United States District Court, W.D. Washington, Seattle
ANGELA E. DELEON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING COMMISSIONER'S FINAL
Honorable Richard A. Jones United States District Judge.
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.
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.
the five-step disability evaluation process,  the ALJ found:
Step one: Ms. DeLeon has not engaged in
substantial gainful activity since July 20, 2008, the alleged
Step two: Ms. DeLeon has the following
severe impairments: traumatic brain injury, cervical spine
degenerative disc disease, post-concussion syndrome and
Step three: These impairments do not meet or
equal the requirements of a listed impairment.
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
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.
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).
Karleen Swartztrauber, M.D.
DeLeon contends the ALJ erred in evaluating Dr.
Swarztrauber's opinion. Dkt. 17 at 3-4. The Court
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.
Ms. DeLeon fails to establish the ALJ harmfully erred in
evaluating Dr. Swarztrauber's opinion.