Opinion
No. C 02-03855 WHA 11C.
July 15, 2003.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The parties to this Social Security action both move for summary judgment. This order DENIES plaintiff's motion and GRANTS defendant's cross-motion.
STATEMENT
Plaintiff is a thirty-nine-year-old woman who has worked as a secretary, bookkeeper, and day-care provider. Although she received no degree, plaintiff attended college for four years (AR 27).
On April 18, 2000, plaintiff filed an application for disability benefits under the Social Security Act, stating that she was rendered unable to work on January 17, 2000, because of a disabling condition (AR 125-27). Plaintiff stated that she suffered from reflex sympathetic dystrophy, nerve root disease, sensory carpel tunnel syndrome, nerve damage in both arms, and motor damage in her right arm and hand, and double crush syndrome (AR 135, 143). At the time of her application, plaintiff was employed as a secretary in the claims department of an insurance company (AR 136).
On September 28, 2000, defendant issued a decision, concluding that plaintiff did not qualify for benefits as she was not disabled under the relevant rules (AR 69). Defendant determined that plaintiff's condition was "not severe enough to keep [her] from working" ( ibid.). Defendant later reconsidered plaintiff's claim and concluded in a decision that issued on December 28, 2000, that the initial determination was correct (AR 74). Plaintiff subsequently requested a hearing (AR 79). On January 31, 2002, a hearing before an administrative law judge (ALJ) took place (AR 23). Plaintiff, who was represented by counsel, testified at the hearing, as did a vocational expert witness (AR 23-66). On March 22, 2002, the AL's decision issued (AR 11-22). The ALJ concluded that plaintiff retained the capacity for work existing in significant numbers in the national economy and that plaintiff was not under a disability, as defined under the Social Security Act, at any time through the date of the decision (AR 21). The Appeals Council denied plaintiff's request to review the ALJ's decision because the relevant regulations did not authorize such review (AR 6). On August 9, 2002, plaintiff commenced this action seeking judicial review of defendant's decision under 42 U.S.C. § 405(g). Both parties now move for summary judgment.
ANALYSIS
A district court must uphold the Commissioner's decision to deny disability benefits if it is supported by substantial evidence in the record and is based on the correct application of the law. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Substantial evidence means more than a mere scintilla but less than a preponderance of the evidence. Ibid. Plaintiff advances two arguments. First, plaintiff contends that defendant erred in finding that plaintiff could perform other work in the national economy. Second, plaintiff asserts that defendant erred in failing to find that plaintiff qualified for benefits for a closed period while undergoing treatment and rehabilitation. This order addresses, and ultimately rejects, both arguments.
Defendant made this determination in the fifth step of the five-step procedure used for determining eligibility for benefits. See 20 C.F.R. § 404.1520; Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (explaining the five-step procedure).
1. WHETHER PLAINTIFF COULD PERFORM OTHER WORK EXISTING IN THE NATIONAL ECONOMY.
Defendant's finding that plaintiff could perform thousands of jobs in the local and national economy was supported by substantial evidence. The ALJ found that plaintiff had the residual functional capacity to perform light work but was precluded from: (1) repetitive, forceful gripping and/or repetitive finger motion for more than thirty minutes at a time, limited to one hour per day, with no repeated or prolonged cervical flexion or extension; and (2) from working overhead. As such, the ALJ concluded, plaintiff could not perform her past relevant work. The ALJ consulted with a vocational expert to determine whether plaintiff could perform other work in the economy. According to the vocational expert, a person with plaintiff's limitations could perform the following jobs existing in the national economy: lobby guard, gate guard, and information clerk (AR 59-61).
Plaintiff challenges the ALJ's finding by calling into question the vocational expert's testimony regarding the number of information-clerk jobs regionally available. This is the same argument asserted by plaintiff in a post-hearing brief dated March 25, 2002 (AR 369-70). Plaintiff specifically claims that the vocational expert was incorrect in stating that there were available in the region approximately one-thousand information-clerk positions of the sort that plaintiff could perform. Plaintiff's research purportedly shows that the number of such information-clerk positions regionally available is less than 600; plaintiff suggests that 150 is a more accurate estimate.
