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Darling v. Berryhill

United States District Court, E.D. Washington

September 6, 2017

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


          LONNY R. SUKO Senior United States District Judge

         BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 15) and the Defendant's Motion For Summary Judgment (ECF No. 20).


         Rebecca Lynn Darling, Plaintiff, applied for Title XVI Supplemental Security Income benefits (SSI) on September 17, 2012. The application was denied initially and on reconsideration. Plaintiff timely requested a hearing which was held on November 20, 2014, before Administrative Law Judge (ALJ) Donna L. Walker. Plaintiff testified at the hearing, as did Medical Expert (ME) Marian S. Martin, Ph.D., and Vocational Expert (VE) Carly Coughlin. On January 29, 2015, the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council denied a request for review of the ALJ's decision, making that decision the Commissioner's final decision subject to judicial review. The Commissioner's final decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3).


         The facts have been presented in the administrative transcript, the ALJ's decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At the time of her application for SSI benefits, Plaintiff was 20 years old, and at the time of the administrative hearing, she was 23 years old. She has a high school education and no past relevant work experience.


         "The [Commissioner's] determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence...." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982).

         It is the role of the trier of fact, not this court to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).

         A decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987).


         Plaintiff argues the ALJ erred in: 1) rejecting Plaintiff's symptom testimony; 2) failing to properly consider and weigh medical opinion evidence; and 3) failing to determine that Plaintiff has a severe medically determinable impairment meeting Listing 12.05C in 20 C.F.R. Part 404, Subpart P, App. 1.



         The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be under a disability only if her impairments are of such severity that the claimant is not only unable to do her previous work but cannot, considering her age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. Id.

         The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 C.F.R. § 416.920(a)(4)(I). If she is not, the decision-maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares the claimant's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step which determines whether the impairment prevents the claimant from performing work she has performed in the past. If the claimant is able to perform her previous work, she is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step in the process determines whether she is able to perform other work in the national economy in view of her age, education and work experience. 20 C.F.R. § 416.920(a)(4)(v).

         The initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The initial burden is met once a claimant establishes that a physical or mental impairment prevents her from engaging in her previous occupation. The burden then shifts to the Commissioner to show (1) that the claimant can perform other substantial gainful activity and (2) that a "significant number of jobs exist in the national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).


         The ALJ found the following:

1) Plaintiff has “severe” medical impairments, those being developmental language disorder, borderline intellectual functioning, depression and social anxiety;
2) Plaintiff's impairments do not meet or equal any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1;
3) Plaintiff has the residual functional capacity (RFC) to perform a full range of work at all exertional levels, but with the following nonexertional limitations: she has the ability to engage in entry level, unskilled work; remember locations and worklike procedures; understand and remember short and simple verbal instructions; carry out short and simple verbal instructions; would work best in jobs taught by demonstration, rather than by written instructions; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision work in proximity to, but not in close cooperation with others; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards or neatness and cleanliness; respond to normal changes in the work setting; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; set realistic goals or make plans independently of others; and would work best in jobs with no public contact; and
4) Plaintiff's RFC allows her to perform jobs existing in significant numbers in the national economy as identified by the VE, including hand packager, production assembler and laundry aid.

         Accordingly, the ALJ concluded the Plaintiff is not disabled.


         It is settled law in the Ninth Circuit that in a disability proceeding, the opinion of a licensed treating or examining physician or psychologist is given special weight because of his/her familiarity with the claimant and his/her condition. If the treating or examining physician's or psychologist's opinion is not contradicted, it can be rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the ALJ may reject the opinion if specific, legitimate reasons that are supported by substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

         Plaintiff underwent a psychological assessment by Gerald Gardner, Ph.D., on November 13, 2012. This was a consultative examination performed upon referral by the State of Idaho Disability Determination Services. Plaintiff denied any history of psychiatric treatment. She indicated she had depressed moods, but had never discussed that with a doctor and had never been on medicine for her moods. (AR at p. 279). She indicated she had never been “seriously suicidal.” Currently, her mood was good and she stated she was not usually down or depressed. She denied feelings of helplessness or hopelessness. She indicated she gets nervous around people and suggested she would avoid talking to retail clerks. Plaintiff said her sleep was good, that her energy level depends on the day, that sometimes she was able to focus and get things done and that “[o]ther times, she gets bored with housekeeping and does not have motivation for that.” She told Dr. Gardner she had no problems with grooming or hygiene and that “[s]he cooks occasionally[, ] but has difficulty reading recipes so [her boyfriend] does most of the cooking, ” while “[s]he is largely limited to [T]op Ramen and sandwiches.” She indicated that “[s]he knows how to do all the basic housecleaning chores[, ] but sometimes lacks motivation.” Plaintiff has never had a driver's license and indicated she did not take driver's education due to lack of income. She told the doctor she will occasionally go places by herself and will take the bus to the library or to Wal-Mart. Plaintiff opined that she was careful with money and believes she ensures she receives the correct change. (AR at p. 280).

         Plaintiff informed Dr. Gardner that she was in special education all of her life, was in speech therapy from kindergarten through the sixth grade, and graduated from the special education program at her high school. She indicated she had a few friends and hung out with the kids she met in special education classes. ...

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