United States District Court, N.D. California
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 13, 14
M. Ryu United States Magistrate Judge
Robben Schaeffer McGovert (“Plaintiff”) moves for
summary judgment to reverse the Commissioner of the Social
Security Administration's (the
“Commissioner's”) final administrative
decision, which found Plaintiff not disabled and therefore
denied her application for benefits under Title II of the
Social Security Act, 42 U.S.C. § 401 et seq.
and Title XVI of the Social Security Act, 42 U.S.C. §
1381 et seq. The Commissioner cross-moves to affirm.
For the reasons stated below, the courts GRANTS IN PART and
DENIES IN PART Plaintiff's motion, and GRANTSINPARTand
November 30, 2011, Plaintiff protectively filed applications
for Social Security Disability Insurance (SSDI) and
supplemental social benefits, alleging disability beginning
on January 5, 2009. Administrative Record
(“A.R.”) 90-91; 212-28. Her applications were
initially denied on April 5, 2012 and again on
reconsideration on December 29, 2012. A.R. 90-111 (Initial
Denial), 112-47 (Reconsideration). On January 10, 2013,
Plaintiff filed a request for a hearing before an
Administrative Law Judge (“ALJ”). A.R. 166-67.
the hearing, ALJ K. Kwon issued a decision finding Plaintiff
not disabled. A.R. 22-34. In relevant part, the ALJ
determined that Plaintiff was 1) 56 years old on the alleged
disability onset date, which is defined as “advanced
age” within the meaning of the Social Security
regulations (see 20 C.F.R. §§ 404.1563(e),
414.963(e)), and later changed age categories to
“closely approaching retirement age, ” which is
age 60 or older, see id; 2) has the following severe
impairments: “adjustment disorder with depressed and
anxious mood, and degenerative disc disease of the cervical
spine (20 C.F.R. §§ 404.1520(c), 416.920(c)”;
3) has acquired work skills from relevant past work as a bank
teller and bookkeeper (20 C.F.R. §§ 404.1568,
416.968); 4) is able to perform her past relevant work as a
bookkeeper, both as generally and actually
performed;and 5) has at least a high school education
and is able to communicate in English. A.R. 27, 32-33. The
ALJ found that Plaintiff has the residual functional capacity
(“RFC”) to “perform light work as defined
20 C.F.R. § 404.1567(b) and 416.967(b) [but] with no
climbing ladders, ropes, or scaffolds; no more than
occasional postural movements; and no working at heights or
with hazardous moving machinery as a safety precaution”
and “no regular interaction with the general public as
a primary duty.” A.R. 28. Based on these findings, and
relying on the opinion of a vocational expert (VE) who
testified that an individual with such an RFC could perform
other jobs existing in the economy, including typist clerk
and credit clerk, the ALJ concluded that Plaintiff is not
disabled. A.R. 33-34.
Appeals Council denied Plaintiff's request for review on
September 11, 2015. A.R. 1-6. The ALJ's decision
therefore became the Commissioner's final decision.
Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d
1228, 1231 (9th Cir. 2011). Plaintiff then filed suit in this
court pursuant to 42 U.S.C. § 405(g). [Docket No. 1].
THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
qualify for disability benefits, a claimant must demonstrate
a medically determinable physical or mental impairment that
prevents her from engaging in substantial gainful
activity and that is expected to result in death or
to last for a continuous period of at least twelve months.
Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998)
(citing 42 U.S.C. § 423(d)(1)(A)). The impairment must
render the claimant incapable of performing the work she
previously performed and incapable of performing any other
substantial gainful employment that exists in the national
economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
decide if a claimant is entitled to benefits, an ALJ conducts
a five-step inquiry. 20 C.F.R. §§ 404.1520,
416.920. The steps are as follows:
1. At the first step, the ALJ considers the claimant's
work activity, if any. If the claimant is doing substantial
gainful activity, the ALJ will find that the claimant is not
2. At the second step, the ALJ considers the medical severity
of the claimant's impairment(s). If the claimant does not
have a severe medically determinable physical or mental
impairment that meets the duration requirement in [20 C.F.R.]
§ 416.909, or a combination of impairments that is
severe and meets the duration requirement, the ALJ will find
that the claimant is not disabled.
3. At the third step, the ALJ also considers the medical
severity of the claimant's impairment(s). If the claimant
has an impairment(s) that meets or equals one of the listings
in 20 C.F.R., Pt. 404, Subpt. P, App. 1 [the
“Listings”] and meets the duration requirement,
the ALJ will find that the claimant is disabled.
4. At the fourth step, the ALJ considers an assessment of the
claimant's residual functional capacity
(“RFC”) and the claimant's past relevant
work. If the claimant can still do his or her past relevant
work, the ALJ will find that the claimant is not disabled.
5. At the fifth and last step, the ALJ considers the
assessment of the claimant's RFC and age, education, and
work experience to see if the claimant can make an adjustment
to other work. If the claimant can make an adjustment to
other work, the ALJ will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other
work, the ALJ will find that the claimant is disabled.
20 C.F.R. § 416.920(a)(4); 20 C.F.R. §§
404.1520; Tackett, 180 F.3d at 1098-99.
hearing before the ALJ, Plaintiff gave the following
testimony: Plaintiff was born in 1952. A.R. 44. She was
married and has children, but has lived alone since 2000.
