Kathy Jones v. Nancy A. Berryhill, No. 5:2017cv01138 - Document 27 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)
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Kathy Jones v. Nancy A. Berryhill Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 KATHY JONES, Case No. EDCV 17-1138-AS Plaintiff, 12 MEMORANDUM OPINION v. 13 14 15 NANCY A. BERRYHILL, Acting Commissioner Of Social Security, Defendant. 16 17 18 PROCEEDINGS 19 20 On June 9, 2017, Plaintiff filed a Complaint seeking review 21 of the Commissioner's denial of Plaintiff’s applications for a 22 period of disability and disability insurance benefits (“DIB”), 23 and 24 Titles II and XVI of the Social Security Act. 25 1). 26 Administrative Record (“AR”). 27 parties have consented to proceed before the undersigned United 28 States Magistrate Judge. supplemental security income (“SSI”), respectively, under (Docket Entry No. On December 6, 2017, Defendant filed an Answer and the (Docket Entry Nos. 18-19). (Docket Entry Nos. 14-15). The On June 12, Dockets.Justia.com 1 2018, 2 setting forth their respective positions regarding Plaintiff's 3 claim. 4 under submission without oral argument. 5 15. the parties filed a Joint (Docket Entry No. 26). Stipulation (“Joint Stip.”) The Court has taken this matter See C.D. Cal. C. R. 7- 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 On April 24, 2013, Plaintiff, formerly employed as a 10 babysitter (see AR 50-53, 266), filed an application for DIB 11 alleging a disability onset date of January 22, 2009. 12 31). 13 alleging 14 applications were denied initially on August 15, 2013 (AR 160- 15 64), and on reconsideration on January 7, 2014. (AR 225- On July 16, 2013, Plaintiff filed an application for SSI the same onset date. (AR 232-42).1 Plaintiff’s (AR 167-71). 16 17 On August 28, 2015, Administrative Law Judge Duane D. Young 18 (“ALJ”) heard testimony from Plaintiff, who was represented by 19 counsel, and vocational expert (“VE”) Troy Scott. 20 75). 21 Plaintiff’s applications. On May 2, 2016, the ALJ issued a (See AR 44- decision denying (See AR 25-37). 22 23 The ALJ applied the requisite five-step process to evaluate 24 Plaintiff’s case. 25 the insured status requirements through June 30, 2016, and had At step one, the ALJ found that Plaintiff met 26 1 27 At the administrative hearing, Plaintiff amended disability onset date to January 1, 2011. (See AR 48,50). 28 2 the 1 not 2 alleged disability onset date of January 1, 2011. been engaged in substantial gainful activity since her (AR 28). 3 4 5 At step two, the ALJ found that Plaintiff had the following severe impairments: 6 7 left knee degenerative joint disease; right knee mild 8 degenerative joint disease; lumbar spine degenerative 9 arthritis; bilateral hip early degenerative joint 10 disease; 11 degenerative changes and tendonitis; left shoulder mild 12 degenerative joint disease; left hand mild degenerative 13 joint disease; lumbosacral musculoligamentous strain; 14 obesity; and diabetes mellitus. right shoulder acromioclavicular joint 15 16 (AR 29).2 17 18 At step three, the ALJ determined that Plaintiff’s 19 impairments did not meet or equal a listing found in 20 C.F.R 20 Part 404, Subpart P, Appendix 1. 21 found 22 Capacity (“RFC”)3: that Plaintiff had the (AR 31-32). following Next, the ALJ Residual Functional 23 24 25 26 27 2 The ALJ found that Plaintiff’s other impairments of headaches, depression, and mental problems were not severe. (AR 29-31). 3 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1). 28 3 1 [Plaintiff] 2 perform a range of light work4 as defined in 20 C.F.R. 3 404.1567(b) 4 carry 20 pounds occasionally and 10 pounds frequently; 5 she can stand and walk for two hours in an eight-hour 6 work day and sit for six hours in an eight-hour work 7 day; she cannot climb ladders, ropes or scaffolds; she 8 can occasionally stoop, kneel, crouch, crawl, balance, 9 and climb has and the residual 416.967(b) ramps and functional except stairs; she she capacity can is lift to to and avoid 10 concentrated exposure to extreme cold; and she can no 11 more than occasionally walk on uneven terrain. 12 13 (AR 32). 14 15 At step four, the ALJ determined, based on the VE’s capable performing her past 16 testimony, 17 relevant work as a babysitter as actually performed, but not as 18 generally performed, within the meaning of the Social Security 19 Act. 20 is not disabled. that Plaintiff (AR 36-37). is of Accordingly, the ALJ concluded that Plaintiff (AR 37). 21 22 On April 5, 2017, the Appeals Council denied Plaintiff’s 23 request 24 Plaintiff now seeks judicial review of the ALJ’s decision, which to review the ALJ’s decision. (See AR 1-6, 21). 25 26 27 4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 28 4 1 stands as the final decision of the Commissioner. 2 §§ 405(g), 1383(c). See 42 U.S.C. 3 4 STANDARD OF REVIEW 5 6 This 7 determine 8 substantial evidence. 