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Deleon v. Berryhill

United States District Court, W.D. Washington, Seattle

November 13, 2017

ANGELA E. DELEON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING COMMISSIONER'S FINAL DECISION

          Honorable Richard A. Jones United States District Judge.

         Angela E. DeLeon seeks review of the denial of her application for Supplemental Security Income and Disability Insurance Benefits. Ms. DeLeon contends the ALJ erred in: (1) evaluating the medical evidence; (2) her own symptom testimony; (3) the lay evidence; (4) failing to find Ms. DeLeon met a Listing; and (5) evaluating her residual functional capacity (RFC) and finding she could perform other jobs in the national economy at step five. Dkt. 17 at 2. As discussed below, the Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.

         BACKGROUND

         On November 28, 2008, Ms. DeLeon applied for benefits, alleging disability as of July 20, 2008. Tr. 772. Ms. DeLeon's applications were denied initially and on reconsideration. Tr. 58-98, 772. The ALJ conducted a hearing on January 31, 2011, and on February 14, 2011, issued an unfavorable decision. 37-57. The Appeals Council denied review and on appeal, based on the agreement of the parties, the District Court reversed and remanded the case for further proceedings. Tr. 884-910. After the ALJ conducted a hearing on December 15, 2014, and a supplemental hearing on April 14, 2015, the ALJ issued a decision again finding Ms. DeLeon not disabled. Tr. 772-88.

         THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [1] the ALJ found:

Step one: Ms. DeLeon has not engaged in substantial gainful activity since July 20, 2008, the alleged onset date.
Step two: Ms. DeLeon has the following severe impairments: traumatic brain injury, cervical spine degenerative disc disease, post-concussion syndrome and depression.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Ms. DeLeon can perform light work except she cannot climb ladders, ropes or scaffolds. She can no more than occasionally do overhead work including reaching overhead. She should avoid hazardous machinery in an industrial environment. She is permitted to drive. She is restricted to simple, entry level work and should have no more than occasional interaction with the public and coworkers.
Step four: Ms. DeLeon cannot perform past relevant work.
Step five: As there are jobs that exist in significant numbers in the national economy that Ms. DeLeon can perform, she is not disabled.

Tr. 772-88. The Appeals Council denied Ms. DeLeon's request for review making the ALJ's decision the Commissioner's final decision. Tr. 751-56.[3]

         DISCUSSION

         A. Medical Evidence

         The ALJ must provide “clear and convincing reasons” to reject the uncontradicted opinion of a treating or examining doctor. Lester v. Chater, 81 F.3d 821, 830, 831 (9th Cir. 1996). When contradicted, a treating or examining doctor's opinion may not be rejected without “specific and legitimate reasons” that are supported by substantial evidence in the record. Id. An ALJ may reject the opinion of a non-examining doctor by referring to specific evidence in the record. See Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).

         1. Karleen Swartztrauber, M.D.

         Ms. DeLeon contends the ALJ erred in evaluating Dr. Swarztrauber's opinion. Dkt. 17 at 3-4. The Court disagrees.

         Ms. DeLeon points to several observations and symptoms noted by Dr. Swarztrauber in her treatment notes including that in December 2018, 6 months after her accident, Ms. DeLeon exhibited mild left facial weakness, impaired memory, difficulty explaining her symptoms, and that she smelled poorly. Dkt. 17 at 3; Tr. 453-56. Ms. DeLeon also notes that in March 2009, Dr. Swarztrauber noted Ms. DeLeon had shown expected improvement over the last three months but still had cognitive issues, difficulty multitasking, short term memory loss, headaches, dizziness, episodes of possible loss of consciousness and paresthesias in the arms. Dkt. 17 at 3; Tr. 491-97. Ms. DeLeon argues the ALJ erred in failing to acknowledge Dr. Swartztrauber's opinion was consistent with the opinions of Richard J. Perillo, Ph.D., Kimberly Schleef, D.O., and John Guerreiro, M.D. Dkt. 17 at 4. However, this conclusory argument fails to establish harmful error on the part of the ALJ. The ALJ discussed Dr. Swartztrauber's treatment notes and the symptoms described therein in evaluating the medical evidence and Ms. DeLeon's testimony and in formulating the RFC. Tr. 779-80. Although Ms. DeLeon recites several observations and symptoms described in Dr. Swarztrauber's treatment notes, she fails to identify any functional limitation contained in Dr. Swartztrauber's opinion that the ALJ failed to account for in the RFC or in the hypothetical to the vocational expert. As such, Ms. DeLeon failed to meet her burden of showing the ALJ harmfully erred in evaluating Dr. Swartztrauber's opinion. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an error is harmless where it is “‘inconsequential to the ultimate nondisability determination'” (quoting Carmickle v. Comm'r of Social Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008))); see Shinseki v. Sanders, 556 U.S. 396, 409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) (“[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.”). Moreover, as discussed below, the ALJ properly discounted the opinions of Dr. Perrillo, Dr. Schleef and Dr. Guerreiro.

         In sum, Ms. DeLeon fails to establish the ALJ harmfully erred in evaluating Dr. Swarztrauber's opinion.

         2. Richard ...


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