Sherry White v. Carolyn W. Colvin

Filing 32

MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff White filed this action on January 5, 2016. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. On March 30, 2017, the part ies filed a Joint Stipulation ("JS") that addressed the disputed issue. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SHERRY WHITE,

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Plaintiff,

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

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No. CV 16-76 AGR

MEMORANDUM OPINION AND ORDER

Plaintiff White filed this action on January 5, 2016. Pursuant to 28 U.S.C. §

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636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 11,

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12.) On March 30, 2017, the parties filed a Joint Stipulation (“JS”) that addressed the

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disputed issue. The court has taken the matter under submission without oral

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argument.

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Having reviewed the entire file, the court affirms the decision of the
Commissioner.

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I.

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PROCEDURAL BACKGROUND

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White filed applications for disability insurance benefits and supplemental security

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income benefits on August 3, 2011. In both applications, she alleged an onset date of

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January 22, 2010. Administrative Record (“AR”) 11. The applications were denied

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initially and on reconsideration. AR 11, 124-25, 152-53. White requested a hearing

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before an Administrative Law Judge (“ALJ”). On May 5, 2014, the ALJ conducted a

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hearing at which White and a vocational expert (“VE”) testified. AR 28-51. On June 13,

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2014, the ALJ issued a decision denying benefits. AR 8-22. On November 16, 2015,

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the Appeals Council denied review. AR 1-3. This action followed.

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II.

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this court has authority to review the

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Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not

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supported by substantial evidence, or if it is based upon the application of improper

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legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam);

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Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

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“Substantial evidence” means “more than a mere scintilla but less than a

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preponderance – it is such relevant evidence that a reasonable mind might accept as

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adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether

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substantial evidence exists to support the Commissioner’s decision, the court examines

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the administrative record as a whole, considering adverse as well as supporting

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evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than

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one rational interpretation, the court must defer to the Commissioner’s decision.

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Moncada, 60 F.3d at 523.

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III.

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DISCUSSION

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A.

Disability

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A person qualifies as disabled, and thereby eligible for such benefits, “only if his

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physical or mental impairment or impairments are of such severity that he is not only

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unable to do his previous work but cannot, considering his age, education, and work

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experience, engage in any other kind of substantial gainful work which exists in the

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national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and

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quotation marks omitted).

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B.

The ALJ’s Findings

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The ALJ found that White met the insured status requirements through March 31,

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2012. AR 13. Following the five-step sequential analysis applicable to disability

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determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 the ALJ

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found that White had the severe impairments of cervical degenerative disc disease,

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obesity; diabetes mellitus; and right rotator cuff tear. AR 14. She had the residual

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functional capacity (“RFC”) to perform light work except that she can frequently perform

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postural activities; occasionally use ladders, ropes or scaffolds; and frequently perform

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overhead reaching with the right upper extremity. AR 18. White was capable of

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performing her past relevant work of day care worker and cafeteria attendant as

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generally performed. AR 21.
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An examining physician’s opinion constitutes substantial evidence when, as

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Examining Physician

here, it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th

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The five-step sequential analysis examines whether the claimant engaged in
substantial gainful activity, whether the claimant’s impairment is severe, whether the
impairment meets or equals a listed impairment, whether the claimant is able to do his
or her past relevant work, and whether the claimant is able to do any other work.
Lounsburry, 468 F.3d at 1114.
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Cir. 2007). When an examining physician's opinion is contradicted, “it may be rejected

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for ‘specific and legitimate reasons that are supported by substantial evidence in the

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record.’” Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted).

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“‘The opinion of a nonexamining physician cannot by itself constitute substantial

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evidence that justifies the rejection of the opinion of either an examining physician or a

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treating physician.’” Ryan v. Comm’r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation

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omitted) (emphasis omitted). However, a non-examining physician’s opinion may serve

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as substantial evidence when it is supported by other evidence in the record and is

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consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

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Dr. Bagner performed a psychiatric evaluation of White on January 26, 2012. AR

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398-401. Based on the mental status examination, Dr. Bagner observed that White was

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alert, cooperative and anxious, with good eye contact. Her speech was slow but clear,

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coherent and soft in volume. Her mood was depressed but there was no psychomotor

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retardation. Her thought process and thought content did not show abnormality and she

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denied any hallucinations. She was able to recall 3/3 objects immediately and 2/3 after

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five minutes, and could perform serial three’s. AR 400.
Dr. Bagner diagnosed major depressive disorder and assessed a Global

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Assessment of Functioning (GAF) score of 65.2 AR 401. He opined that White had no

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limitation in her ability to follow simple instructions and only mild limitation in her ability

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to follow detailed instructions. White was mildly limited in her ability to interact with the

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public, coworkers and supervisors; and comply with job rules such as attendance. She

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was moderately limited in her ability to respond to changes in a routine work

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environment and to work pressure due to a low threshold for frustration. Id.

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A GAF score of 61-70 indicates some mild symptoms “(e.g., depressed mood and
mild insomnia) or some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well,
has some meaningful interpersonal relationships.” Diagnostic and Statistical Manual of
Mental Disorders (“DSM-IV-TR”) 34.
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At step two of the sequential analysis, the ALJ found that White’s mental

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impairment did not cause more than minimal limitation in her ability to perform basic

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mental work activities and was therefore non-severe. AR 15. White had mild limitations

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in activities of daily living, social functioning, and concentration, persistence or pace.

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The record contained no episodes of decompensation of extended duration. AR 16. At

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step four of the sequential analysis, the ALJ noted that White made no complaint of

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mental limitations at the hearing, and he found insufficient evidence of a supportable

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limitation in her functional capacity due to a mental health impairment. AR 20. The ALJ

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gave Dr. Bagner’s opinion minimal weight based on White’s failure to seek mental

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health treatment and the ALJ’s findings. AR 20-21.
White’s argument that the ALJ erred at step two of the sequential analysis is

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insufficient. Even assuming error at step two, any error was harmless because

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prejudice could occur only in later steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th

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Cir. 2007) (failure to address particular impairment at step two is harmless when ALJ

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evaluates that impairment in later step); see also Stout v. Comm’r, 454 F.3d 1050, 1055

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(9th Cir. 2006) (ALJ’s error harmless when it is “inconsequential to the ultimate

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nondisability determination”). White does not argue that the ALJ erred at step four of

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the sequential analysis. There is no showing that Dr. Bagner’s relatively benign

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opinion, accepted at face value, would preclude White’s past relevant work. The ALJ

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found, based on the VE’s testimony, that White could perform her past relevant work

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even with the additional limitation that she was precluded from high production quota

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jobs. AR 21.

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IV.

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ORDER

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IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.

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DATED: March 31, 2017
ALICIA G. ROSENBERG
United States Magistrate Judge

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