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Cook v. Colvin

United States District Court, C.D. California

January 13, 2015

DOUGLAS GORDON COOK, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER

JEAN ROSENBLUTH, Magistrate Judge.

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security disability insurance benefits ("DIB"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed July 18, 2014, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.

II. BACKGROUND

Plaintiff was born on June 1, 1955. (Administrative Record ("AR") 195.) He completed high school (AR 215), and he worked as a personal assistant and property manager (AR 210).

On October 1, 2009, Plaintiff submitted an application for DIB, alleging that he had been unable to work since February 9, 2006, because of "[l]ow functioning heart that was moved and crushed, Partially paralyzed on left side, Two broken vertebraes vertically, Four ribs/sternum, punctured lung." (AR 195, 209.) After his application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge. (AR 140-41.) A hearing was held on July 30, 2012, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 84-122.) In a written decision issued August 10, 2012, the ALJ found Plaintiff not disabled. (AR 19-27.) On August 22, 2013, the Appeals Council denied Plaintiff's request for review. (AR 1.) This action followed.

III. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing, " the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

A. The Five-Step Evaluation Process

An ALJ follows a five-step sequential evaluation process to assess whether someone is disabled. 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 404.1520(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 404.1520(a)(4)(iii).

If the claimant's impairment or combination of impairments does not meet or equal one in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC")[1] to perform his past work; if so, he is not disabled and the claim must be denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id . If that happens or if the claimant has no past relevant work, the Commissioner bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. § 404.1520(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. The ALJ's Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 9, 2006, the alleged onset date. (AR 21.) At step two, she concluded that Plaintiff had the severe impairments of "status post multiple left-sided rib fractures, C7 and T1 fractures without evidence of nerve root avulsion, Type II diabetes mellitus, and probable left brachial plexus stretch injury." (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 23.) At step four, she found that Plaintiff had the RFC to perform light work except that he was "precluded from overhead reaching with the nondominant left upper extremity or lifting more than 5 pounds with the left upper extremity." (Id.) Based on the VE's testimony, the ALJ concluded that Plaintiff could perform his past work as a "driver/chauffeur"; in the alternative, she found in step five that Plaintiff could perform a light-level job that existed in significant numbers in the national economy: gate guard, DOT 372.667-030, 1991 WL 673099. (AR 25-26.) Accordingly, she found Plaintiff not disabled. (AR 26.)

V. DISCUSSION

Plaintiff contends that the ALJ erred in (1) assessing the findings of his treating physician and of the nonexamining state-agency physicians, (2) finding that he could perform his past relevant work as actually performed, and (3) finding that the VE's testimony regarding other work was consistent with the Dictionary of Occupational Titles ("DOT"). (J. Stip. at 3.) For the reasons discussed below, remand is not warranted.

A. The ALJ Properly Assessed the Medical Findings and Opinion Evidence

Plaintiff claims that the ALJ erred in assessing the findings of Dr. David Frecker, his treating neurologist, and the opinions of Drs. J. Bradus and A. Ahmed, the nonexamining state-agency physicians. (J. Stip. at 4-7, 13-14.)

1. Relevant background

In February 2006, Plaintiff was involved in an all-terrain-vehicle accident. (AR 23.) He fell 160 feet off a cliff and sustained major orthopedic injuries from the impact. (Id.) He was not found until two days later, and he was airlifted to Goleta Valley Cottage Hospital and then transferred to Santa Barbara Cottage Hospital for specialized care. (AR 22; see also AR 252-53.)

Dr. David Frecker, a neurologist, treated Plaintiff after he was discharged from the hospital. (AR 22, 263-64.) He first saw Plaintiff on March 8, 2006. (AR 263.) He noted that extensive imaging was performed in February, which showed left-rib fractures, a pneumothorax, [2] and transverse-process[3] fractures at C-7 and T-1.[4] (Id.) He noted that the loss of sensation and weakness in Plaintiff's left arm had "improved over the last several days." (Id.) Indeed, he noted that "nothing [had] worsened in the last few weeks, and only improvement ha[d] happened." (Id.) Plaintiff complained of pain and weakness in his left hand but did not believe his left upper arm was weak. (Id.) On examining Plaintiff, Dr. Frecker observed "dense sensory loss in the ulnar side of the hand radiating up into the forearm." (Id.) Dr. Frecker diagnosed "probable left brachial plexus stretch injury[5] on the left" and recommended further imaging. (AR 264; see also AR 255-56 (spine MRI performed Mar. 9, 2006), 257-58 (spine MRI performed Mar. 8, 2006).)

On March 13, 2006, Dr. Frecker noted that Plaintiff had "improved modestly, " increasing "at least 10 to 15 percent" in his strength, but he had "more burning pain" in his left arm. (AR 262.) An MRI scan performed that day showed a "small ...


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