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Linda Gomez v. Carolyn W. Colvin

March 28, 2013

LINDA GOMEZ, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Jean Rosenbluthu.s. Magistrate Judge

I. PROCEEDINGS

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security Supplemental Security Income benefits ("SSI") and "Disabled Adult Child" benefits ("DAC").*fn2 The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed February 21, 2013, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and this action is dismissed.

II. BACKGROUND

Plaintiff was born on February 27, 1976. (Administrative Record ("AR") 127.) She has a 12th-grade education. (AR 35, 174.) In 1999 Plaintiff worked for approximately two and a half months as a "newspaper jogger," stacking newspapers and inserting them into a machine. (AR 31, 65, 170, 197, 199.) She left that job when she became pregnant. (AR 60.) She last worked as a grocery-store clerk for one day in 2006. (AR 31, 170, 197.)

On May 8, 2009, Plaintiff filed applications for SSI and DAC based on the earnings record of her father. (AR 127-28, 160-63, 176.) Plaintiff alleged that she had been unable to work since January 1, 1995, because of bipolar disorder, anxiety, and attention deficit disorder. (AR 169.) Her applications were denied initially, on June 24, 2009 (AR 77-85), and upon reconsideration, on September 30, 2009 (AR 89-94).

After Plaintiff's applications were denied, she requested a hearing before an ALJ. (AR 96.) A hearing was held on October 21, 2010, at which Plaintiff, who was represented by counsel, appeared and testified; a medical expert and a vocational expert ("VE") also testified. (AR 24-68.) In a written decision issued December 21, 2010, the ALJ determined that Plaintiff was not disabled. (AR 9-20.) On April 18, 2012, the Appeals Council denied Plaintiff's request for review. (AR 1-3.) This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

Under Title II of the Social Security Act, a disabled adult whose parent is entitled to Social Security disability insurance benefits may receive DAC benefits if she can show, among other things, that at the time of filing for DAC benefits she was unmarried, dependent on the wage-earning parent, and "under a disability . . . [that] began before [s]he attained the age of 22." 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.350. To be eligible for benefits, the claimant "must be disabled continuously and without interruption beginning before her twenty-second birthday until the time she applied for child's disability insurance benefits." Smolen v. Chater, 80 F.3d 1273, 1280 (9th Cir. 1996) (emphasis in original).

A. The Five-Step Evaluation Process The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996).*fn3 In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC")*fn4 to perform her past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

To establish eligibility for DAC benefits, the Commissioner must also find that the claimant is the child of the insured, is dependent on the insured, is unmarried, and has a disability that began before age 22. 20 C.F.R. § 404.350(a).

B. The ALJ's Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not turned 22 as of January 1, 1995, the alleged onset date, and had not engaged in substantial gainful activity since that date. (AR 11.) She found that the limited work Plaintiff performed in 1999 and 2006 "did not rise to the level of substantial gainful activity." (Id.) At step two, the ALJ concluded that Plaintiff had the severe impairments of "bipolar disorder, not otherwise specified; attention deficit disorder; and a history of substance abuse." (AR 12.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 12-13.) At step four, the ALJ found that Plaintiff retained the RFC to perform "a full range of work at all exertional levels" but was "limited to simple, repetitive tasks" and "no interaction with the public and only non-intense contact with co-workers and supervisors"; she was also "precluded from positions requiring hypervigilence, fast-paced work or responsibility for the safety of others." (AR 13.) Based on the VE's testimony, the ALJ concluded that Plaintiff was "capable of performing past relevant work as a newspaper jogger as she actually performed it" but "not as generally performed based on the testimony of the [VE]." (AR 19.) The ALJ therefore concluded that with respect to her application for DAC, Plaintiff was not disabled as defined in § 223(d) of the Social Security Act, 42 U.S.C. § 423(d), prior to attaining age 22.*fn5 (Id.) With respect to her application for SSI, the ALJ determined that Plaintiff was not disabled under § 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. § 1382c(a)(3)(A). (Id.)

V. DISCUSSION

Plaintiff alleges that the ALJ erred in (1) evaluating the opinion of her treating physician; (2) failing to address an inconsistency between Plaintiff's RFC and the Dictionary of Occupational Titles ("DOT"); and (3) evaluating the Third Party Disability Report completed by Plaintiff's mother. (J. Stip. at 2-3.)

A. The ALJ Did Not Err in Evaluating the Opinion of Plaintiff's Treating Physician

Plaintiff first contends that the ALJ erred in evaluating the opinion of her treating physician, psychiatrist Dr. Ochuko Gregson Diamreyan. (J. Stip. at 3-5.) Reversal is not warranted on this basis because the ALJ gave specific and legitimate reasons for rejecting Dr. Diamreyan's opinion and those reasons were supported by substantial evidence in the record.

1. Applicable law Three types of physicians may offer opinions in social security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (non-examining physicians)." Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than the opinion of a doctor who examined but did not treat the claimant, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id.

The opinions of treating physicians are generally afforded more weight than the opinions of nontreating physicians because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen, 80 F.3d at 1285. If a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight.

20 C.F.R. ยงยง 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of ...


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