Noa v. Berryhill

POLAVAA NOA, Plaintiff, v. NANCY A. BERRYHILL, Defendant.

Case No. 17-cv-05147-MEJ

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

April 6, 2018

ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 19, 20

INTRODUCTION

Plaintiff Polavaa Noa brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits. Pending before the Court are the parties' cross-motions for summary judgment. PMSJ, Dkt. No. 19; DMSJ, Dkt. No. 20. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the parties' positions, the Administrative Record (AR), and the relevant legal authority, the Court GRANTS IN PART Plaintiff's motion and DENIES Defendant's cross-motion for the reasons set forth below.

SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

A. Background

On March 31, 2013, Plaintiff protectively applied for supplemental security income, alleging disability on the basis of diabetes, sleep apnea, and uterus cancer surgery beginning on January 1, 2012. The Social Security Administration (SSA) denied Plaintiff's claim initially and on reconsideration, finding that Plaintiff did not qualify for benefits. Administrative Law Judge (ALJ) Mary Parnow conducted a hearing on February 4, 2016, and a supplemental hearing on May 19, 2016. Plaintiff testified in person at both hearings and was represented by counsel, Ashlei Schulz. Vocational Expert (VE) Tracy Young testified at the February hearing; VE Thomas Linvill testified at the May hearing.

B. The ALJ's Findings

The regulations promulgated by the Commissioner of Social Security provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled.¹ 20 C.F.R. § 404.1520. The sequential inquiry is terminated when "a question is answered affirmatively or negatively in such a way that a decision can be made that a claimant is or is not disabled." Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner "to show that the claimant can do other kinds of work." Id. (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

The ALJ must first determine whether the claimant is performing "substantial gainful activity," which would mandate that the claimant be found not disabled regardless of medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ determined that Plaintiff had not performed substantial gainful activity since March 31, 2013. AR 22.

At step two, the ALJ must determine, based on medical findings, whether the claimant has a "severe" impairment or combination of impairments as defined by the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: diabetes mellitus, peripheral neuropathy, degenerative disc disease, and obesity. AR 22.

If the ALJ determines that the claimant has a severe impairment, the process proceeds to the third step, where the ALJ must determine whether the claimant has an impairment or combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the "Listing of Impairments"). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment either meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets the listings. AR 22-23.

Before proceeding to step four, the ALJ must determine the claimant's Residual Function Capacity (RFC). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work setting, despite mental or physical limitations caused by impairments or related symptoms. 20 C.F.R. § 404.1545(a)(1). In assessing an individual's RFC, the ALJ must consider all of the claimant's medically determinable impairments, including the medically determinable impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff has the RFC to perform sedentary work with a number exertional limitations. AR 24-28. The ALJ did not include in Plaintiff's RFC the need to take any breaks to administer insulin shots.

The fourth step of the evaluation process requires that the ALJ determine whether the claimant's RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f). Past relevant work is work performed within the past 15 years that was substantial gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the ALJ determined that Plaintiff could not perform past work as fast food worker, babysitter, and case aid. AR 28-29.

In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there are other jobs existing in significant numbers in the national economy which the claimant can perform consistent with the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony ofa vocational expert or by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on the testimony of the vocational expert, Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff could perform sedentary, unskilled work that existed in significant numbers in the national economy: document preparer, addresser, and cashier II. AR 29-30.

C. ALJ's Decision and Plaintiff's Appeal

On July 13, 2016, the ALJ issued an unfavorable decision finding that Plaintiff was not disabled. AR 20-30. This decision became final when the Appeals Council declined to review it on July 5, 2017. AR 1-3. Having exhausted all administrative remedies, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). On February 15, 2018, Plaintiff filed the present Motion for Summary Judgment. On March 15, 2018, Defendant filed a Cross-Motion for Summary Judgment. Plaintiff filed a Reply on March 29, 2018.

LEGAL STANDARD

This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g). The ALJ's decision must be affirmed if the findings are "supported by substantial evidence and if the [ALJ] applied the correct legal standards." Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). "Substantial evidence means more than a scintilla but less than a preponderance" of evidence that "a reasonable person might accept as adequate to support a conclusion." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The court must consider the administrative record as a whole, weighing the evidence that both supports and detracts from the ALJ's conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). However, "where the evidence is susceptible to more than one rational interpretation," the court must uphold the ALJ's decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Determinations of credibility, resolution of conflicts in medical testimony, and all other ambiguities are to be resolved by the ALJ. Id.

Additionally, the harmless error rule applies where substantial evidence otherwise supportsthe ALJ's decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not reverse an ALJ's decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)). "'[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.'" Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).

DISCUSSION

A. Severity of Mental Health Impairment

Plaintiff argues the ALJ erred in finding her depression was not a severe impairment at Step II of the sequential analysis. PMSJ at 8-10, 13-14. Specifically, Plaintiff argues the ALJ failed to give proper weight to the opinion of examining physician Dr. Katherine Wiebe; ignored the opinion of Plaintiff's treating physicians; and erred in concluded the condition was not severe because any limitations did not last 12 months.

1. Dr. Katherine Wiebe, Ph.D. (AR 1648-1663)

Plaintiff hired Dr. Wiebe to conduct a psychological evaluation in support of her application for Social Security benefits. Dr. Wiebe reviewed Plaintiff's records from Washington Hospital Healthcare System and Sutter VNA & Hospice.

Dr. Wiebe evaluated Plaintiff in person on October 26, 2015 to determine her current cognitive and emotional functioning. Dr. Wiebe provided a background of Plaintiff's family, social, academic, employment, legal, medical, and psychiatric history. She administered a number of exams. Based on a functional exam, Dr. Wiebe noted Plaintiff evidenced problems with depression, fatigue, and memory. Dr. Wiebe also observed that Plaintiff's mood was depressed, her affect restricted, and her thought content tended towards concerns about conflicted relations with family members. Plaintiff also reported passive suicidal ideation. She...