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Cantu v. Colvin

United States District Court, N.D. California, San Jose Division

March 10, 2015

DOROTHY CANTU, Plaintiff/Claimant,
CAROLYN COLVIN, Acting Commissioner, Social Security Administration, Defendant.


RONALD M. WHYTE, District Judge.


Plaintiff Dorothy Cantu ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) for review of the final decision by Carolyn Colvin, the Acting Commissioner of the Social Security Administration ("Commissioner"), denying plaintiff's claims for disability benefits under the Social Security Act. Plaintiff moves for summary judgment and requests that the case be remanded for an award of benefits. Commissioner cross-moves for summary judgment. The court DENIES plaintiff's motion for summary judgment and GRANTS commissioner's motion for summary judgment.


A. Procedural History

Plaintiff filed her application for Social Security disability benefits under Title II of the Social Security Act on November 4, 2009, alleging that she was unable to work due to a disability commencing on October 16, 2009. Certified Administrative Record ("AR") 216. After her claim was denied on March 25, 2010, plaintiff filed a request for reconsideration, which was denied on September 23, 2010. Id . at 112-16, 123-27. On October 14, 2010, plaintiff then requested a hearing before an Administrative Law Judge ("ALJ") and subsequently retained counsel. Id . at 117. On December 17, 2011, the ALJ issued a decision, finding that plaintiff had multiple severe impairments but was not disabled under the Social Security Act. Id . at 11-24. The decision became the commissioner's final decision when the Appeals Council denied review on March 22, 2013. Id . 1-3.

Subsequently, on April 10, 2013, plaintiff appealed to the Northern District of California under 42 U.S.C. 405(g), seeking review of the final decision of the commissioner. On March 31, 2014, plaintiff moved for summary judgment and remand to the ALJ for an immediate award of benefits. Dkt. No. 16, Motion for Summary Judgment ("Mot."). Commissioner cross-moved for summary judgment on June 6, 2014. Dkt. No. 18, Memorandum In Support Of Defendant Commissioner's Cross-Motion For Summary Judgment And In Opposition To Plaintiff's Motion For Summary Judgment ("Opp.").

B. The ALJ's Findings and Analysis

Plaintiff initially alleged that she was severely impaired due to rheumatoid arthritis and osteoarthritis. After further testing, plaintiff added Reiter's Syndrome, asthma, supraventricular tachycardia ("SVT"), hyperthyroidism, and a depressive disorder to her allegations. Plaintiff alleged that she ceased working after being fired from Happy Hollow Park and Zoo because she needed to take frequent rest breaks and was unable to stand for more than eight minutes at a time. AR 79-80. The ALJ addressed whether the plaintiff was disabled under section 1614(a)(3)(A) of the Social Security Act, applying the five-step sequential evaluation process established by the Social Security Administration for determining if a plaintiff is disabled. See 20 C.F.R. §§ 404.1520(a), 416.920(a).[1] At step one, the ALJ determined that the plaintiff had "not engaged in substantial gainful activity since November 17, 2009." AR 13. At step two, the ALJ determined that the plaintiff suffered from several severe impairments, including Reiter's Syndrome, obesity, asthma, and a depressive disorder. Id . at 13-15. However, the ALJ determined that plaintiff's SVT, rheumatoid arthritis, and hyperthyroidism were not severe impairments. Id. at 15. At step three, the ALJ determined that the plaintiff did "not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." Id. at 16.