9 (9th Cir. 2012). Court if reviews it the is of free Administration’s legal error and decision to supported by See Brewes v. Comm’r, 682 F.3d 1157, 1161 “Substantial evidence” is more than a mere 10 scintilla, but less than a preponderance. 11 759 12 substantial evidence supports a finding, “a court must consider 13 the record as a whole, weighing both evidence that supports and 14 evidence 15 Aukland 16 (internal quotation omitted). 17 can support either affirming or reversing the ALJ’s conclusion, 18 [a court] may not substitute [its] judgment for that of the ALJ.” 19 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). F.3d 995, that v. 1009 (9th detracts Massanari, Cir. from 257 2014). the F.3d Garrison v. Colvin, To determine [Commissioner’s] 1033, 1035 (9th whether conclusion.” Cir. 2001) As a result, “[i]f the evidence 20 21 DISCUSSION 22 23 Plaintiff 24 Plaintiff’s 25 RFC.5 26 27 contends mild mental that the limitations (See Joint Stip. at 4-9). 5 ALJ in failed his to assessment include of her After consideration of the Plaintiff does not challenge the ALJ’s finding that Plaintiff’s depression was non-severe. She merely contends that the non-severe limitations should have been included in the RFC. 28 5 1 record 2 findings are supported by substantial evidence and are free from 3 material legal error.6 as a whole, the Court finds that the Commissioner’s 4 5 A. The ALJ Did Not Err by Declining to Include Plaintiff’s Mild 6 Mental Limitations in the RFC 7 8 The Social Security Regulations require an ALJ to consider 9 all limitations, whether severe or non-severe, when assessing a 10 claimant’s RFC. 11 (“We will consider all of your medically determinable impairments 12 of 13 impairments 14 residual functional capacity.”). An ALJ errs, therefore, if he 15 explicitly a 16 assessing the RFC. 17 51 (9th Cir. 2012) (holding that although the ALJ found that 18 claimant’s impairment of PTSD was non-severe because it caused 19 only 20 persistence or pace, and no episodes of decompensation,” the ALJ which we “mild See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) are that aware, are neglects mental including not to your medically ‘severe’ . . . consider when non-severe we determinable assess limitation your when See Hutton v. Astrue, 491 F. App’x 850, 850- limitations in the area of concentration, 21 22 23 24 Plaintiff also conclusorily asserts that the ALJ also erred in failing to include her mental limitations in the hypothetical to the VE. (See Joint Stip. at 5). The Court will not consider this assertion because Plaintiff failed to discuss it. 6 25 26 27 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 28 6 1 still was required to consider the mild limitations in the RFC 2 analysis); Ball v. Colvin, 2015 WL 2345652, at *3 (C.D. Cal. May 3 15, 2015) (distinguishing Hutton because it was based on the 4 ALJ’s “explicit refusal” to consider the claimant’s mild mental 5 limitations caused by PTSD in the RFC). 6 must consider non-severe limitations, an ALJ need not include 7 them 8 limitation on a claimant’s ability to work. 9 Colvin, in the RFC 2016 if WL they 6137399, do at not *5 However, while an ALJ cause (C.D. more Cal. than a minimal See Medlock v. Oct. 20, 2016) 10 (“Consideration of “the limiting effects of all impairments” does 11 not necessarily require the inclusion of every impairment into 12 the final RFC if the record indicates the non-severe impairment 13 does 14 ability to work.”); Ball, 2015 WL 2345652, at *3 (reasoning that 15 mild mental impairments “by definition do not have more than a 16 minimal 17 activities . . . 18 functional limitations,” and thus the ALJ was not required to 19 include them in the RFC). not cause a limitation significant on limitation Plaintiff’s which translates ability in in to most the plaintiff’s do basic cases work into no 20 21 Here, the ALJ found, in the “paragraph B” analysis at step 22 two, that Plaintiff had mild limitations in activities of daily 23 living, 24 pace. 25 the 26 Abejuela, M.D., and the state agency psychological consultants, 27 as well as Plaintiff’s testimony and other evidence. 28 The ALJ noted, for example, that Plaintiff “reported [to Dr. social functioning, (AR 30). opinions of and concentration, persistence or In reaching these findings, the ALJ discussed consultative examining 7 psychiatrist Reynaldo (AR 31-31). 1 Abejuela] that she performs personal care tasks, runs errands, 2 shops, 3 public transportation, and does the household chores.” 4 see AR 579). 5 with her family, relatives, friends, and neighbors [were] good to 6 fair to excellent,” and she “was not seeing a psychiatrist, a 7 psychologist or a therapist.” 8 Dr. Abejuela examined Plaintiff on July 20, 2013, he observed 9 that Plaintiff’s thought content, attention, memory, and judgment cooks, pays bills, handles the finances, drives, uses (AR 30; Plaintiff also reported that “her relationships (AR 30-31; see AR 579, 581). When 10 were appropriate. 