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Grisel v. Colvin

United States District Court, C.D. California

April 2, 2014

COLLEEN GRISEL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

JEAN ROSENBLUTH, Magistrate Judge.

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). 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 January 9, 2014, which the Court has taken under submission without oral argument. For the reasons discussed below, the Commissioner's decision is affirmed and this action is dismissed.

II. BACKGROUND

Plaintiff was born on September 29, 1958. (Administrative Record ("AR") 52.) She has a 12th-grade education. (AR 33, 54, 250.) She previously worked as a supervising housekeeper. (AR 31, 62.)

On November 14 and 19, 2008, respectively, Plaintiff filed applications for DIB and SSI, alleging that she had been disabled since September 13, 2004, because of "[s]evere depression, anxiety attacks, hepati[tis] c, bone spur on right foot, back problems, arthritis in lower spine, [and] acid reflux." (AR 78-81, 221-31, 245.) After Plaintiff's applications were denied, she requested a hearing before an Administrative Law Judge. (AR 115.) A hearing was held on July 15, 2010, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert ("VE"). (AR 49-77.) On September 23, 2010, the ALJ issued a written decision finding Plaintiff not disabled. (AR 85-92.) On October 19, 2010, Plaintiff requested review of the ALJ's decision. (AR 168.) On December 9, 2011, the Appeals Council granted the request for review, vacated the hearing decision, and remanded the case for further proceedings. (AR 99-102.)

On July 23, 2012, a second hearing was held, before a different ALJ. (AR 28-48.) Plaintiff, who was represented by counsel, testified, as did her husband, Woodrow Grisel, and a different VE. (Id.) On July 26, 2012, the ALJ issued a written decision finding Plaintiff not disabled. (AR 10-22.) On August 21, 2012, Plaintiff requested review of the ALJ's decision. (AR 6.) On February 20, 2013, after considering new evidence submitted by Plaintiff, the Appeals Council denied review. (AR 1-5.) 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. Id .; 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). Moreover, "when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence." Brewes v. Comm'r of Soc. Sec. Admin. , 682 F.3d 1157, 1163 (9th Cir. 2012); see also Taylor v. Comm'r of Soc. Sec. Admin. , 659 F.3d 1228, 1232 (9th Cir. 2011). If the evidence as a whole can reasonably support either affirming or reversing, the reviewing court "may not substitute its judgment" for the Commissioner's. Reddick , 157 F.3d 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).

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). 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")[1] 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 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.

B. The ALJ's Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 13, 2004, the alleged onset date. (AR 13.) At step two, the ALJ concluded that Plaintiff had the severe impairments of "degenerative disc disease of the back and mild chronic obstructive pulmonary disease [("COPD")]." (Id.) The ALJ determined that Plaintiff's hypertension, "alcohol withdrawal seizure, " and mental impairments were nonsevere (AR 13-15), findings Plaintiff does not challenge. At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 15.) At step four, the ALJ found that Plaintiff had the RFC to perform "light work"[2] except "she cannot push/pull with the lower extremities; she is limited to performing postural activities occasionally except she is prohibited from climbing ladders, ropes, or scaffolds; and she must avoid exposure to pulmonary irritants, unprotected heights, or dangerous machinery." (AR 15-16.) Based on the VE's testimony, the ALJ concluded that Plaintiff could perform jobs existing in significant numbers in the national economy. (AR 20-21.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 22.)

V. DISCUSSION

Plaintiff alleges that the ALJ erred in assessing (1) the opinion of examining physician Bahaa Girgis, (2) her credibility, and (3) the lay testimony from her husband, Woodrow Grisel. (J. Stip. at 3.)

A. The ALJ Properly Assessed Dr. Girgis's Opinion

Plaintiff contends that "the ALJ's finding that Dr. Girgis was wrong about Plaintiff's need for frequent stops was based on [the ALJ's] lay opinion that a person with mild COPD could not need such a limitation." (J. Stip. at 11.) Plaintiff argues that the ALJ's finding "was not founded on any medical evidence of record" and that "no opinion at all" supported his finding. (Id.)

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.

When an examining doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester , 81 F.3d at 830-31). When an examining physician's opinion conflicts with another doctor's, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id . The weight given an examining physician's opinion, moreover, depends on whether ...


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