A.R. 44, 49. Plaintiff completed some years of college. A.R.
testified that the last time she worked was in 2009. A.R. 45,
48. Prior to 2005, she worked as a bookkeeper at a
construction site for five years and then as a bank teller
for 3 years. A.R. 81. From 2005 to 2009, Plaintiff worked for
John Deere as an assistant doing a variety of tasks including
filing, procuring and stocking supplies, answering multiple
phone lines, typing, and carrying cases of paper and office
equipment. A.R. 80-81. In 2009, she worked as a grocery clerk
at Safeway for 2 months, and then as a desk clerk at the Day
Inns for 10 days. A.R. 46.
believes that her fatigue has kept her from working. She
attributes her fatigue to Hepatitis C and rheumatoid
arthritis. A.R. 49-50. She has had Hepatitis C for almost 40
years, and finished interferon treatment for it in 2008. A.R.
50. Plaintiff now gets her liver checked every 6 months. A.R.
50. Plaintiff's Hepatitis C viral load was normal as of
the last sonogram, but she gets it checked every year. A.R.
has difficulty breathing when walking up a few flights of
stairs, standing to get up, and even when she is not exerting
herself. A.R. 52-54. According to Plaintiff, the doctors
found cysts on her lungs and told her that she lost
approximately 25 percent usage of her lungs. A.R. 52. She
goes to Vista Family Medical Health once every 1 to 2 months
for a general check-up on her shortness-of-breath symptoms.
A.R. 53. Plaintiff uses an inhaler intermittently, but does
not use a nebulizer machine. A.R. 54. She still smokes, but
is actively trying to quit, and usually smokes fewer than 10
cigarettes per day. A.R. 55.
has neck pain, for which she sees a neurologist, Dr. Richard
J. Mendius, 3 times per year. A.R. 55-56. Dr. Mendius wanted
Plaintiff to get a block (injection) in her neck and referred
her to another doctor to get this done. A.R. 57. She has not
had the block performed because she is worried about having
needles stuck in her neck. A.R. 57. She takes pain pills,
ibruprofen, and aspirin to treat her neck pain. A.R. 57. In
2011, Plaintiff went to physical therapy 2 to 3 times per
week for 6 months at Palm Hospital, but stopped going because
the physical therapy seemed to aggravate her symptoms. A.R.
experiences pain in both of her arms, and has difficulty
using both hands. A.R. 55, 72. She feels pain, tingling, and
numbness in her left arm which starts from her left shoulder
and moves down into her little finger. A.R. 55. She sometimes
drops items that she is holding with her left arm because she
loses her grip. A.R. 72. Plaintiff can carry a gallon of milk
with her right hand only. A.R. 62-63. Plaintiff feels
periodic, radiating pain in her right arm. A.R. 55, 72.
has low back pain, and can only sit for 15 to 30 minutes each
day without being in pain. A.R. 60, 75. She can sit for up to
1 to 1.5 hours before she has to stand up and stretch, but
this is not an everyday occurrence. A.R. 60. Plaintiff is
able to stand for approximately 30 to 45 minutes before she
has to sit down. A.R. 61, 75. She feels pain down her leg,
which makes it difficult to stand. She has fallen to the
ground after getting up and standing out of bed due to her
legs. A.R. 75-76.
testified that on an average day, she feeds her dog, reads,
takes a nap, gets up to her dog out, and then lies back down
and listens to the radio. A.R. 63, 76. She takes her dog out
for a 20 to 30 minute walk once or twice a week at most. A.R.
61, 71-72. During these walks, she has to stop to sit in a
bus shelter. A.R. 61-62. While Plaintiff is independent in
her personal care, e.g., dressing, feeding, and bathing
herself, she does not perform it on a daily basis like she
used to do. A.R. 64. She does not do household chores by
herself generally. A.R. 66. Her daughter will assist her with
laundry once in a while. A.R. 66. Plaintiff finds that
washing dishes is difficult to do now because her left arm
cannot hold plates; she has to put the plates on the counter
and push on them to scrub them. A.R. 66. Plaintiff drives up
to twice a week; once to go to the library to check out
books, and the other time to go to the store. A.R. 65.
Plaintiff will go visit a friend once in a while, but does
not have a lot of friends. A.R. 65.
had a serious problem with methamphetamine/IV drug use. A.R.
66-67. Plaintiff stopped any extreme drug use in 2000, but
occasionally used drugs until 2007. A.R. 67. She did not
attend any formal rehab or detox program to stop using drugs,
but instead got involved with the Buddhist church. A.R.
67-68. Plaintiff has had one or two relapses with drug use
since 2007, but has otherwise been sober. A.R. 69. Plaintiff
also used to have a serious problem with alcohol. A.R. 66.
She drank more heavily in the past when she was more social,
but does not drink heavily now since she is not as social.
A.R. 70. Plaintiff does not attend AA or NA meetings. A.R.
testified that since she has been unable to work, her
depression has increased. A.R. 73-74. She finds it difficult
to be around other people and to control her moods. A.R. 74.
Plaintiff testified that she is prone to having good days and
bad days. A.R. 77. On a bad day, she cries, feels really
depressed, has a cup of tea and tries to read, but can also
lay down all day, only getting up to use the restroom. A.R.
77. If her back goes out, then she can be in bed for up to
two weeks. A.R. 77. In a given week, she estimates that at
least 4 to 5 days are bad days; in some weeks, every day is a
bad day. A.R. 78. On a good day, Plaintiff tries to read
encouraging books, and, on some days, she feels “really
elated.” A.R. 77.
Relevant Medical Evidence
Examining Physician ...