Dianna Lynn Gorton v. Nancy A. Berryhill, No. 5:2017cv00259 - Document 23 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Dianna Lynn Gorton v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DIANNA LYNN GORTON, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 17-259-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on February 14, 2017, seeking review 21 of the Commissioner’s denial of benefits. The parties filed a consent 22 to proceed before a United States Magistrate Judge on March 7, 2017. 23 Plaintiff filed a motion for summary judgment on August 15, 2017. 24 Defendant filed a motion for summary judgment on September 15, 2017. 25 The Court has taken both motions under submission without oral 26 argument. 27 /// 28 /// See L.R. 7-15; “Order,” filed February 15, 2017. Dockets.Justia.com 1 BACKGROUND 2 3 In June of 2013, Plaintiff filed claims for disability insurance 4 benefits and supplemental security income, asserting an inability to 5 work since February 28, 2010 (Administrative Record (“A.R.”) 242, 6 250). 7 December 22, 2012, because the Administration had denied Plaintiff’s 8 prior application for disability benefits on December 21, 2012 (A.R. 9 34-35). Plaintiff later amended her alleged disability onset date to 10 11 An Administrative Law Judge (“ALJ”) examined the medical record 12 and heard testimony from Plaintiff and a vocational expert (A.R. 9- 13 470). 14 impairments but retains the residual functional capacity to perform a 15 reduced range of light work (A.R. 15-23). 16 mental limitations, the ALJ determined that Plaintiff “is limited to 17 unskilled work; she is precluded from fast-paced work like assembly 18 line work or conveyor belt work; and she is limited to occasional 19 public contact” (A.R. 18). 20 avoid “concentrated noise such as that found in a construction 21 workplace or loud restaurant” (id.) The ALJ found Plaintiff has severe physical and mental With regard to Plaintiff’s The ALJ also believed that Plaintiff must 22 23 In reliance on the testimony of the vocational expert, the ALJ 24 found Plaintiff can perform work that exists in significant numbers in 25 the national economy (A.R. 24-25). 26 contrary testimony not fully credible (A.R. 19-23). 27 Council denied review (A.R. 2-4). 28 /// The ALJ deemed Plaintiff’s 2 The Appeals 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 3 1 DISCUSSION 2 3 After consideration of the record as a whole, Defendant’s motion 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material1 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 9 The ALJ found that, despite Plaintiff’s limitations, Plaintiff can perform work existing in significant numbers in the national 10 economy. Notwithstanding any ultimately harmless errors possibly 11 committed by the ALJ, substantial evidence supports this decisive 12 finding. 13 14 The vocational expert testified, inter alia, that there exist 15 426,000 “marker” jobs in the national economy (A.R. 56). The ALJ 16 properly could rely on this testimony as proving the existence of 17 significant numbers of “marker” jobs. 18 740 F.3d 519, 529 (9th Cir. 2014); Barker v. Secretary of Health and 19 Human Services, 882 F.2d 1474, 1478-80 (9th Cir. 1989). 20 not challenging this testimony before the ALJ, Plaintiff waived her 21 right to do so. 22 Cir. Aug. 22, 2017) (“when a claimant fails entirely to challenge a 23 vocational expert’s job numbers during administrative proceedings 24 before the agency, the claimant waives such a challenge on appeal at See Gutierrez v. Commissioner, Moreover, by See Shaibi v. Berryhill, 2017 WL 3598085, at *6 (9th 25 26 1 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 least when that claimant is represented by counsel”). 2 3 Contrary to Plaintiff’s arguments, substantial evidence supports 4 the conclusion that the job of “marker” may be performed by a person 5 limited to the ability to perform unskilled “Level 2 reasoning”2 jobs 6 not involving fast paced work or more than occasional public contact 7 and not involving a “concentrated noise environment.” 8 expert essentially so testified in response to questioning by the ALJ 9 and Plaintiff’s counsel (A.R. 55-59). The vocational “[A]t least in the absence of 10 any contrary evidence, a VE’s [vocational expert’s] testimony is one 11 type of job information that is regarded as inherently reliable. 12 . . .” 13 2017); see Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) 14 (“A VE’s recognized expertise provides the necessary foundation for 15 his or her testimony. Buck v. Berryhill, 2017 WL 3862450, at *7 (9th Cir. Sept. 5, Thus, no additional foundation is required”). 16 17 Plaintiff may argue that the vocational expert’s testimony 18 conflicted with the Dictionary of Occupational Titles (“D.O.T.”). 19 least with respect to the job of “marker,” no material conflict 20 existed. 21 [D.O.T.’s] listings to be fairly characterized as a conflict, it must 22 be obvious or apparent.” 23 Cir. 2016). 24 the vocational expert’s testimony and the D.O.T. which was material to “For a difference between an expert’s testimony and the Gutierrez v. Colvin, 844 F.3d 804, 808 (9th There existed no “obvious or apparent” difference between 25 26 27 28 At 2 Level 2 reasoning requires the worker to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.” Dictionary of Occupational Titles Appendix C. The ALJ did not find that Plaintiff is limited to Level 2 reasoning (A.R. 18). 