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Sau Ming Tai v. Carolyn W. Colvin*Fn1


March 26, 2013


*E-FILED: March 26, 3013*



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


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


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 internal 25 medicine doctor, and Walter Lewin, M.D., a psychiatrist. Drs. White and Lewin reviewed 26

The ALJ stated that he gave significant weight to the opinions of these doctors because they had the 28


A. The ALJ's Finding At Step Two

The ALJ relied on his own review of the medical record, as well as the testimony and Plaintiff's medical record, appeared at the hearing over the telephone, and heard Plaintiff testify.

opportunity to hear Plaintiff's testimony and review a much greater portion of the evidentiary record 2 than any other medical source. AR 15. 3

4 evidence did not establish the presence of a severe medically determinable physical impairment. 5

Dr. White opined that, based on his experience and review of the record, the medical

AR 54. He testified that the record failed to establish that Plaintiff's alleged dry eyes and dry mouth 6 were related to her past chemotherapy treatment, which had occurred in 2005, or that they had a 7 basis in any other serious medical condition. AR 54-56. Dr. White also testified that Plaintiff's 8 alleged symptoms of hand numbness would not be related to the chemotherapy treatment that had 9 occurred years ago. He further testified that the record did not show any diagnosis of, or treatment 10 for, carpal tunnels disease. AR 56, 59.

The ALJ reviewed the medical record and noted that it contained insufficient evidence of bilateral carpal tunnel syndrome, "with no EMG studies or other evidence of sensory changes." AR 15. The ALJ also noted that the record contained no evidence of any lung damage due to cancer, 14

ALJ found that "the alleged residuals due to the claimant's history of cancer and chemotherapy are 16 simply not established medically as residuals." AR 15. 17

Dr. Lewin, the psychiatrist, testified and opined that, based on his review of the record, the

18 medical evidence failed to establish the presence of a severe medically determinable mental 19 impairment. AR 74. Plaintiff's attorney also stipulated on the record at the hearing that Plaintiff 20 was not claiming disability on the basis of any mental impairment. AR 75. The ALJ concluded, at 21 step two of the sequential evaluation process, that the claimant was not disabled. 22

23 appears to be supported by substantial evidence and free from legal error. Accordingly, the Court 24 could affirm the ALJ's decision based on the ALJ's primary finding at step two. 25

Normally an ALJ's analysis would end after a finding, at step two, that a claimant had no

27 severe impairments under 20 C.F.R. 404.1520(c). Yet, for purposes of further analysis, and to "give 28 the benefit of the doubt" to Plaintiff, the ALJ assumed arguendo that Plaintiff's alleged impairments

"including no evidence of any follow-up treatment for a history of a spot on the lung." AR 15. The 15

Plaintiff does not argue that the ALJ erred in its primary analysis. And, the ALJ's finding

B. The ALJ's Alternative Analysis

were severe, and he proceeded with an alternative analysis to assess whether these impairments 2 rendered Plaintiff disabled. In her motion, Plaintiff argues that the ALJ erred in this alternative 3 analysis. 4

Plaintiff claims that the ALJ committed legal error in his alternative analysis by failing to

6 articulate clear and convincing reasons for rejecting Tai's testimony regarding her general weakness 7 and fatigue, her inability to lift appreciable amounts of weight due to hand pain, and her inability to 8 work for even three hours for the new owners of her former restaurant. See AR 38-39, 46. 9

10 unreliable, the ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). "[W]here the record includes objective medical evidence establishing that the claimant 14 suffers from an impairment that could reasonably produce the symptoms of which [she] complains, 15 an adverse credibility finding must be based on 'clear and convincing reasons.'" Lingenfelter v. 16

In his alternative analysis, the ALJ found that Plaintiff's medically determinable

18 impairments could reasonably be expected to cause the symptoms alleged. AR 16. The ALJ did 19 not, however, credit Plaintiff's statements concerning the intensity, persistence, and limiting effects 20 of her symptoms, to the extent they were inconsistent with the ALJ's RFC assessment. AR 16. 21

The ALJ cited a number of specific reasons for discrediting Tai's testimony about the

22 severity and extent of her symptoms. The ALJ cited to evidence from Tai's treating oncologist, the 23 consultative examiner, the state agency non-examining medical consultants, a testifying medical 24 expert, and other evidence in the record. For example, the ALJ found it significant that the record 25 showed that Tai continued working while undergoing chemotherapy, and up until the day she sold 26 her restaurant. AR 17, 38-42. He also found it significant that the records of Tai's treating 27 oncologist, Dr. Gordon, show Tai as reporting that she planned to retire in the summer of 2007. Id.; 28 id. at253 ("Working full time, but fatigued (KPS 90%.); No symptoms worrisome for metastases.

1. Credibility Determination

"If the ALJ finds that claimant's testimony as to the severity of [her] pain and impairments is

Astrue, 504 F. 3d 1028, 1036 (9th Cir. 2007) (quoting Smolen v. Chater, 80 F. 3d at 1281.).