At step four, the ALJ determined that the plaintiff had "the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 416.967(a) except that she must change positions every thirty minutes for one to two minutes; c[ould] perform postural functions no more than occasionally; and c[ould not] be in work environments that have any concentrated exposure to pulmonary irritants." Id . at 19. The ALJ also found that the plaintiff had "moderate limitation in her ability to understand, remember, and carry out detailed instructions; moderate limitation in her ability to work in coordination with or proximity to others without being distracted by them; and moderate limitation in her ability to interact appropriately with the general public." Id . at 18-19. In conducting her analysis, the ALJ stated that she considered all of plaintiff's symptoms and weighed whether they could "reasonably be accepted as consistent with the objective medical evidence and other evidence, " based on the requirements of 20 C.F.R. §§ 416.927, 416.929 and SSRs 96-2p, 96-4p, 96-5p, 96-6p, 96-7p, and 06-3p. AR 19. The ALJ also followed a two-step process. In the first step, she determined whether there was an underlying medically determinable physical or mental impairment[2] that could reasonably be expected to produce the plaintiff's pain or other symptoms. In the second step, the ALJ evaluated the intensity, persistence, and limiting effects of the plaintiff's symptoms to determine the extent to which they limit the plaintiff's functioning. See 20 C.F.R. § 404.1529. The ALJ concluded that plaintiff was "not fully credible to the extent of her alleged functional limitations and severity of subjective complaints." AR 19. Specifically, the ALJ highlighted "work activity involving significant interpersonal interactions and physical exertion... inconsistent with the subjective allegations, " "inconsistent compliance with [claimant's] medications, " plaintiff's "capabilities for a wide range of activities of daily living, " and "psychiatric hospitalization in November 2010." Consequently, the ALJ concluded that "claimant's medically determinable impairments could reasonably be expected to cause few of the alleged symptoms; the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." Id. at 19-20.

At step four, the ALJ, relying on a vocational expert, compared plaintiff's residual functional capacity with the demands of her past work and determined that she would be unable to perform her past relevant work. AR 22. First, the ALJ assumed that "the individual has capacity for sedentary exertion but needs to change position every 30 minutes, for one to two minutes; and can perform postural functions no more than occasionally." AR 95-96. The ALJ also eliminated work environments that "have any concentrated exposure to fumes, odors, dust, [or] other pulmonary irritants." Given those hypothetical impairments, the vocational expert determined that plaintiff could not perform any of plaintiff's previous work. Id . at 96.

At step five, the ALJ continued asking the vocational expert questions involving plaintiff's alleged impairments. As an extension of her first question, the ALJ asked if there existed any work such a person could perform. The vocational expert suggested that there were several types of work available to a hypothetical person with plaintiff's background and with the hypothetical impairments, totaling approximately 70, 000 jobs in California. AR 96-97.

For her second hypothetical, the ALJ asked if anything would change if the hypothetical person also had a moderate limitation to her "ability to understand, remember and carry out detailed instructions; had a moderate limitation in the ability to work in coordination or proximity to others without being distracted by them; and a moderate limitation in the ability to interact appropriately with the general public." Id. at 97. The ALJ also defined moderate "to be that the individual has more than a slight limitation in this area but the individual could still-is still able to perform the function satisfactorily as it's defined in the Form HA-1152-U3." Id . The vocational expert replied that it would not change the available job market for the hypothetical person compared to the first hypothetical. Id .

For the third hypothetical, the ALJ reused the limitations from the first hypothetical: that the person had to change positions every 30 minutes for one to two minutes and could not work around pulmonary irritants. Id . She then added the limitation that the individual was only able to remember "simple routines and instructions; they're able to maintain and sustain a work schedule with simple tasks, and they're able to be supervised; able to interact with coworkers; and able to handle minimal public contact; and they're able to adapt with typical... stress and changes in the work place." Id . at 97-98. The vocational expert again responded that it would not change the available jobs compared to the first hypothetical. Id .

For the fourth hypothetical, the ALJ added to the third hypothetical that the individual is "limited to frequent bilateral fingering." AR 99. The vocational expert testified that no jobs would exist that such a hypothetical person could perform. Id .

Plaintiff then posed two hypotheticals to the vocational expert. In the first, she assumed the limitations of hypotheticals two and three, but added in that the individual would have to miss four days of work per month. AR 100. The vocational expert responded that such actions would preclude the jobs previously available under those hypotheticals. Id . Plaintiff then questioned the meaning of "moderate" and changed it to mean the person "could satisfactorily perform work in those settings 80 percent of the time but not 20 percent of the time." Id. at 100. The vocational expert again responded that such a person would not be employable. Id. at 100-01.

Relying on the vocational expert's testimony and rejecting that plaintiff is limited to frequent bilateral fingering, the ALJ determined that, "considering claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id . at 23; see also 20 C.F.R. §§ 416.969, 416.969(a).

