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Abbink v. Berryhill

United States District Court, C.D. California

April 25, 2017

MARC ABBINK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER

          JEAN ROSENBLUTH U.S. Magistrate Judge

         I. PROCEEDINGS

         Plaintiff seeks review of the Commissioner's final decision denying his applications 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 under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Stipulation, filed November 3, 2016, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.

         II. BACKGROUND

         Plaintiff was born in 1962. (Administrative Record (“AR”) 168.) He completed two years of college (AR 219) and worked as an architectural draftsman, general laborer, and tutor (AR 220).

         On January 17, 2013, Plaintiff filed an application for DIB and on January 22 he filed one for SSI, alleging in each that he had been unable to work since December 30, 2012 (AR 168, 170), because of a head injury, physical limitations, anxiety, arthritis, and diabetes (AR 218). After his applications were denied initially and on reconsideration (AR 73-74, 105-06), he requested a hearing before an Administrative Law Judge (AR 127). A hearing was held on September 21, 2015, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 33-48.) In a written decision issued October 27, 2015, the ALJ found Plaintiff not disabled. (AR 16-32.) Plaintiff requested review from the Appeals Council, and on January 28, 2016, it denied review. (AR 1-6.) This action followed.

         III. STANDARD OF REVIEW

         Under 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. See id.; Richardson v. Perales, 402 U.S. 389, 401 (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 the Commissioner's. 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 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 to assess 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 his ability to do basic work activities; if not, the claimant is not disabled and his 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 set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed. §§ 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 his past work; if so, he 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 he 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 he can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 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 December 30, 2012, the alleged onset date. (AR 21.) At step two, he concluded that Plaintiff had severe impairments of “status post remote motorcycle accident in 1980; status post remote cardiac arrest; status post fracture and reconstructive surgery of right tibia; and anxiety disorders.” (Id.) At step three, he determined that Plaintiff's impairments did not meet or equal a listing. (AR 23.)

         At step four, the ALJ found that Plaintiff had the RFC to perform medium work, was able to lift and carry 25 pounds frequently and 50 pounds occasionally, could sit and stand about six hours in an eight-hour workday, and could perform “no greater than simple routine tasks” with “no more than occasional contact with the public and coworkers.” (AR 24.)

         Based on the VE's testimony, the ALJ concluded that Plaintiff could not perform his past relevant work. (AR 26.) At step five, he relied on the VE's testimony to find that given Plaintiff's RFC for medium work “impeded by additional limitations, ” he could perform two “representative” medium, unskilled occupations in the national economy: (1) “dishwasher, ”[2] DOT 318.687-010, 1991 WL 672755, and (2) “hand packager, ” DOT 920.587-018, 1991 WL 687916. (AR 26-27.) Accordingly, he found Plaintiff not disabled. (AR 27.)

         V. DISCUSSION

         Plaintiff argues that the ALJ erred in (1) considering and evaluating the opinion of Dr. Jason B. Miller and (2) assessing Plaintiff's credibility. (See J. Stip. at 3.)

         A. The ALJ Properly Assessed the Medical Evidence

         Plaintiff contends that the ALJ failed to properly consider and evaluate Dr. Miller's medical opinion, including that Plaintiff would be “off task 30% or more of the time.” (Id. at 3-7.) For the reasons discussed below, remand is not warranted on this ground.

         1. Applicable law

         Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did neither. Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than an examining physician's, and an examining physician's opinion is generally entitled to more weight than a nonexamining physician's. Id.

         This is so because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 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. §§ 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 specialization, and other factors. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).

         When a treating physician's opinion is not contradicted by other evidence in the record, it may be rejected only for “clear and convincing” reasons. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). When it is contradicted, the ALJ must provide only “specific and legitimate reasons” for discounting it. Id. (citing Lester, 81 F.3d at 830-31). Furthermore, “[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by ...


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