11 noted, 12 symptoms should dissipate in the next two months because this was 13 transient and temporary.” 14 consideration 15 Plaintiff’s “medically determinable impairment of depression does 16 not 17 ability to perform basic mental work activities and is therefore 18 non-severe.” Dr. cause (AR 31; see AR 579-80, 582). Abejuela of more remarked the than that As the ALJ also Plaintiff’s (AR 31; see AR 583). record minimal overall, the limitation ALJ in “psychiatric Based on his concluded the that [Plaintiff’s] (AR 31). 19 20 Although the ALJ did not include any mental limitations in 21 the 22 functional 23 medically 24 nonsevere.” 25 Moreover, the ALJ stated that the RFC assessment “reflects the 26 degree of limitation [the ALJ] found in the ‘paragraph B’ mental 27 function 28 Plaintiff’s mental impairments were non-severe and did not cause RFC assessment, limitations determinable (see AR 32), resulting the from impairments, ALJ all including “considered of the [Plaintiff’s] those that are (AR 31 (citing 20 C.F.R. §§ 404.1545, 416.945)). analysis.” (AR 30). 8 Because the ALJ found that 1 any significant impairments, the ALJ was not required to include 2 them in Plaintiff’s RFC. 3 the ALJ found that Plaintiff’s mental impairments were minimal, 4 the 5 RFC.”); see also Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 6 2007) (explaining that the Ninth Circuit has not “held mild or 7 moderate depression to be a sufficiently severe non-exertional 8 limitation that significantly limits a claimant’s ability to do 9 work ALJ was beyond not the See Ball, 2015 WL 2345652, at *3 (“As required to exertional include them in limitation.”). Plaintiff’s Thus, having 10 considered the record evidence of Plaintiff’s mental limitations 11 in assessing Plaintiff’s RFC, the ALJ did not err by declining to 12 include mild mental limitations in the RFC finding. 13 14 B. 15 Alternatively, Any Error in Failing to Include Plaintiff’s Mild Mental Limitations in the RFC Was Harmless 16 17 Even if the ALJ erred by failing to include Plaintiff’s mild 18 limitations in activities of daily living, social functioning, 19 and concentration, persistence or pace in the RFC determination, 20 any error was harmless. 21 clear from the record . . . that it was ‘inconsequential to the 22 ultimate nondisability determination.’” 23 533 F.3d 1035, 1028 (9th Cir. 2008) (citation omitted); see also 24 Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 25 Cir. 26 whether the ALJ would have made a different decision absent any 27 error . . . 28 valid, despite such error”); Burch v. Barnhart, 400 F.3d 676, 679 2008) (“[T]he it is An ALJ’s error is harmless “when it is relevant whether inquiry the ALJ’s 9 Tommasetti v. Astrue, in this decision context remains is not legally 1 (9th Cir. 2005) (“A decision of the ALJ will not be reversed for 2 errors that are harmless”). 3 4 Here, it is clear from the record that even if the RFC 5 included mild mental limitations, this would not have altered the 6 ALJ’s conclusion that Plaintiff is capable of performing her past 7 relevant work as a babysitter, as she actually performed that 8 job, and thus is not disabled. 9 babysitting job involved “[t]aking [the children] to and from Plaintiff testified that her 10 school, 11 “sometime[s] . . . fix[ing] them something to eat.” 12 When asked if the job was “more of the classic babysitting rather 13 than like preschool where you’re trying to [t]each them some 14 stuff and everything,” Plaintiff agreed. 15 responsibilities with the 16 abilities required to perform Plaintiff’s daily activities. As 17 discussed above, Plaintiff’s reported daily activities included 18 driving, shopping, cooking, paying bills, and doing household 19 chores. 20 relationships with family or relatives as “excellent to good,” 21 and her relationships with friends and neighbors as “excellent to 22 fair.” 23 that she might still be able to perform her babysitting job with 24 her current limitations. 25 latter testimony supported his finding that Plaintiff could still 26 perform her past relevant work as she performed it. making (AR (Id.). sure of 30, that this job 579). their are homework largely Plaintiff got (Id.). done,” (AR 53). Notably, the consistent also and described her Furthermore, Plaintiff testified at the hearing (AR 65). 27 28 10 The ALJ remarked that this (AR 34). 1 Accordingly, even if mild mental limitations had been 2 included in the RFC, the ALJ would have found Plaintiff not 3 disabled – a decision that is supported by substantial evidence 4 in the record. 5 include such limitations in the RFC was harmless. Therefore, any error in the ALJ’s failure to 6 7 CONCLUSION 8 9 10 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 Dated: August 15, 2018 15 ______________/s/_____________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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