Sherry White v. Carolyn W. Colvin, No. 2:2016cv00076 - Document 32 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff White filed this action on January 5, 2016. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. On March 30, 2017, the part ies filed a Joint Stipulation ("JS") that addressed the disputed issue. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)
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Sherry White v. Carolyn W. Colvin Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHERRY WHITE, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. CV 16-76 AGR MEMORANDUM OPINION AND ORDER Plaintiff White filed this action on January 5, 2016. Pursuant to 28 U.S.C. § 18 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 11, 19 12.) On March 30, 2017, the parties filed a Joint Stipulation (“JS”) that addressed the 20 disputed issue. The court has taken the matter under submission without oral 21 argument. 22 23 Having reviewed the entire file, the court affirms the decision of the Commissioner. 24 25 26 27 28 Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 White filed applications for disability insurance benefits and supplemental security 4 income benefits on August 3, 2011. In both applications, she alleged an onset date of 5 January 22, 2010. Administrative Record (“AR”) 11. The applications were denied 6 initially and on reconsideration. AR 11, 124-25, 152-53. White requested a hearing 7 before an Administrative Law Judge (“ALJ”). On May 5, 2014, the ALJ conducted a 8 hearing at which White and a vocational expert (“VE”) testified. AR 28-51. On June 13, 9 2014, the ALJ issued a decision denying benefits. AR 8-22. On November 16, 2015, 10 the Appeals Council denied review. AR 1-3. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that White met the insured status requirements through March 31, 12 2012. AR 13. Following the five-step sequential analysis applicable to disability 13 determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 the ALJ 14 found that White had the severe impairments of cervical degenerative disc disease, 15 obesity; diabetes mellitus; and right rotator cuff tear. AR 14. She had the residual 16 functional capacity (“RFC”) to perform light work except that she can frequently perform 17 postural activities; occasionally use ladders, ropes or scaffolds; and frequently perform 18 overhead reaching with the right upper extremity. AR 18. White was capable of 19 performing her past relevant work of day care worker and cafeteria attendant as 20 generally performed. AR 21. C. 21 An examining physician’s opinion constitutes substantial evidence when, as 22 23 Examining Physician here, it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th 24 25 26 27 28 1 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 Cir. 2007). When an examining physician's opinion is contradicted, “it may be rejected 2 for ‘specific and legitimate reasons that are supported by substantial evidence in the 3 record.’” Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted). 4 “‘The opinion of a nonexamining physician cannot by itself constitute substantial 5 evidence that justifies the rejection of the opinion of either an examining physician or a 6 treating physician.’” Ryan v. Comm’r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation 7 omitted) (emphasis omitted). However, a non-examining physician’s opinion may serve 8 as substantial evidence when it is supported by other evidence in the record and is 9 consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 10 Dr. Bagner performed a psychiatric evaluation of White on January 26, 2012. AR 11 398-401. Based on the mental status examination, Dr. Bagner observed that White was 12 alert, cooperative and anxious, with good eye contact. Her speech was slow but clear, 13 coherent and soft in volume. Her mood was depressed but there was no psychomotor 14 retardation. Her thought process and thought content did not show abnormality and she 15 denied any hallucinations. She was able to recall 3/3 objects immediately and 2/3 after 16 five minutes, and could perform serial three’s. AR 400. Dr. Bagner diagnosed major depressive disorder and assessed a Global 17 18 Assessment of Functioning (GAF) score of 65.2 AR 401. He opined that White had no 19 limitation in her ability to follow simple instructions and only mild limitation in her ability 20 to follow detailed instructions. White was mildly limited in her ability to interact with the 21 public, coworkers and supervisors; and comply with job rules such as attendance. She 22 was moderately limited in her ability to respond to changes in a routine work 23 environment and to work pressure due to a low threshold for frustration. Id. 24 25 26 27 28 2 A GAF score of 61-70 indicates some mild symptoms “(e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.” Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV-TR”) 34. 4 1 At step two of the sequential analysis, the ALJ found that White’s mental 2 impairment did not cause more than minimal limitation in her ability to perform basic 3 mental work activities and was therefore non-severe. AR 15. White had mild limitations 4 in activities of daily living, social functioning, and concentration, persistence or pace. 5 The record contained no episodes of decompensation of extended duration. AR 16. At 6 step four of the sequential analysis, the ALJ noted that White made no complaint of 7 mental limitations at the hearing, and he found insufficient evidence of a supportable 8 limitation in her functional capacity due to a mental health impairment. AR 20. The ALJ 9 gave Dr. Bagner’s opinion minimal weight based on White’s failure to seek mental 10 11 health treatment and the ALJ’s findings. AR 20-21. White’s argument that the ALJ erred at step two of the sequential analysis is 12 insufficient. Even assuming error at step two, any error was harmless because 13 prejudice could occur only in later steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th 14 Cir. 2007) (failure to address particular impairment at step two is harmless when ALJ 15 evaluates that impairment in later step); see also Stout v. Comm’r, 454 F.3d 1050, 1055 16 (9th Cir. 2006) (ALJ’s error harmless when it is “inconsequential to the ultimate 17 nondisability determination”). White does not argue that the ALJ erred at step four of 18 the sequential analysis. There is no showing that Dr. Bagner’s relatively benign 19 opinion, accepted at face value, would preclude White’s past relevant work. The ALJ 20 found, based on the VE’s testimony, that White could perform her past relevant work 21 even with the additional limitation that she was precluded from high production quota 22 jobs. AR 21. 23 24 25 26 27 28 5 1 IV. 2 ORDER 3 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 4 5 6 7 DATED: March 31, 2017 ALICIA G. ROSENBERG United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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