United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
E. SCOTT United States Magistrate Judge.
Emily Jane Winslow (“Plaintiff”) appeals the
final decision of the Social Security Commissioner
(“ALJ”) denying her application for Disability
Insurance Benefits (“DIB”). For the reasons
discussed below, the Commissioner's decision is AFFIRMED.
filed her disability claim application on December 16, 2011,
alleging an onset disability date of April 1, 2011.
Administrative Record (“AR”) 140-43.
Commissioner denied the claims initially and on
reconsideration in June 2012 and March 2013, respectively,
and Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”). AR 58-81, 92-93. An ALJ
conducted a hearing on April 24, 2014, at which Plaintiff,
who was represented by an attorney, appeared and testified.
AR 36-57. The ALJ issued an unfavorable decision on December
22, 2014. AR 20-30.
found that Plaintiff suffers from the severe impairments of
anxiety, bipolar disorder, post-traumatic stress disorder
(“PTSD”), history of alcohol dependence in
remission, and “left lower lobe
infiltrate.” AR 22. Despite these impairments, the ALJ
found that Plaintiff retained the residual functional
capacity (“RFC”) to perform work at all
exertional levels but with the following non-exertional
limitations: “the claimant can understand, remember and
carry out two-step commands involving simple instructions,
and would be able to maintain concentration, persistence, and
pace to carry out those instructions.” AR 24.
on this RFC and the testimony of a vocational expert
(“VE”), the ALJ found that Plaintiff could not
perform her past relevant work as a sales service
promoter. AR 29. Plaintiff could, however, work as a
basket filler, garment bagger, or rack loader. AR 30. The ALJ
therefore concluded that Plaintiff was not disabled.
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 from
legal error and are supported by substantial evidence based
on the record as a whole. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Substantial evidence means such relevant 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. 1998). “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.
decision of the ALJ will not be reversed for errors that are
harmless.” Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). Generally, an error is harmless if it
either “occurred during a procedure or step the ALJ was
not required to perform, ” or if it “was
inconsequential to the ultimate nondisability
determination.” Stout v. Comm'r of SSA,
454 F.3d 1050, 1055 (9th Cir. 2006).
The Evaluation of Disability.
person is “disabled” for purposes of receiving
Social Security benefits if he is 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
claimant for disability benefits bears the burden of
producing evidence to demonstrate that he was disabled within
the relevant time period. Johnson v. Shalala, 60
F.3d 1428, 1432 (9th Cir. 1995).
The Five-Step Evaluation Process.
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. 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. 20 C.F.R. §§ 404.1520(a)(4)(i),
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, a finding of not
disabled is made and the claim must be denied. Id.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
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. Id.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
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 to
perform his past work; if so, the claimant is not disabled
and the claim must be denied. Id. §§
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.
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.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
That determination comprises the fifth and final step in the
sequential analysis. Id. §§ 404.1520,
416.920; Lester, 81 F.3d at 828 n.5;
Drouin, 966 F.2d at 1257.
appeal presents the sole issue of whether the ALJ properly
evaluated the medical opinions of Tracy Burrell, Ph.D., and
Salvador Arella, M.D. Dkt. 27, Joint Stipulation
(“JS”) at 4.
Burrell, Plaintiff's treating psychologist since August
20, 2012, completed two Mental Disorder Questionnaire Forms
(“MDQ Forms”), one indicating January 14, 2013,
as the date of last examination (AR 309-13) and the second
indicating February 18, 2013, as the date of last examination
Burrell provided multiple opinions that Plaintiff's
mental disorders severely limit her ability to carry out
instructions, daily activities, and social interactions. For
example, Dr. Burrell opined that Plaintiff “has
repeated episodes of depression and PTSD that render her
unable to function in her day-to-day life” (AR 298),
Plaintiff has “poor concentration and follow
through” (AR 299), Plaintiff has “limited social
interactions, ” “explosive anger management
issues, ” and “difficulty with self-care, ”
and Plaintiff's “delusions prevent her from working
as she believes she will eventually work with famous
directors.” AR 300. Plaintiff has a bachelor's
degree in “critical study film/television” from
the University of Southern California. AR 39.
Arella, Plaintiff's treating psychiatrist since April 12,
2013, completed an Evaluation Form for Mental Disorders
(“EMD Form”) dated April 9, 2014. AR 372-376. Dr.
Arella opined that Plaintiff “cannot cope with stress;
confused” (AR 373), “needs assistance to maintain
residence” (id.), and “cannot work an
8-hour schedule.” AR 374. He opined that Plaintiff had
“marked” functional limitations conducting
activities of daily living, functioning socially, and
maintaining concentration, persistence or pace. AR 375. He
reported that within a one-year period, Plaintiff suffered
three episodes of decompensation, each lasting at least two
weeks. Id. He indicated that Plaintiff
has a “current history of one or more years'
inability to function outside a highly supportive living
arrangement with an indication of continued need for such an
arrangement.” AR 376. Finally, Dr. Arella opined that
Plaintiff would miss more than four days of work each month.
rejected the opinions of Drs. Burrell and Arella expressed in
these forms. AR 27-28.
The Treating Physician Rule.
a general rule, more weight should be given to the opinion of
a treating source than to the opinion of doctors who do not
treat the claimant.” Turner v. Comm'r of
SSA, 613 F.3d 1217, 1222 (9th Cir. 2010) (citation
omitted). This rule, however, is not absolute. Where the
treating physician's opinion is not contradicted by an
examining physician, that opinion may be rejected only for
“clear and convincing reasons.” Tackett v.
Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). Where,
however, the opinions of the treating and examining
physicians conflict, if the ALJ wishes to disregard the
opinion of the treating physician, the ALJ must give
“specific, legitimate reasons for doing so that are
based on substantial evidence in the record.”
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995) (citation omitted); see also Orn v. Astrue,
495 F.3d 625, 632 (9th Cir. 2007) (“If the ALJ wishes
to disregard the opinion of the treating physician, he or she
must make findings setting forth specific, legitimate reasons
for doing so that are based on substantial evidence in the
record.” (citation omitted)).
the opinions of Drs. Burrell and Arella are contradicted by
the findings of three consultative examiners, as discussed
below, under Andrews and Orn, the
dispositive question is whether the ALJ gave “specific,