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Dodghson v. Berryhill

United States District Court, N.D. California

May 2, 2018

JULIE A DODGHSON, Plaintiff,
v.
NANCY BERRYHILL, Defendant.

          ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 18, 29

          MARIA-ELENA JAMES UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff Julie A. Dodghson brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Nancy Berryhill, the Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits. Pending before the Court are the parties' cross-motions for summary judgment. PMSJ, Dkt. No. 18; DMSJ, Dkt. No. 21. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the parties' positions, the Administrative Record (AR), and the relevant legal authority, the Court hereby GRANTS Plaintiff's motion and DENIES Defendant's cross-motion for the reasons set forth below.

         SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

         On October 25, 2013, Plaintiff filed a claim for Disability Insurance Benefits, alleging disability beginning on January 20, 2013. The Social Security Administration (SSA) denied Plaintiff's claim initially and on reconsideration, finding that Plaintiff did not qualify for disability benefits. Plaintiff requested a hearing before an Administrative Law Judge (ALJ). ALJ Wynne O'Brien Persons conducted a hearing on June 4, 2015. Plaintiff testified in person at the hearing and was represented by counsel, William Tanoos. The ALJ also heard testimony from Vocational Expert (VE) David Dettmer.

         On September 4, 2015, the ALJ issued an unfavorable decision finding that Plaintiff was not disabled. AR 23-32.

         The regulations promulgated by the Commissioner of Social Security provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled.[1] 20 C.F.R. § 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

         The ALJ must first determine whether the claimant is performing “substantial gainful activity, ” which would mandate that the claimant be found not disabled regardless of medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ determined that Plaintiff had not performed substantial gainful activity since January 20, 2013. AR 25.

         At step two, the ALJ must determine, based on medical findings, whether the claimant has a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: bipolar disorder, major depressive disorder, post-traumatic stress disorder, attention deficit hyperactivity disorder, and left carpal tunnel syndrome. AR 25.

         If the ALJ determines that the claimant has a severe impairment, the process proceeds to the third step, where the ALJ must determine whether the claimant has an impairment or combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment either meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets the listings. AR 26-27.

         Before proceeding to step four, the ALJ must determine the claimant's Residual Function Capacity (RFC). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work setting, despite mental or physical limitations caused by impairments or related symptoms. 20 C.F.R. § 404.1545(a)(1). In assessing an individual's RFC, the ALJ must consider all of the claimant's medically determinable impairments, including the medically determinable impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff has the RFC to perform a full range of work at all exertional levels, with non-exertional limitations: frequent left grasping, limited to one- to two- step tasks; of task 5% of workday; would be absent/tardy or need to leave early one time per month; no fast-pace production or assembly work; and need for low-stress work defined as work involving occasional decisions and changes. AR 27-30.

         The fourth step of the evaluation process requires that the ALJ determine whether the claimant's RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f). Past relevant work is work performed within the past 15 years that was substantial gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the ALJ determined that Plaintiff could not perform past relevant work as secretary or typist. AR 30.

         In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there are other jobs existing in significant numbers in the national economy which the claimant can perform consistent with the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on the VE's testimony, Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff could work as a hand packager, laundry worker, and scrap sorter, all occupations that exist in significant numbers in the national economy. AR 30-31.

         This decision became final when the Appeals Council declined to review it on March 6, 2017. AR 1-4. Having exhausted all administrative remedies, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). On November 20, 2017, Plaintiff filed the present Motion for Summary Judgment. On March 20, 2018, after the parties stipulated to several extensions, Defendant filed a Cross-Motion for Summary Judgment. Plaintiff filed her reply on April 10, 2018. Dkt. No. 32.

         LEGAL STANDARD

         This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g). The ALJ's decision must be affirmed if the findings are “supported by substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a scintilla but less than a preponderance” of evidence that “a reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The court must consider the administrative record as a whole, weighing the evidence that both supports and detracts from the ALJ's conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). However, “where the evidence is susceptible to more than one rational interpretation, ” the court must uphold the ALJ's decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Determinations of credibility, resolution of conflicts in medical testimony, and all other ambiguities are to be resolved by the ALJ. Id.

         Additionally, the harmless error rule applies where substantial evidence otherwise supports the ALJ's decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not reverse an ALJ's decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.'” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).