Planning to retire this summer!"); AR 244 ("Here for routine visit. She has now retired ('just 2 staying home.')"). 3

4 basis for discounting symptom testimony, the ALJ may consider it as one factor in the credibility 5 analysis. 20 C.F.R. § 404.1529(c)(1) & (2). Here, the objective evidence and the medical opinion 6 evidence conflicted with Plaintiff's allegations of disabling limitations. In April 2008, Joseph 7

334. Dr. Garfinkel reported a normal examination of Plaintiff's upper and lower extremities, normal 9 strength testing in all extremities, normal gait, and normal sensation. AR 337. For Plaintiff's wrists 10 and hands, Dr. Garfinkle reported "[t]here is no evidence of tenderness to palpitation of the wrists.

There is no evidence of Heberden's nodes noted. There are no Bouchard's nodes noted. Range of motion of wrists is grossly normal." AR 337. The ALJ cited to Dr. Garfinkel's report in discrediting Plaintiff's testimony, and relied on Dr. Garfinkel's report in setting Plaintiff's RFC, 14 even though Dr. Garfinkel's assessment was somewhat more restrictive than the assessments of the 15

Although both Dr. Garfinkle and Dr. Gordon, Plaintiff's treating oncologist, had diagnosed

Plaintiff with peripheral neuropathy*fn2 , the ALJ noted that neither of these doctors opined that 18 neuropathy caused Plaintiff to have manipulative or other functional limitations. AR 17. In fact, in 19 spite of this diagnosis, Dr. Gordon's June 2007 examination revealed normal neurological findings. 20

AR 17, 253. As mentioned above, Dr. Garfinkel's examination of Plaintiff's upper and lower 21 extremities a year later showed normal neurological findings and normal 5/5 strength testing. AR 22

17, 337. The ALJ also noted that Plaintiff's treatment records do not contain diagnostic test results 23 or clinical findings to demonstrate any neurological deficit. AR 17. The ALJ cited numerous and 24 specific reasons for discrediting Tai's testimony at the hearing about the severity and extent of her 25 physical symptoms. The Court is satisfied that the ALJ provided clear and convincing reasons for 26 discrediting Plaintiff's testimony. 27

Although a lack of objective evidence supporting a claimant's symptoms cannot be the sole Garfinkel, M.D., an internal medicine doctor, performed a consultative examination of Plaintiff. AR

Disability Determination Services reviewers. AR 17.

171. In the report, Plaintiff's daughter states that Plaintiff cannot perform any physical activities for 4 long periods of time, that she cannot lift anything over 8-10 pounds, and that her lower back will 5 start to hurt if she sits for long periods of time. Plaintiff's daughter also indicated, by checking 6 boxes on the form, that Plaintiff's disability affects Plaintiff's lifting, squatting, bending, standing, 7 walking, sitting, kneeling, stair climbing, memory, task completion, concentration, and use of hands. 8

2. Third-Party Testimony

Plaintiff's daughter completed a third party function report form in January 2008. AR 164- AR 169. Plaintiff argues that the ALJ committed legal error by failing to address the third party 9 function report. 10

how it affects [claimant's] ability to work." 20 C.F.R. 404.1513(d). Lay witness testimony as to a claimant's symptoms "is competent evidence that an ALJ must take into account," unless he "expressly determines to disregard such testimony and gives reasons germane to each witness for 14 doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 15 16 decision. The Court has reviewed the report, however, and, it does not describe any limitations 17 beyond those described by Plaintiff. Plaintiff's daughter did not identify limitations that were more 18 restrictive than those alleged by Plaintiff. As the ALJ cited specific, thorough reasons for 19 discrediting Plaintiff's testimony, the ALJ's legal error was harmless. See Molina v. Astrue, 674 20 F.3d 1104, 1122 (9th Cir. 2012) (finding that an ALJ's failure to comment upon lay witness 21 testimony is harmless where the same evidence that the ALJ referred to in discrediting the 22 claimant's claims also discredits the lay witness's claims) (citing Buckner v. Astrue, 646 F.3d 549, 23 560 (8th Cir. 2011). 24

For the foregoing reasons, the Court finds no reason not to affirm the ALJ's primary finding,

26 at step two, that Plaintiff is not disabled. The Court also finds that in his alternative assessment, the 27

ALJ provided clear and convincing reasons for rejecting Plaintiff's testimony regarding the severity 28 and extent of her symptoms and that, although the ALJ committed legal error by failing to mention

Lay witnesses may give evidence "to show the severity of [claimant's] impairment(s) and

The ALJ committed legal error by failing to mention the third-party function report in his


the third-party function report, this error was harmless. Accordingly, IT IS ORDERED THAT, 2

Plaintiff's motion for summary judgment is DENIED and Defendant's motion for summary 3 judgment is GRANTED. 4

C11-04273 HRL Order will be electronically mailed to:

Ann Lucille Maley 3 Sundeep Ravindra Patel, 4 Young Chul Cho, 5 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

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