Court and the Ninth Circuit Court of Appeals -- would reduce 9 her residual functional capacity enough to prevent the claimant from performing her past relevant 10 work or adjusting [sic] other work which exists in significant numbers in the national economy."

AR 308.

The ALJ, by contrast, interpreted the remand as follows: "the Ninth Circuit directed the remand, and finds that the ALJ interpreted the scope of the remand correctly. The ALJ's reading 14 of the scope of the remand comports with ...

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