Didinger v. Comm'r of Soc. Sec.

• Decision Date: 04 January 2019
• Docket Number: No. 2:17-CV-1320-DMC,2:17-CV-1320-DMC
• Court: U.S. District Court — Eastern District of California
• Parties: STEPHANIE DIDINGER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

STEPHANIE DIDINGER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:17-CV-1320-DMC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 4, 2019

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties (Docs. 6 and 7), this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are the parties' briefs on the merits (Docs. 11, 12, and 13).

The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is ". . . such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

For the reasons discussed below, the Commissioner's final decision is affirmed.

I. THE DISABILITY EVALUATION PROCESS

To achieve uniformity of decisions, the Commissioner employs a five-step sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed not disabled and the claim is denied;

Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe impairment; if not, the claimant is presumed not disabled and the claim is denied;

Step 3 If the claimant has one or more severe impairments, determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; if the claimant has such an impairment, the claimant is presumed disabled and the clam is granted;

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Step 4 If the claimant's impairment is not listed in the regulations, determination whether the impairment prevents the claimant from performing past work in light of the claimant's residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied;

Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant's residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and the claim is denied.

See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

To qualify for benefits, the claimant must establish the inability to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental impairment of such severity the claimant is unable to engage in previous work and cannot, considering the claimant's age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The claimant establishes a prima facie case by showing that a physical or mental impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER'S FINDINGS

Plaintiff applied for social security benefits on May 4, 2016. See CAR 39.¹ In the application, plaintiff claims disability began on May 1, 2011. See id. In her opening brief, plaintiff alleges disability arising from limitations related to lymphoma, diagnosed in 2011. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on December 27, 2016, before Administrative Law Judge (ALJ) Jean R. Kerins. In a February 28, 2017, decision, the ALJ concluded that plaintiff was not disabled at any time from the alleged onset date through December 31, 2016 (the date last insured) based on the following relevant findings:

1. Through the date last insured, the claimant had the following severe impairment(s): fatigue and situational anxiety;

2. Through the date last insured, the claimant did not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. Through the date last insured, the claimant had the following residual functional capacity: sedentary work; the claimant can understand, remember, and carry out simple and detailed instructions; she can maintain concentration, persistence, and pace for two hours in an eight-hour workday;

4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, through the date last insured the claimant could have performed her past relevant work as a graphic designer;

5. Considering the claimant's age, education, work experience, transferability of skills, residual functional capacity, and vocational expert testimony, through the date last insured there were jobs that existed in significant numbers in the national economy that the claimant could have performed; and

6. Considering the claimant's age, education, work experience, residual functional capacity, and Medical-Vocational Guidelines, the claimant was considered "not disabled" through the date last insured.

Seeid. at 41-61.

After the Appeals Council declined review on April 25, 2017, this appeal followed.

III. DISCUSSION

In her opening brief, plaintiff argues: (1) at Step 4, the ALJ failed to provide clear and convincing reasons for rejecting the opinions of consultative examining physician, Robert James Spensley, M.D., who opined as to limitations which would prevent plaintiff from performing past relevant work; (2) the ALJ erred at Step 5 by relying on vocational expert testimony in response to hypothetical question which did not reflect moderate limitations in concentration, persistence, and pace; and (3) the ALJ erred further at Step 5 with respect to transferability of skills to other work.²

A. Medical Opinions

1. The ALJ's Analysis

At Step 4 of the sequential evaluation process, the ALJ weighed the various medial opinions of record to determine plaintiff's residual functional capacity through the date last insured. See CAR 51-59. Specifically, the ALJ evaluated the opinions of primary care physician, Dr. Patella, testifying medical expert, Dr. Sklaroff, and consultative examining physician, Dr. Spensley. See id. The ALJ also discussed records from treating oncologists, Drs. Kohrt and Miller, but those sources appear not to have rendered opinions regarding plaintiff's functional capabilities. The ALJ rejected Dr. Sklaroffs opinion plaintiff could perform medium work. See id. at 57. As outlined above, the ALJ found instead plaintiff could only perform work at the sedentary exertional level through the date last insured. The ALJ also rejected the opinionsexpressed by Dr. Patella regarding plaintiff's mental capabilities. See id. at 58-59. Plaintiff raises no claims of error with respect to the ALJ's evaluation of the opinions expressed by Drs. Sklaroff and Patella.

As to Dr. Spensley, who performed a consultative examination and rendered opinions regarding plaintiff's mental capabilities, the ALJ stated:

. . .On January 6, 2017, Dr. Spensley interviewed the claimant who described her symptoms. She told Dr. Spensley that she is more emotional, she runs her own business but has no "oomph," and she can no longer multitask. She becomes anxious if she tries to multitask and then "is unable to do anything." She lets a lot of things go at work due to lack of energy. She described that her work has many deadlines and she has had to decrease her work schedule to one job at a time. As a result, her income decreased by 75%.

The claimant told Dr. Spensley that "for a number of months" prior to diagnosis of lymphoma, she "was getting less done." She said her lymphoma "is a

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