Even assuming arguendo that plaintiff's assertions about the number of available information-clerk positions are correct and may now be considered, plaintiff's argument fails. The position of information clerk is only one of several jobs that the vocational expert identified as suitable for a person with plaintiff's limitations. Even if the information-clerk positions were excluded altogether from the analysis, the number of lobby-guard and gate-guard positions available in the region (1600 and 1400, respectively) amounted to a significant number and thus satisfied defendant's step-five burden. Barker v. Sec'y of Health Human Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989) (holding that 1266 jobs were enough to constitute a significant number). The ALJ's conclusion was plainly supported by substantial evidence.
Plaintiff did not raise this point to the ALJ until after plaintiff's hearing and after the ALJ's ruling had issued (AR 11-22, 369-70). The reports upon which plaintiff's research is based are not part of the record.
2. WHETHER PLAINTIFF WAS DISABLED FOR A CLOSED PERIOD.
Plaintiff also contends that the ALJ failed to analyze plaintiff's condition from the perspective of a closed period of disability. Accordingly, plaintiff requests a finding that she was disabled from January 14, 2000, through March 2002. Unless an impairment is expected to result in death, it must have lasted or be expected to last for a continuous period of at least twelve months in order to be considered disabling. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509; Flaten v. Sec'y of Health Human Servs., 44 F.3d 1453, 1459 (9th Cir. 1995).
The ALJ concluded that plaintiff retained the capacity for work existing significant numbers in the national economy and was not under a disability, as defined by the Social Security Act, at any time through the date of the decision. This ruling too was supported by substantial evidence. A Board-certified neurologist examined plaintiff on May 13, 2000, and concluded that plaintiff retained the capacity to lift 25 pounds occasionally but was possibly precluded from repetitive, forceful gripping and repetitive fingering motion of both hands for more than thirty minutes at a time or one hour per day (AR 205-07). In September and December 2000, reviewing physicians relying on specific clinical findings independently determined that plaintiff retained the capacity to perform light work but was precluded from repetitive, forceful gripping or repetitive fingering motion (AR 249-64). In response to a hypothetical posed by the ALJ, the vocational expert testified that a person with these limitations could perform other work existing in the national economy (AR 59-61). Plaintiff fails to identify any specific evidence that plaintiff's condition deteriorated between her examination on May 13, 2000, and her wrist surgery on February 14, 2001, such that she no longer retained the above-described capacity for work.
The record contains several progress reports from a primary treating physician following the February 2001 surgery (AR 348-51). These reports contained a space in which the primary treating physician could instruct plaintiff to remain off work until a particular date. The last-dated of these progress reports, completed on July 30, 2001, recommended that plaintiff remain off-work until November 1, 2001 (AR 348). The report took into account the fact that plaintiff had another surgery scheduled for August 2001.
None of the medical evidence concerning plaintiff's recovery from the August neck surgery controverts this estimate. The follow-up evaluations indicate that plaintiff was "doing reasonably well" (AR 359, 361, 363, 365, 367). By November 1, 2001, her wounds had healed, her spine was continuing to heal, her neurological tests were normal, and she was instructed to discontinue use of her neck brace (AR 361, 363). Although plaintiff now argues that she did not recover from her August 2001 neck surgery until March 2002 — over twelve months after her February 2001 wrist surgery — plaintiff points to no specific medical evidence supporting a finding of impairment through that date. The ALJ did not err in failing to find that plaintiff qualified for disability benefits for a closed period. Substantial evidence supported the conclusion that plaintiff did not suffer an impairment for a continuous period of twelve months.
CONCLUSION
For the foregoing reasons, plaintiff's motion for summary judgment is DENIED and defendant's cross-motion for summary judgment is GRANTED. The clerk shall close the file.