Opinion
No. CV 16-76 AGR
03-31-2017
SHERRY WHITE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
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. (Dkt. Nos. 11, 12.) On March 30, 2017, the parties 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.
I.
PROCEDURAL BACKGROUND
White filed applications for disability insurance benefits and supplemental security income benefits on August 3, 2011. In both applications, she alleged an onset date of January 22, 2010. Administrative Record ("AR") 11. The applications were denied initially and on reconsideration. AR 11, 124-25, 152-53. White requested a hearing before an Administrative Law Judge ("ALJ"). On May 5, 2014, the ALJ conducted a hearing at which White and a vocational expert ("VE") testified. AR 28-51. On June 13, 2014, the ALJ issued a decision denying benefits. AR 8-22. On November 16, 2015, the Appeals Council denied review. AR 1-3. This action followed.
II.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
"Substantial evidence" means "more than a mere scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.
III.
DISCUSSION
A. Disability
A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and quotation marks omitted).
B. The ALJ's Findings
The ALJ found that White met the insured status requirements through March 31, 2012. AR 13. Following the five-step sequential analysis applicable to disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006), the ALJ found that White had the severe impairments of cervical degenerative disc disease, obesity; diabetes mellitus; and right rotator cuff tear. AR 14. She had the residual functional capacity ("RFC") to perform light work except that she can frequently perform postural activities; occasionally use ladders, ropes or scaffolds; and frequently perform overhead reaching with the right upper extremity. AR 18. White was capable of performing her past relevant work of day care worker and cafeteria attendant as generally performed. AR 21.
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.
C. Examining Physician
An examining physician's opinion constitutes substantial evidence when, as here, it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). When an examining physician's opinion is contradicted, "it may be rejected for 'specific and legitimate reasons that are supported by substantial evidence in the record.'" Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted). "'The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.'" Ryan v. Comm'r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation omitted) (emphasis omitted). However, a non-examining physician's opinion may serve as substantial evidence when it is supported by other evidence in the record and is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
Dr. Bagner performed a psychiatric evaluation of White on January 26, 2012. AR 398-401. Based on the mental status examination, Dr. Bagner observed that White was alert, cooperative and anxious, with good eye contact. Her speech was slow but clear, coherent and soft in volume. Her mood was depressed but there was no psychomotor retardation. Her thought process and thought content did not show abnormality and she denied any hallucinations. She was able to recall 3/3 objects immediately and 2/3 after five minutes, and could perform serial three's. AR 400.
Dr. Bagner diagnosed major depressive disorder and assessed a Global Assessment of Functioning (GAF) score of 65. AR 401. He opined that White had no limitation in her ability to follow simple instructions and only mild limitation in her ability to follow detailed instructions. White was mildly limited in her ability to interact with the public, coworkers and supervisors; and comply with job rules such as attendance. She was moderately limited in her ability to respond to changes in a routine work environment and to work pressure due to a low threshold for frustration. Id.
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. --------
At step two of the sequential analysis, the ALJ found that White's mental impairment did not cause more than minimal limitation in her ability to perform basic mental work activities and was therefore non-severe. AR 15. White had mild limitations in activities of daily living, social functioning, and concentration, persistence or pace. The record contained no episodes of decompensation of extended duration. AR 16. At step four of the sequential analysis, the ALJ noted that White made no complaint of mental limitations at the hearing, and he found insufficient evidence of a supportable limitation in her functional capacity due to a mental health impairment. AR 20. The ALJ gave Dr. Bagner's opinion minimal weight based on White's failure to seek mental 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 insufficient. Even assuming error at step two, any error was harmless because prejudice could occur only in later steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (failure to address particular impairment at step two is harmless when ALJ evaluates that impairment in later step); see also Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ's error harmless when it is "inconsequential to the ultimate nondisability determination"). White does not argue that the ALJ erred at step four of the sequential analysis. There is no showing that Dr. Bagner's relatively benign opinion, accepted at face value, would preclude White's past relevant work. The ALJ found, based on the VE's testimony, that White could perform her past relevant work even with the additional limitation that she was precluded from high production quota jobs. AR 21.
IV.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. DATED: March 31, 2017
/s/_________
ALICIA G. ROSENBERG
United States Magistrate Judge