Bernardino v. Colvin

Filing 30

ORDER: Statement of Legal Principles for Summary Judgment Hearing. Signed by Magistrate Judge Andrew G. Schopler on 9/26/2017.(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Patrick BERNARDINO, Case No.: 16-cv-2941-AGS Plaintiff, 12 13 14 15 Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 19 20 21 22 23 STATEMENT OF LEGAL PRINCIPLES FOR SUMMARY JUDGMENT HEARING v. The Court has considered the following legal principles for today’s summary judgment hearing and will apply these principles to the Court’s ultimate ruling: A. Credibility In evaluating the credibility of subjective symptom testimony, “the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). If so, 24 and absent evidence of malingering, “the ALJ can only reject the claimant’s testimony 25 about the severity of the symptoms if she gives ‘specific, clear and convincing reasons’ for 26 the rejection.” Id. (citations omitted). “General findings are insufficient; rather, the ALJ 27 must identify what testimony is not credible and what evidence undermines the claimant’s 28 1 16-cv-2941-AGS 1 complaints.” Id. (citation omitted). These adverse credibility findings must be “sufficiently 2 specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 3 testimony.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010) 4 (citation omitted). In weighing a claimant’s testimony, the ALJ may consider all the typical 5 credibility factors, such as prior inconsistent statements, falsehoods, and discrepancies 6 between the claimant’s statements and conduct. Ghanim, 763 F.3d at 1163; Light v. Soc. 7 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Even where the ALJ makes an error, or 8 more than one, in his analysis, “[s]o long as there remains substantial evidence supporting 9 the ALJ’s conclusions on credibility and the error does not negate the validity of the ALJ’s 10 ultimate credibility conclusion, such is deemed harmless and does not warrant reversal.” 11 Carmickle v. Comm’r of Sec. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (alterations 12 and citations omitted). 13 B. Treating Physician 14 If a treating physician’s opinion is well-supported and consistent with the rest of the 15 record, it must be given “controlling weight.” 20 C.F.R. § 404.1527(c)(2). When the 16 treating physician’s opinion is contradicted by another doctor, “an ALJ may only reject it 17 by providing specific and legitimate reasons that are supported by substantial evidence.” 18 Trevizo v. Berryhill, ___ F.3d ___, No. 15-16277, 2017 WL 4053751, at *7 (9th Cir. Sept. 19 14, 2017) (citation omitted). “The ALJ can meet this burden by setting out a detailed and 20 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 21 thereof, and making findings.” Id. (citations omitted). The harmless error analysis also 22 applies in the treating physician context. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 23 Cir. 2015) (holding that “harmless error analysis applies in the social security context,” 24 including in the area of a “treating source’s medical opinion”); see also Baily v. Colvin, 25 659 F. App’x 413, 415 (9th Cir. 2016) (“Any error in the ALJ’s additional reasons for 26 rejecting [the treating physician’s] opinions was harmless.”). 27 28 2 16-cv-2941-AGS 1 C. Lay Witness Testimony 2 Lay witness testimony is considered an “other source” by the social security 3 regulations and are not afforded the same deference as accepted medical sources, so the 4 ALJ need only give “reasons germane to each witness” to reject such testimony. Molina v. 5 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted). Harmless error applies to 6 lay witness testimony in the same way it applies to credibility determinations. See Oh v. 7 Astrue, No. EDCV 10-1076-MLG, 2011 WL 486592, at *3 (C.D. Cal. Feb. 3, 2011). 8 D. Severity 9 An impairment is “not severe” if it does not “significantly limit” the ability to do 10 basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). But “[a]mple authority 11 cautions against a determination of nondisability at step two.” Ortiz v. Comm’r of Soc. Sec., 12 425 F. App’x 653, 655 (9th Cir. 2011). “[T]he step-two inquiry is a de minimis screening 13 device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 14 1996). “An impairment or combination of impairments can be found ‘not severe’ only if 15 the evidence establishes a slight abnormality that has no more than a minimal effect on an 16 individual[’]s ability to work.” Id. (citation omitted). But even if the ALJ fails to conclude 17 an impairment is severe, if he goes on to “extensively discuss[]” the impairment “at Step 4 18 of the analysis,” any error in “neglecting to list [those impairments as severe] at Step 2 . . . 19 was harmless.” Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (citation omitted). 20 Dated: September 26, 2017 21 22 23 24 25 26 27 28 3 16-cv-2941-AGS

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