C. Plaintiff's Age, Educational, and Vocational History

Plaintiff was born on May 11, 1971. AR 52. She failed to graduate from high school, but acquired a GED by 2004. Id. 82. After attending Bethany University and living on campus for one semester, plaintiff moved back home and completed her bachelor's degree in early childhood education over the internet. Id. at 82-83. Plaintiff received her degree in 2008. Id. at 82.

Since 1996, plaintiff has had a very limited employment history. Id . at 75-81. Plaintiff worked for six to seven months at a KMART, during which she averaged twenty hours a week and lifted objects weighing between twenty and fifty pounds. Id . at 77. Plaintiff also worked part-time as a cashier during one Christmas season for Michael's Arts and Crafts, during which she engaged in no substantial lifting. Id . at 77-78. Between 2002 and 2004, plaintiff was employed full-time as elder care. Id . at 78-79. Plaintiff then worked for nine months as a preschool teacher. Id . at 75-76. During this time, she needed to interact with children and pick them up, some of whom were in excess of fifty pounds. Id. at 76. Finally, plaintiff attempted to work at Happy Hollow Park & Zoo ("Happy Hollow") when it reopened in 2010, but was fired after two weeks. Id . at 79-91. During her time at Happy Hollow, plaintiff averaged 18 breaks over her four hour shift and did no substantial lifting. Id . at 81.

Plaintiff also took part in several daily activities. She volunteered with Catholic Charities as a choral instructor for fifth and sixth grade children. Id . at 282. Once a month, plaintiff went shopping with her mother. Id. at 185. Plaintiff ran errands with friends and family four times a week. Id. at 186. She regularly went to church and the bookstore, while occasionally making trips to Starbucks. Id.

D. Plaintiff's Medical History

Plaintiff alleges disability starting October 16, 2009 due to rheumatoid arthritis, osteoarthritis, Reiter's Syndrome, obesity, asthma, supraventricular tachycardia, hyperthyroidism, and depression. AR 13, 160, 167-68, 240, 248-49. Plaintiff suffers from severe obesity. Id . at 67. Her weight has fluctuated from 219 pounds in October 2010 to a high of 380 pounds as of the time of the hearing, in November 2011. Id. at 90-91. Additionally, plaintiff has been diagnosed with asthma, chronic hyperthyroidism, knee pain due to valgus deformations, and supraventricular tachycardia. Id. at 312, 351, 395. X-rays show degeneration of the lumbar vertebrae due to ankylosing spondylitis and osteoarthritis in both knees. Id . at 387, 93. Finally, plaintiff alleges hand pain with stiffness, weakness, and reduced range of motion. Id. at 317.

Plaintiff has been treated at the Santa Clara Valley Medical Center ("SCVMC") since 2005, primarily by Dr. Lynn Ngo, her primary care physician, and Dr. Thomas Bush, the chief of the Division of Rheumatology at SCVMC. With respect to plaintiff's mental health, in July 2010, Dr. Maria Acenas conducted a consultative psychiatric evaluation and confirmed a diagnosis of depression. AR 16, 324. In September 2010, plaintiff expressed suicidal thoughts to her social worker and was involuntarily committed for four days. Id. at 486. Her treating psychiatrist, Dr. Giselda Tan, diagnosed a major depressive disorder. Id . at 481. On November 12, 2010, plaintiff was again involuntarily committed following an alleged overdose of Ambien; however, plaintiff's toxicology report came back negative for all medications. Id . 501-02. Dr. Tan continued to treat plaintiff through April 12, 2011. Id. at 465. The court discusses each physician's records, along with the ALJ's analysis of those records.

1. Primary Care Physician: Dr. Ngo

On July 16, 2007, plaintiff visited Dr. Lynn Ngo. AR 395-96. Dr. Ngo noted that plaintiff suffered from asthma, arthritis, obesity, and SVT. AR 396. Plaintiff last saw Dr. Ngo on March 1, 2010. In addition to her chronic problems of lower back pain, obesity, and hyperthyroidism, plaintiff was again diagnosed with asthma and was prescribed a new set of medications. AR 367-69. Dr. Ngo was listed as plaintiff's primary care physician as late as June 16, 2010. AR 360.

The ALJ notes that Dr. Ngo's opinion in July 2009 was that plaintiff should be able to work, despite her tachycardia and hyperthyroidism. AR 20. The ALJ appears to ...

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