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Clegg v. Colvin

United States District Court, E.D. California

March 26, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.


GARY S. AUSTIN, Magistrate Judge.


Plaintiff Bryanna Clegg ("Plaintiff") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income ("SSI") and disability insurance benefits pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge.[1]


At the time of her hearing, Plaintiff was 36 years old. AR 53, 163. She completed high school and two years of college and received an associate's degree. AR 213. Plaintiff worked as an office manager in a medical office from 2001 until December 2009. AR 186. She has not worked since December 31, 2009, the alleged onset date of her disability. AR 181. Plaintiff has two minor children who live with her. AR 634. Her daily routine consists of helping her children prepare for school, performing household chores, and making dinner for her children. AR 634. She also spends time watching television and sleeping. AR 634. Plaintiff is currently on probation for a 2009 arrest (and, presumably, conviction) related to the illegal use of prescription medication. AR 634. Plaintiff asserts that she has multiple sclerosis and seizure disorder. AR 185.

Her alleged physical symptoms include pain in her lower back and left leg, seizures, and cardiac irregularities. AR 60-63. She also asserts that she suffers from major depressive disorder and post-traumatic stress disorder. AR 78, 432. She currently takes a number of medications to manage her symptoms, including Xanax, Klonopin, Loratadine, Cymbalta, QVAR, Neurontin, Keppra, aspirin, Elavil, Abilify, Motrin, ProAir, Albuterol, Vicodin, SOMA, and marijuana. AR 432.

On May 5, 2010, Plaintiff filed her application for disability insurance benefits under Title II and supplemental security income under Title XVI. AR 163-164. Both applications alleged that her period of disability began on December 31, 2009. Both applications were denied initially on October 5, 2010 and on reconsideration on February 22, 2011. AR 113-117, 119-124. Plaintiff filed a request for a hearing on March 4, 2011. AR 125. The hearing was then conducted before Administrative Law Judge Judson Scott (the "ALJ") on September 19, 2011. AR 51-104. On March 2, 2012, the ALJ issued an unfavorable decision determining that Plaintiff was not disabled. AR 8-22. Plaintiff filed an appeal of this decision with the Appeals Council. The Appeals Council denied her appeal, rendering the order the final decision of the Commissioner. AR 1-6.

Plaintiff now challenges this decision, arguing that: (1) the ALJ inappropriately weighed the opinion of Beverly Barclay, Ph.D., a treating psychologist; and (2) the ALJ had a duty to develop evidence in connection with the opinion of the vocational expert.


To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

... his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 1382c(a)(3)(B).

To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 404.1520(a)-(f) and 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). The ALJ must consider objective medical evidence and opinion testimony. 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929.

Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability, (2) whether the claimant had medically-determinable "severe" impairments, [3] (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the residual functional capacity ("RFC") to perform his past relevant work, [4] and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the regional and national level. 20 C.F.R. §§ 404.1520(a)-(f) and 416.920(a)-(f).

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 9-29. In particular, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 25, 2009, the date specified in her application. AR 14. Further, the ALJ identified degenerative disc and joint disease of the back, chronic bilateral L4-L5 radiculopathy, moderate depressive disorder, and post-traumatic stress disorder as severe impairments. AR 13. Nonetheless, the ALJ determined that the severity of Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 14.

Based on a review of the entire record, the ALJ determined that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) except that she could not climb ladders, ropes, or scaffolds; could not work in unprotected heights or around hazardous moving machinery; could engage in simple repetitive one to three step tasks; could have frequent interaction with co-workers, supervisors, and the public; and could work in a low stress occupation-meaning few changes in work or setting and with little decision making required. AR 16. Although the Plaintiff cannot perform her past relevant work, she could perform other work that exists in the national economy. AR 20.


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether: (1) it is supported by substantial evidence; and (2) it applies the correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

"Substantial evidence means more than a scintilla but less than a preponderance." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Id. "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Id.


A. The Relevant Medical Evidence

Plaintiff argues that the ALJ improperly considered the medical evidence and thus erroneously determined that Plaintiff was not disabled. Specifically at issue is the ALJ's consideration of the opinion of Beverly Barclay, Ph.D., Plaintiff's treating psychologist. The parties do not contest the ALJ's assessment of the physicians who treated or provided examinations with respect to Plaintiff's physical condition (as opposed to her psychiatric condition). Accordingly, only the mental health experts will be discussed here.

i. Beverly Barclay, Ph.D. [5]

Dr. Barclay treated Plaintiff and saw her approximately six different times between January 2011 and July 2011. AR 483, 486, 490, 501, 511, 512. In her initial visit with Plaintiff, Dr. Barclay reported that Plaintiff was "anxious and depressed" and that she was confined to a wheelchair due to her multiple sclerosis. AR 512. Plaintiff told her that she had "consistent flashbacks" of instances where she was a victim of child sexual abuse and a history of domestic violence that she wished to discuss with Dr. Barclay. AR 512. In March 2011, Dr. Barclay completed a medical source statement regarding Plaintiff. In that statement, she described Plaintiff as "agitated, " said that she displayed "poor insight and judgement [sic], " had moderately impaired concentration, and mildly impaired memory. AR 471. She also described mildly impaired judgment.[6] AR 472. Ultimately, she found that Plaintiff:

• Had a poor ability to understand, remember, and carry out complex instructions;[7]
• Had a fair ability to understand, remember, and carry out simple instructions;
• Had a poor ability to maintain concentration, attention, and persistence;
• Had a poor ability to perform activities within a schedule and maintain regular attendance;
• Had a poor ability to complete a normal workday and workweek without interruptions from ...

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