Merriott v. Berryhill

          ORDER

          Honorable Lynette C. Kimmins United States Magistrate Judge

         Plaintiff Alicia Merriott filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). (Doc. 1.) Before the Court are Merriott's Opening Brief, Defendant's Responsive Brief, and Merriott's Reply. (Docs. 14, 15, 17.) The parties have consented to Magistrate Judge jurisdiction. (Doc. 21.) Based on the pleadings and the administrative record, the Court affirms the Commissioner's decision.

         PROCEDURAL HISTORY

         Merriott filed an application for Supplemental Security Income (SSI) on March 26, 2013. (Administrative Record (AR) 181.) She alleged disability from December 15, 2008. (Id.) Merriott's application was denied upon initial review (AR 95-106) and on reconsideration (AR 107-21). A hearing was held on October 26, 2015 (AR 59-93), after which an ALJ found that Merriott was not disabled because she could perform work available in the national economy (AR 22-33). The Appeals Council denied Merriott's request to review the ALJ's decision. (AR 1.)

         FACTUAL HISTORY

         Merriott was born on September 19, 1976, making her 36 years of age at the time her SSI application was submitted. (AR 181.) Merriott left school after eighth grade. (AR 202.) She has been employed twice, for a few months each time, in 2007 and 2008. (AR 203, 263.)

         The ALJ found Merriott had one severe impairment, affective disorder. The ALJ determined Merriott had the RFC to perform work at all exertional levels limited to occupations that do not require complex written or spoken communication; simple, routine, repetitive tasks that can be learned hands-on or by observation; and only occasional interaction with coworkers and the public. (AR 26.) Based on the testimony of a vocational expert, the ALJ concluded that Merriott could perform work that exists in significant numbers in the national economy. (AR 33.) In particular, she could work as a janitor/cleaner, assembler, and dishwasher/kitchen helper. (Id.)

         STANDARD OF REVIEW

         The Commissioner employs a five-step sequential process to evaluate SSI claims. 20 C.F.R. § 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. § 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. § 416.920(a)(4).

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The Court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).

         DISCUSSION

         Merriott argues the ALJ committed three errors: (1) she failed to consider an examining psychologist's opinion and test results; (2) she failed to consider whether Merriott met Listing 12.05C; and (3) she failed to develop the record regarding Merriott's cognitive abilities.

         Examining Psychologist

         Merriott argues that the ALJ failed to mention the opinion of psychologist Dee Winsky, Ph.D. Dr. Winsky examined Merriott on February 7, 2013, in conjunction with a CPS case. She found evidence of PTSD, anxiety, ADHD, and dementia with corresponding memory deficits. (AR 307.) She tested Merriott and concluded she fell in the intellectually deficient range, reading at a fifth grade level. (Id.) And, on the Basic Personality Inventory, Merriott scored high for a Thinking Disorder, indicating she was ...