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Sau Ming Tai v. Carolyn W. Colvin*Fn1

March 26, 2013

SAU MING TAI, PLAINTIFF,
v.
CAROLYN W. COLVIN*FN1 , ACTING COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



*E-FILED: March 26, 3013*

NOT FOR CITATION

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [Re: Docket No. 21, 24]

United States District Court For the Northern District of California

In this Social Security action, plaintiff Sau Ming Tai ("Plaintiff" or "Tai") appeals a final decision by the Commissioner of Social Security Administration ("Defendant" or "Commissioner") 16 denying her application for Social Security disability insurance benefits. Presently before the court 17 are the parties' cross-motions for summary judgment. The matter is deemed fully briefed and 18 submitted without oral argument. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties 19 have expressly consented that all proceedings in this matter may be heard and finally adjudicated by 20 the undersigned. Upon consideration of the moving papers, and for the reasons set forth below, 21 plaintiff's motion for summary judgment is denied and defendant's motion for summary judgment is 22 granted. 23

I. BACKGROUND

Sau Ming Tai was 60 years old when the Administrative Law Judge ("ALJ") rendered the 25 decision under review in this action. Administrative Record ("AR") 148, 16, 18. Her prior work 26 27 experience includes working as the owner of a restaurant for 24 years, from March 1983 to June, 2 2007. AR 174. As the owner of her restaurant, she worked 12 hours per day, six days a week. AR 174. She managed the daily grocery shopping, acted as the main server, administered payroll, and 4 served as a cashier. AR 174. Her role also included book keeping, light cooking, and cleaning. AR 5

In 2005, Plaintiff was diagnosed with breast cancer. She underwent chemotherapy and 7 radiation treatments that year. She returned to work, but testified that, for the first six months after 8 her treatment, she only worked part-time. AR 45. In June 2007, she sold the restaurant. AR 41. 9 174. 6

She worked at her restaurant until the day she sold it, and she worked for the new owner for a 10 couple days. AR 41, 46.

Plaintiff filed an application for Social Security disability benefits, claiming to be disabled as and side effects from her cancer 13 treatment, including fatigue, troubles breathing, lung damage, memory problems, dry eyes, and dry 14 mouth. AR 173. 15 16 hearing before an ALJ. In a decision dated June 14, 2010, the ALJ found that Plaintiff had not been 17 under a disability within the meaning of the Social Security Act from June 30, 2007 through the date 18 of the decision. AR 12. The ALJ evaluated Plaintiff's claim of disability using the five-step 19 sequential evaluation process for disability required under federal regulations. See 20 C.F.R. § 20 404.1520 (2007). At step one, he found that Tai had not engaged in substantial gainful activity 21 since June 30, 2007. AR 14. At step two, he found that Plaintiff did not have a severe physical or 22 mental medically determinable impairment under 20 C.F.R. 404.1520(c), and was therefore not 23 disabled. AR 15. 24

Although the ALJ found that Plaintiff was not disabled at step 2, he nonetheless engaged in 25 an alternative analysis to assess some functional limitations noted by the Disability Determination 26 Services reviewers and the consultative examiner. In the alternative analysis, the ALJ examined the 27 following impairments: status post breast cancer; status post mastectomy; status post chemotherapy 28 with resultant chronic neck pain; finger numbness secondary to chemotherapy; and chronic dry eyes 12 of June 30, 2007 based on carpal tunnels in her hands and wrists,

Plaintiff's claim was denied initially and upon reconsideration. She then filed a request for secondary to chemotherapy. AR 15. The ALJ stated that these impairments could "arguably" cause 2 more than minimal limitations in Plaintiff's ability to perform basic work activities. AR 15. 3

Even under the alternative analysis, the ALJ found that Plaintiff was not disabled. AR 15. Plaintiff 4 did not allege that she had an impairment or combination of impairments that met or medically 5 equaled one of the listed impairments in 20 C.F.R. 404, Subpart P. At step 3 of the alternative 6 analysis, however, the ALJ considered whether the severity of Plaintiff's impairments, separately or 7 in combination, met or medically equaled listing sections 1.02 (major joint dysfunction), 1.04 8 (disorders of the spine), 3.01 (respiratory system impairments), or 13.01 (malignant neoplastic 9 diseases). AR 15. He found that they did not. AR 15. 10

capacity ("RFC") to perform a wide range of light work, and therefore was not disabled under the 12 but must periodically alternate standing and sitting every one hour to relieve pain or discomfort. AR 14 Finally, at step five of the alternative analysis, the ALJ referred to the opinion of Vocational

Expert ("VE") Mary R. Ciddio, who testified at the hearing. AR 18. The ALJ found that Plaintiff 17 was capable of performing her past relevant work as a food service manager and a short order cook 18 as those jobs are generally performed in the national economy. AR 18. The ALJ also found that 19 that Plaintiff was capable of performing her past relevant work as a chef and Chinese food preparer, 20 as she had performed those positions. AR 18. 21 22 the final decision of the Commissioner. Plaintiff now seeks judicial review of that decision. 23

Pursuant to 42 U.S.C. 405(g), this court has the authority to review the Commissioner's 25 decision to deny benefits. The Commissioner's decision will be disturbed only if it is not supported 26 by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. 27 521,523 (9th Cir. 1995). In this context, the term "substantial evidence" means "more than a mere

At step 4 of the alternative analysis, the ALJ found that Plaintiff had the residual functional Social Security Act. AR 16. The ALJ found that Plaintiff was capable of light exertional activity,

The Appeals Council denied plaintiff's request for review, and the ALJ's decision became

II. LEGAL STANDARD

Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 28 scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might 2 accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin v. 3 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence 4 exists to support the Commissioner's decision, the court examines the administrative record as a 5 whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where 6 evidence exists to support more than one rational interpretation, the court must defer to the decision 7 of the Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258. 8

Plaintiff contends that the ALJ's decision should not be affirmed because (1) the ALJ did not 10 provide "clear and convincing" reasons for rejecting Tai's testimony regarding her functional limitations; and (2) the ALJ failed to consider a written statement provided by Tai's daughter.

Plaintiff requests an immediate award of benefits, or, in the alternative, remand for further administrative proceedings. Defendant points out that Plaintiff does not object to the ALJ's primary 14 analysis and finding that Plaintiff was not disabled at step two. Defendant argues that any such 15 objections are now waived and the ALJ's primary finding of no disability at step two should 16 automatically stand. Defendant also argues that the ALJ's alternative findings are supported by 17 substantial evidence and free of legal error. 18

In his primary analysis, the ALJ found that Plaintiff was not disabled because Plaintiff did 20 not have a severe physical or mental medically determinable impairment under 20 C.F.R. 21 404.1520(c). Plaintiff does not object to this finding, and, in any event, the Court finds no basis for 22 rejecting it. 23 24 opinions of two state agency non-examining medical experts: Alexander White, M.D., an ...


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