5 1 the conclusion Plaintiff can perform the job of “marker.” For 2 example, although Plaintiff argues that her preclusion from work in an 3 environment of “concentrated noise” prevents her from performing the 4 job of “marker,” the D.O.T. describes the noise level of the “marker” 5 job environment as only “moderate.” D.O.T. § 209.587-034. 6 7 Contrary to Plaintiff’s arguments, substantial medical evidence 8 supports the conclusion Plaintiff can perform the job of “marker” 9 despite her mental limitations. The consultative examining 10 psychologist opined that Plaintiff “would be able to understand, 11 remember and carry out short, simplistic instructions with no 12 difficulty” and would have only “mild difficulty to understand, 13 remember and carry out detailed and complex instructions” (A.R. 389). 14 State agency review physicians opined Plaintiff can understand, 15 remember and carry out simple job instructions, maintain attention and 16 concentration and perform work that requires direction from others 17 (A.R. 123, 156). 18 E. Prickett, M.F.T., but Ms. Prickett is not an acceptable medical 19 source under the applicable regulations. 20 404.1513(a), (d)(1).3 21 to resolve conflicts in the medical evidence. 22 F.3d 503, 509 (9th Cir. 2001). 23 than one rational interpretation,” the Court must uphold the 24 administrative decision. 25 1039-40 (9th Cir. 1995); accord Thomas v. Barnhart, 278 F.3d 947, 954 26 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. Plaintiff stresses the contrary opinions of Patricia See 20 C.F.R. §§ In any event, it was the prerogative of the ALJ See Lewis v. Apfel, 236 When evidence “is susceptible to more See Andrews v. Shalala, 53 F.3d 1035, 27 3 28 This version of the regulations applies to claims filed before March 27, 2017. 6 1 1997). The Court will uphold the ALJ’s rational interpretation of the 2 evidence in the present case notwithstanding any conflicts in the 3 record. 4 5 Other evidence also supports the ALJ’s conclusion Plaintiff 6 retains the capacity to work notwithstanding her mental limitations. 7 Plaintiff’s mental problems reportedly originated from a brain injury 8 suffered in 1979 (A.R. 39). 9 ten years thereafter (A.R. 38). Nevertheless, Plaintiff worked more than A claimant’s demonstrated ability to 10 work despite an impairment militates against a conclusion of 11 disability. 12 2009); Johnson v. Bowen, 864 F.2d 340, 347-48 (5th Cir. 1988); Ray v. 13 Bowen, 813 F.2d 914, 917 (9th Cir. 1987); Baker v. Gardner, 388 F.2d 14 493, 494 (5th Cir. 1968). 15 after leaving her last job in 2010 (A.R. 38-39). 16 well have occurred after her original February 28, 2010 alleged onset 17 date. 18 against a finding of disability. 19 Security Admin., 554 F.3d at 1227; see also Ghanim v. Colvin, 763 F.3d 20 1154, 1165 (9th Cir. 2014) (“continued receipt” of unemployment 21 benefits can cast doubt on a claim of disability); but see Webb v. 22 Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (“That Webb sought 23 employment suggests no more than that he was doing his utmost, in 24 spite of his health, to support himself”). 25 somewhat conflicting, Plaintiff herself stated she is capable of 26 handling a checking account (A.R. 61). 27 Plaintiff conceded her psychiatric medications help her “a lot” (A.R. 28 48; see A.R. 40, 53). See Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. Plaintiff reportedly looked for work even Her job search may The fact that a claimant has sought out employment can weigh See Bray v. Commissioner of Social Although the evidence is It is also significant that Impairments that can be controlled effectively 7 1 with medication are not disabling. 2 See Warre v. Commissioner, 439 F.3d 1001, 1006 (9th Cir. 2006).4 3 4 Contrary to Plaintiff’s apparent arguments, the ALJ’s residual 5 functional capacity assessment and the hypothetical questioning of the 6 vocational expert need not have included all conceivable limitations 7 that a favorable interpretation of the record might suggest to exist - 8 only those limitations the ALJ actually found to exist. 9 Bayliss v. Barnhart, 427 F.3d at 1217-18; Rollins v. Massanari, 261 See, e.g., 10 F.3d 853, 857 (9th Cir. 2001); Magallanes v. Bowen, 881 F.2d 747, 756- 11 57 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773-74 (9th 12 Cir. 1986). 13 material omission from either the residual functional capacity 14 assessment or the questioning of the vocational expert. Given the evidence previously discussed, there was no 15 16 Finally, the ALJ did not materially err5 in discounting 17 Plaintiff’s credibility. An ALJ’s assessment of a claimant’s 18 credibility is entitled to “great weight.” 19 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 20 (9th Cir. 1985). 21 determinable impairments reasonably could be expected to cause some 22 degree of the alleged symptoms of which the claimant subjectively 23 complains, any discounting of the claimant’s complaints must be Anderson v. Sullivan, 914 Where the ALJ finds that the claimant’s medically 24 25 4 Plaintiff sometimes has gone off her medications (A.R. 382). 