Thompson v. Colvin

• Decision Date: 16 January 2014
• Docket Number: No. 2:12-cv-1850 AC,2:12-cv-1850 AC
• Court: U.S. District Court — Eastern District of California
• Parties: RHONDA RAMONA THOMPSON, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

RHONDA RAMONA THOMPSON, Plaintiff, v. CAROLYN W. COLVIN,Acting Commissioner of Social Security, Defendant.

No. 2:12-cv-1850 AC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: January 16, 2014

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"). The parties' cross-motions for summary judgment are pending. For the reasons discussed below, the court will grant in part plaintiff's motion for summary judgment and will deny the Commissioner's cross-motion for summary judgment.

PROCEDURAL BACKGROUND

Plaintiff filed an application for DBI on April 11, 2005, alleging disability beginning on February 4, 2004. Administrative Record ("AR") 74-79. Plaintiff's application was denied initially and again upon reconsideration. AR 31-36, 40-44. On September 4, 2007, a hearing was held before administrative law judge ("ALJ") Charles D. Reite, who thereafter issued anunfavorable decision. AR 455-65. The Appeals Council granted plaintiff's request for review of this decision and remanded the matter on May 25, 2010 for further consideration. AR 466-69. On September 22, 2010, a rehearing was held before a different ALJ, K. Kwon. AR 654-703. On December 20, 2010, ALJ Kwon also issued an unfavorable decision, finding as follows (citations to 20 C.F.R. omitted):

1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2009.

2. The claimant did not engage in substantial gainful activity (SGA) during the period from her alleged onset date of February 4, 2004 through her last date insured (DLI) of September 30, 2009.

3. Through the date last insured, the claimant had the following severe impairments: depression, plantar fasciitis; and pelvic impairment with pelvic pain of unknown etiology.

4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1576(b) except with the ability to do simple, routine unskilled light work with a sit/stand option.

6. Through the date last insured, the claimant was unable to perform any past relevant work.

7. The claimant was born on August 27, 1965 and was 44 years old, which is defined as a younger individual 18-49, on the date last insured.

8. The claimant has at least a high school education and is able to communicate in English.

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills.

10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed.

11. The claimant was not under a disability, as defined in the Social Security Act, at any time from February 4, 2004, the alleged onset date, through September 30, 2009, the date last insured.

AR 15-28.

Plaintiff requested review of the ALJ's decision by the Appeals Council, but the Council denied review on May 15, 2012, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 10-12.

FACTUAL BACKGROUND

Born on August 27, 1965, AR 74, plaintiff was 38 years old on the alleged onset date of disability and 45 years old at the time of the second administrative hearing. Plaintiff has a high school education, AR 660, and last worked at Costco for 14 years as a returns processor, a cashier, and in marketing promotions. AR 661-62. Plaintiff was on part-time status at Costco since 2000. AR 661.

LEGAL STANDARDS

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted).

Although this court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9thCir. 1985).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

ANALYSIS

Plaintiff seeks summary judgment on the grounds that: (1) the ALJ's assessment of residual functional capacity ("RFC") is not supported by substantial evidence, (2) the ALJ failed to properly consider the opinions of plaintiff's treating gynecologists, (3) the ALJ improperly found plaintiff to be not fully credible, and (4) the ALJ failed to consider plaintiff's sleep disturbances when finding that she could perform light work. The Commissioner, in turn, argues that the ALJ's decision is supported by substantial evidence and is free from legal error.

A. Plaintiff's RFC and Her Ability to Interact with the Public

The ALJ found that plaintiff has the residual functional capacity ("RFC") to perform light work except with the ability to do simple, routine unskilled light work with a sit/stand option. At the September 22, 2010 rehearing, vocational expert Michael Stinson was asked what jobs plaintiff could perform with this RFC, to which Mr. Stinson responded that plaintiff could work as a ticket seller / cashier. AR 698. Plaintiff contends the ALJ committed error in failing to consider the May 16, 2005 opinion of a consultative examiner, Dr. David E. Gross, who opinedthat plaintiff did not have an adequate capacity for dealing with the public. See AR 399-401. Since working as a ticket seller necessarily implies work with the public, plaintiff argues that giving Dr. Gross's opinion proper weight would have resulted in a finding of disability.

Assuming arguendo the ALJ erred in failing to consider or credit Dr. Gross's opinion, the court finds any such error to be harmless. To determine whether an error is harmless, a court looks to whether the mistake was non-prejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). In this case, plaintiff contends that crediting Dr. Gross's opinion would have resulted in a disability finding because the job identified by the vocational expert required public contact, which Dr. Gross explicitly stated would be difficult for plaintiff. But the vocational expert also identified a number of other jobs at a sedentary level that plaintiff could perform, including document preparer, which does not require significant public contact. See AR 699; 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(c) (defining residual functional capacity as the "maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs.") (emphasis added).

B. The Opinions of a Treating and an Attending Gynecologist

Plaintiff next argues that the ALJ erred in her treatment of the opinions of treating gynecologists, Dr. Susana Gonzalez and Dr. Jose Baldonado.

1. Legal Standards

Three types of physicians may offer opinions in social security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (nonexamining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In general, the opinion of a treating doctor is accorded more weight than the...