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Cherwink v. Commissioner of Social Security

United States District Court, N.D. California

February 26, 2018




         Plaintiff Robert Eugene Cherwink seeks social security benefits for anxiety disorder, depression disorder, alcoholism, disc injuries, arthritis, TMJ, chronic pain syndrome, and hypertension. (Administrative Record (“AR”) 189.) Plaintiff previously appealed the denial of his claim for benefits to this court and the court remanded to the Agency concluding that the Administrative Law Judge's (“ALJ”) finding that Plaintiff's job skills were transferable was not supported by substantial evidence. See Cherwink v. Colvin, No. 13-CV-05147-JCS, 2014 WL 6969658, at *17 (N.D. Cal. Dec. 8, 2014). On remand, the Administrative Law Judge (“ALJ”) again found Plaintiff not disabled and this appeal followed. The parties' cross-motions for summary judgment are now pending before the Court.[1] (Dkt. Nos. 17 & 22.) Because the ALJ's decision was supported by substantial evidence, the Court DENIES Plaintiff's motion and GRANTS Defendant's cross-motion.


         A claimant is considered “disabled” under the Social Security Act if he meets two requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe enough that he is unable to do his previous work and cannot, based on his age, education, and work experience “engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, examining: (1) whether the claimant is “doing substantial gainful activity”; (2) whether the claimant has a “severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the claimant's “residual functional capacity, ” the claimant can still do his “past relevant work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see 20 C.F.R. §§ 404.1520(a), 416.920(a).


         The court's prior decision set forth the factual and procedural background at length and the Court incorporates it by reference. See Cherwink, 2014 WL 6969658, at *1-*6. In the earlier decision, the court held that substantial evidence supported the ALJ's determination that Plaintiff could perform light work and that the light work GRID rules thus applied. Id. at *12. However, because Plaintiff should have been considered of “advanced age” instead of “approaching advanced age, ” the issue of the transferability of Plaintiff's skills from his past relevant work as a graphic designer was material to the disability finding. Id. at *14-15. But neither the ALJ decision nor the VE testimony provided a sufficient basis to conclude that Plaintiff had transferable job skills. Id. at *16-17. As such, the court remanded the matter to the Agency to determine whether the skills Plaintiff acquired from his past work were transferable to the skilled or semiskilled jobs available to him in the national economy. Id. at *17. This Order only addresses what followed that remand.

         On January 28, 2015, the Appeals Council vacated the ALJ's prior decision and remanded the case to the ALJ. (AR 746.) Just over six months later, a further hearing was held before ALJ K. Kwon in San Rafael, California, during which both Plaintiff and a vocational expert (“VE”) Stephen P. Davis testified. (AR 565.) The ALJ heard testimony regarding: (1) the transferability of Plaintiff's job skills from this past relevant work and (2) any ongoing issues with substance abuse as part of the drug addiction and alcoholism (DAA) analysis.

         A. The ALJ's Findings

         On December 21, 2015, the ALJ issued a written decision denying Plaintiff's application and finding that Plaintiff was not disabled within the meaning of the Social Security Act and its regulations taking into consideration the testimony and evidence, and using the SSA's five-step sequential evaluation process for determining disability. (AR 565-74.); see 20 C.F.R. §§ 404.1520(g).

         At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since September 1, 2009, the alleged onset date. (AR 567); see 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.

         At step two, the ALJ determined that the objective medical evidence indicated that Plaintiff's degenerative disc disease of the lumbar spine, depressive disorder, anxiety disorder, and alcohol abuse, in sustained remission, constitute “severe impairments” within the meaning of the regulations. (AR 567); see 20 C.F.R. §, 416.920(c).

         At the third step, the ALJ concluded that Plaintiff did not have an impairment or a combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 568.) At this step, the ALJ considered whether Plaintiff's mental impairments met the listing of Sections 12.04, 12.06 or 12.09, paragraphs (B) and (C). (Id.) With regards to paragraph (B), he concluded that they did not, on the grounds that Plaintiff's mental impairments do not cause (1) at least two “marked” limitations, where a marked limitation means more than moderate but less than extreme, or (2) one “marked” limitation and “repeated” episodes of decompensation, each of extended duration, which means three episodes within one year, or an average of once every four months, each lasting for at least two weeks. (Id.) The ALJ also concluded that no paragraph C criteria were present. (Id.)

         The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b) except that he is limited to work no greater than Specific Vocational Preparation (“SVP”) 4 level. (AR 569.) To reach this conclusion, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not entirely credible.” (Id.) The ALJ noted that despite Plaintiff's impairment, “he has engaged in a somewhat normal level of daily activity and interaction” and that “[s]ome of the physical and mental abilities and social interactions required in order to perform these activities are the same as those necessary for obtaining and maintaining employment” which “undermined the credibility of claimant's allegations of disabling functional limitations.” (Id.) The ALJ also noted Plaintiff's “noncompliance and refusal to follow medical advice” as well as his “routine and/or conservative” treatment. (AR 569-70.) As far as the medical opinion evidence, the ALJ gave “some” weight to the opinion of Plaintiff's treating psychologist Dr. Sands to the extent it was consistent with the record as a whole, but rejected Dr. Sand's opinion that Plaintiff was not capable of working because the final determination regarding whether an individual is disabled is reserved for the Commissioner. (AR 571.) The ALJ gave great weight to the opinion of treating specialist Dr. Anne Kopp because her opinion was consistent with Plaintiff's reports, the information reviewed, and her observations. (AR 572.) The ALJ gave little weight to examining physician Dr. Taylor's opinion because it was limited in scope, failed to say what impairment limited Plaintiff's ability to work, and was inconsistent with the record as a whole. (Id.)

         At step four, the ALJ found that Plaintiff was not capable of performing his past relevant work as a graphic designer which is performed at the medium level with an SVP of 7 because it exceeded his residual functional capacity. (AR 573.)

         At step five, the ALJ found that although Plaintiff is in the advanced age category, the work skills he obtained from his past relevant work were transferable to other occupations with jobs existing in significant numbers in the national economy that could be performed at the SVP 4 or less level. (Id.)

         B. Appeals Council

         Plaintiff filed a request for review arguing that the ALJ committed errors of law and that his decision was not supported by substantial evidence. (AR 555.) On November 15, 2016, the Appeals Council considered Plaintiff's request for review and denied review, making the ALJ's decision final. (Id.)

         C. ...

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