Marla McPeters v. Michael J Astrue, No. 5:2010cv01258 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Marla McPeters filed this action on September 7, 2010. (Dkt. No. 3.) Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on September 22 and October 1, 2010. (Dkt. Nos. 8, 9.) On May 13, 2011, the parties filed a Joint Stipulation that addressed the disputed issue. (Dkt. No. 14.) This court took the matter under submission without oral argument. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. [SEE ORDER FOR DETAILS] (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NO. EDCV 10-01258 AGR 17 ) ) ) ) ) ) ) ) ) ) ) ) 18 Marla McPeters filed this action on September 7, 2010. (Dkt. No. 3.) MARLA McPETERS, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 MEMORANDUM OPINION AND ORDER 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 20 magistrate judge on September 22 and October 1, 2010. (Dkt. Nos. 8, 9.) On 21 May 13, 2011, the parties filed a Joint Stipulation that addressed the disputed 22 issue. (Dkt. No. 14.) This court took the matter under submission without oral 23 argument. The decision of the Commissioner is affirmed. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On December 14, 2007, McPeters filed an application for disability 4 insurance benefits and supplemental security income benefits, alleging an onset 5 date of June 6, 1995. Administrative Record ( AR ) 100-10. The application was 6 denied initially and upon reconsideration. AR 9, 48-52, 56-61. McPeters 7 requested a hearing before an Administrative Law Judge ( ALJ ). AR 62. On 8 May 21, 2009, the ALJ conducted a hearing at which McPeters and a vocational 9 expert appeared and testified. AR 18-43. On September 3, 2009, the ALJ 10 issued a decision denying benefits. AR 9-17. On July 23, 2010, the Appeals 11 Council denied the request for review. AR 1-3. This action followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 15 decision to deny benefits. The decision will be disturbed only if it is not supported 16 by substantial evidence, or if it is based upon the application of improper legal 17 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 18 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 Substantial evidence means more than a mere scintilla but less than a 20 preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the court examines the administrative record as a whole, considering 24 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 25 evidence is susceptible to more than one rational interpretation, the court must 26 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that McPeters had the severe physical impairment of 12 carpal tunnel syndrome. AR 11. The ALJ found that the mental impairment of 13 depression does not cause more than minimal limitations in [her] ability to 14 perform basic mental work activities and is therefore nonsevere. Id. The ALJ 15 determined McPeters had the residual functional capacity ( RFC ) to perform 16 medium work, except that she was limited to frequent handling and fingering.1 17 AR 12. The ALJ concluded McPeters was capable of performing past relevant 18 work as a drafter. AR 16. The ALJ s Findings 19 C. 20 McPeters argues the ALJ improperly determined that her mental 21 Mental Impairment impairment of depression was not severe at step two of the sequential analysis. 22 At step two, the claimant bears the burden of demonstrating a severe, 23 medically determinable impairment that meets the duration requirement. 20 24 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 25 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration requirement, the severe 26 27 28 1 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighting up to 25 pounds. 20 C.F.R. § § 404.1567(c), 416.967(c). 3 1 impairment must have lasted or be expected to last for a continuous period of not 2 less than 12 months. Id. at 140. 3 Your impairment must result from anatomical, physiological, 4 or psychological abnormalities which can be shown by 5 medically acceptable clinical and laboratory diagnostic 6 techniques. A physical or mental impairment must be 7 established by medical evidence consisting of signs, 8 symptoms, and laboratory findings, not only by your 9 statement of symptoms. 10 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 11 significantly limits your physical or mental ability to do basic work activities. 2 12 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen v. 13 Chater, 80 F.3d at 1273, 1290 (9th Cir. 1996) ( [A]n impairment is not severe if it 14 does not significantly limit [the claimant s] physical ability to do basic work 15 activities. ) (citation and quotation marks omitted). 16 An impairment or combination of impairments may be found not severe 17 only if the evidence establishes a slight abnormality that has no more than a 18 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 19 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step two is a 20 de minimis screening device [used] to dispose of groundless claims and the 21 ALJ s finding must be clearly established by medical evidence. Id. at 687 22 2 23 24 25 26 27 28 Basic work activities are the abilities and aptitudes necessary to do most jobs, such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) the use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b); Social Security Ruling ( SSR ) 85-15. Social security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 4 1 (citations and quotation marks omitted). [T]he ALJ must consider the combined 2 effect of all of the claimant s impairments on her ability to function, without regard 3 to whether each alone was sufficiently severe. Smolen, 80 F.3d at 1290. In finding McPeters mental impairment non-severe, the ALJ considered 4 5 the four broad functional areas set out in the disability regulations for evaluating 6 mental disorders. AR 12. Applying that analytic framework, the ALJ determined: 7 The first functional area is activities of daily living. In this area, the claimant 8 has no limitation. The next functional area is social functioning. In this 9 area, the claimant has no limitation. The third functional area is 10 concentration, persistence or pace. In this area, the claimant has no 11 limitation. The fourth functional area is episodes of decompensation. In 12 this area, the claimant has experienced no episodes of decompensation. 13 Because [McPeters ] medically determinable mental impairment causes no 14 more than mild limitation in any of the first three functional areas and no 15 episodes of decompensation which have been of extended duration in the 16 fourth area, it is nonsevere (20 CFR 404.1520a(d)(1) and 416.920a(d)(1)). 17 18 Id. Substantial evidence supports the ALJ s conclusion that McPeters mental 19 impairment was not severe. The examining psychiatrist, Dr. Abejuela, performed 20 a psychiatric evaluation of McPeters. AR 263-69. Dr. Abejuela assessed no 21 limitations in activities of daily living, mild difficulties in social functioning, mild 22 limitations in concentration, persistence and pace, and no repeated episodes of 23 deterioration. AR 268. As an examining physician's opinion based on 24 independent clinical findings, Dr. Abejuela s opinion constitutes substantial 25 evidence. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The state agency 26 nonexamining physician reports also indicated that McPeters had no severe 27 mental impairments. AR 276, 295. A non-examining physician's opinion may 28 also constitute as substantial evidence when it is supported by other evidence in 5 1 the record and consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 2 Cir. 1995). 3 Even assuming error at step two, such error was harmless. Burch v. 4 Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Any prejudice could occur only at 5 step four because all prior steps were decided in her favor. Id. As the ALJ 6 acknowledged here, the RFC assessment takes into account limitations imposed 7 by all impairments, even those that are not severe. Id. at 683 (citing SSR 96-8p); 8 AR 11. Contrary to McPeters argument, the ALJ did examine the mental health 9 records in assessing her RFC. AR 14. The ALJ also cited Dr. Abejuela s report, 10 which assessed McPeters psychiatric limitations as none to mild. AR 14, 269. 11 Essentially, McPeters argues that her tearfulness during psychological treatment 12 sessions means that she would be subject to crying spells at work. Her treatment 13 records belie that argument. For example, she reported that when she is with 14 good friends, her mood is generally good and may remain so for rest of the day. 15 AR 360. On the other hand, she [d]reads coming to see doctors because it is 16 indicative that something is wrong with her. Id. Her psychologist recommended 17 volunteer work to raise her low motivation level. AR 337. She followed through 18 with volunteer work at a thrift store (although her volunteer work is limited when 19 she lacks funds for bus fare). AR 400. The ALJ s decision is supported by 20 substantial evidence. 21 IV. 22 ORDER 23 24 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 25 26 DATED: August 31, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 27 28 6

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