26 5 27 28 Under the circumstances of this case, the boilerplate language in the last paragraph on page 19 of the Administrative Record constitutes immaterial error. See Laborin v. Berryhill, 2017 WL 3496031 (9th Cir. Aug. 16, 2017). 8 1 supported by specific, cogent findings. See Berry v. Astrue, 622 F.3d 2 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th 3 Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 4 1996) (indicating that ALJ must offer “specific, clear and convincing” 5 reasons to reject a claimant’s testimony where there is no evidence of 6 malingering).6 7 specific to allow a reviewing court to conclude the ALJ rejected the 8 claimant’s testimony on permissible grounds and did not arbitrarily 9 discredit the claimant’s testimony.” An ALJ’s credibility findings “must be sufficiently Moisa v. Barnhart, 367 F.3d 882, 10 885 (9th Cir. 2004) (internal citations and quotations omitted); see 11 Social Security Ruling 96-7p (explaining how to assess a claimant’s 12 credibility), superseded, Social Security Ruling 16-3p (eff. March 28, 13 2016).7 As discussed below, the ALJ stated sufficient reasons for 14 15 16 17 18 19 20 21 6 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d at 1163 n.9; Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 22 7 23 24 25 26 27 28 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). The appropriate analysis in the present case would be substantially the same under either SSR 96-7p or SSR 163p. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (observing that only the Seventh Circuit has issued a published decision applying Ruling 16-3p retroactively; also stating that Ruling 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 2017 WL 4053751, at *9 n.5 (9th Cir. Sept. 14, 2017) (continued...) 9 1 deeming Plaintiff’s subjective complaints less than fully credible. 2 3 The ALJ properly pointed out Plaintiff’s level of admitted 4 activities, which appears inconsistent with Plaintiff’s claimed 5 disability (A.R. 18, 22). 6 house, cooks, does laundry, goes out for walks, gets along with family 7 and friends, goes to church and goes to the movies (A.R. 42, 304-05). 8 Such activities can undercut a claimant’s assertion of an inability to 9 work. Plaintiff admittedly shops, cleans the See, e.g., Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 10 2012); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 11 2008); Thomas v. Barnhart, 278 F.3d at 958-59. 12 13 The ALJ also stressed the conservative nature of Plaintiff’s 14 medical treatment (A.R. 19-22). The conservative nature of a 15 claimant’s treatment properly may factor into the evaluation of the 16 claimant’s credibility. 17 1039-40 (9th Cir. 2008); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 18 2007), cert. denied, 552 U.S. 1141 (2008); Osenbrock v. Apfel, 240 19 F.3d 1157, 1166 (9th Cir. 2001). See Tommasetti v. Astrue, 533 F.3d 1035, 20 21 The ALJ also relied on the objective medical evidence to conclude 22 that Plaintiff’s functional limitations are not as profound as 23 Plaintiff claims (A.R. 18-23). 24 evidence to corroborate the claimed severity of alleged symptomatology 25 cannot form the “sole” basis for discounting a claimant’s credibility, 26 the objective medical evidence is still a relevant factor. While a lack of objective medical See Burch 27 7 28 (...continued) (SSR 16-3p “makes clear what our precedent already required”). 10 1 v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Rollins v. Massanari, 2 261 F.3d at 857. 3 4 To the extent one or more of the ALJ’s stated reasons for 5 discounting Plaintiff’s credibility may have been invalid, the Court 6 nevertheless would uphold the ALJ’s credibility determination under 7 the circumstances presented. 8 1155, 1162-63 (9th Cir. 2008) (despite the invalidity of one or more 9 of an ALJ’s stated reasons, a court properly may uphold the ALJ’s See Carmickle v. Commissioner, 533 F.3d 10 credibility determination where sufficient valid reasons have been 11 stated). 12 to allow this Court to conclude that the ALJ discounted Plaintiff’s 13 credibility on permissible grounds. 14 at 885. 15 determination. 16 Cir. 2007) (court will defer to Administration’s credibility 17 determination when the proper process is used and proper reasons for 18 the decision are provided); accord Flaten v. Secretary of Health & 19 Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).8 20 /// 21 /// 22 /// 23 /// In the present case, the ALJ stated sufficient valid reasons See Moisa v. Barnhart, 367 F.3d The Court therefore defers to the ALJ’s credibility See Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th 24 25 26 27 28 8 The Court need not and does not determine herein whether Plaintiff’s subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d at 750, 755-56. 11 1 CONCLUSION 2 3 For all of the foregoing reasons,9 Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: September 21, 2017. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 9 25 26 27 28 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 12
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