         DISCUSSION

          A. Weighing Opinion of Treating Physician

         1. Legal Standard

          “Cases in [the Ninth Circuit] distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, an opinion of a treating physician should be favored over that of a non-treating physician. Id. at 830-31. However, a treating physician's opinion “is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability.” Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The opinion of an examining physician generally is entitled to greater weight than the opinion of a non-examining physician, Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008), and the “opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician, Lester, 81 F.3d at 831. See also 20 C.F.R. § 404.1527(c)(3) (“[B]ecause nonexamining sources have no examining or treating relationship with you, the weight we will give their medical opinions will depend on the degree to which they provide supporting explanations for their medical opinions.”).

         In order to reject the “uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence.” Ryan, 528 F.3d at 1198 (internal quotation marks and citation omitted). “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. (citation omitted). An ALJ can satisfy the “substantial evidence” requirement by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “The ALJ must do more than offer [] conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.” Id. (citation omitted). An ALJ errs when he or she does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another. See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). In other words, it is error for an ALJ not to offer a substantive basis before assigning little weight to the medical opinion. See Id. Generally, the SSA will give greater weight to an opinion that is more consistent with the record as a whole. 20 C.F.R. § 416.927(c)(4).

         2. Dr. Michael Ciranni, Psy. D.

         Dr. Ciranni began treating Plaintiff on November 22, 2011. AR 264. He noted a history of bipolar disorder and the fact Plaintiff was being seen by another treater for ongoing medication management. Dr. Ciranni prescribed a refill of Seroquel and scheduled a follow-up assessment. On December 2, 2011, Dr. Ciranni conducted a medication assessment. He noted Plaintiff's history of past psychiatric treatment, including: inpatient treatment once in the 1990s and once in 2003 for mania “in the absence of substance abuse, ” as well as continuous outpatient therapy beginning before 2003 and continuing through the date of the assessment. AR 267. Plaintiff had a more recent trauma in 2009 due to waking up next to her partner after he had died in his sleep due to sleep apnea; this manifests as feelings of panic, avoidance of sleeping, sleeping on an incline, difficulty sleeping, poor concentration, and exaggerated started response. Id. Plaintiff's prescriptions have included neuroleptics, mood stabilizers, antidepressants, anxiolytics, and psychostimulants. AR 267-69.

         Dr. Ciranni noted Plaintiff had some symptoms that may be congruent with Attention Deficit Hyperactivity Disorder (ADHD), including poor follow through on instructions, difficulty organizing, easily distracted, forgetful in daily activities, as well as hyperactive symptoms of excess fidgeting, restlessness, talking excessively, blurting out answers, and problems with conversational turn-taking. AR 269. Dr. Ciranni opined that these “may have been contributing to impairment in occupational functioning, in terms of multiple job losses as office assistant, and do not seem to appear exclusively during manic episodes.” Id. Plaintiff did not meet the full criteria for ADHD, and Dr. Ciranni noted there was some overlap of symptoms with her anxiety disorder. Id. He added a provisional diagnosis of ADHD NOS (not otherwise specified), in partial remission.

         On January 20, 2012, Dr. Ciranni noted he had spoken with Plaintiff's counselor at the Marin Treatment Center (MTC), and learned of an incident where Plaintiff “appeared manic, [and] apparently threw a glass of water at someone, behavior that could have led to her being dismissed from MTC, except for her long history with them and known bipolar diagnosis.” AR 278. When discussing the incident with Dr. Ciranni ten days later, Plaintiff acknowledged she did not react as well as she should have, and explained the atypical behavior was caused by stress due to having her car impounded. AR 281. Dr. Ciranni observed MTC's concern for her reflected her behavior that day represented a deviation from normal rather than her characteristic personality. AR 281.

         On March 13, 2012, Dr. Ciranni noted that Plaintiff had gotten into an “interpersonal conflict” with one of her mother's friends after the friend criticized Plaintiff for coughing, and her mother uninvited her to gatherings of friends at her home as a result. AR 285.

         On May 14, 2012, MTC contacted Dr. Ciranni again to inform him they had noticed Plaintiff getting more manic, “in context of missing does of Seroquel and decreasing Lithium dose.” AR 291. At an appointment with Plaintiff the following day, Dr. Ciranni noted Plaintiff appeared “more pressured” and she reported having panic attacks after she moved her Seroquel dose to the afternoon; as a result, she started skipping Seroquel doses and decreasing her Lithium dose. Dr. Ciranni and Plaintiff agreed ...


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