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Winslow v. Berryhill

United States District Court, C.D. California

November 17, 2017

EMILY JANE WINSLOW, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCOTT United States Magistrate Judge.

         Plaintiff 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.

         I.

         BACKGROUND

         Plaintiff filed her disability claim application on December 16, 2011, alleging an onset disability date of April 1, 2011. Administrative Record (“AR”) 140-43.

         The 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.

         The ALJ 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.”[2] 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.

         Based 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.[3] 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. Id.

         II.

         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 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.

         “A 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).

         A. The Evaluation of Disability.

         A 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).

         B. 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. 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), 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, a finding of not disabled is made and the claim must be denied. Id. §§ 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. Id. §§ 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 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. 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. 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.

         III.

         ISSUE PRESENTED

         Plaintiff's 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.

         Dr. 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 (AR 298-302).[4]

         Dr. 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.

         Dr. 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.[5] AR 375. He reported that within a one-year period, Plaintiff suffered three episodes of decompensation, each lasting at least two weeks.[6] 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. Id.

         The ALJ rejected the opinions of Drs. Burrell and Arella expressed in these forms. AR 27-28.

         IV.

         DISCUSSION

         A. The Treating Physician Rule.

         “As 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)).

         Because 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, legitimate ...


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