Debbie Ward v. Nancy Berryhill
711 F. App'x 822
| 9th Cir. | 2017Background
- Plaintiff Debbie Ward injured her back and applied for Social Security Disability Insurance; an ALJ denied benefits and the Appeals Council declined review.
- Ward sued under 42 U.S.C. § 405(g); the district court affirmed the ALJ, and Ward appealed to the Ninth Circuit.
- The ALJ applied the five-step disability evaluation, concluding Ward had no severe mental impairment and retained the residual functional capacity (RFC) to perform past work as a service representative and data entry clerk.
- Psychologist TesiEllen Athans diagnosed adjustment disorder with anxiety and completed a functional assessment noting mostly "unimpaired" or "mildly impaired" ratings but one "moderately impaired" rating for maintaining regular attendance/consistent work performance.
- The ALJ gave Athans’s report "great weight" and discussed it, but did not expressly quote the term "moderate" from the seventh observation; a vocational expert testified that someone unable to attend work regularly could not maintain full-time employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ failed to properly consider Dr. Athans’s report and thus erred in finding no severe mental impairment | Ward: ALJ overlooked Athans’s "moderate" limitation on attendance, which shows a severe impairment and precludes work | ALJ: Report was considered in full, given "great weight," and overall evidence shows capacity for full-time work | Court: No reversible error; ALJ considered report as whole and evidence supports non-severity finding |
| Whether hypotheticals posed to the vocational expert adequately synthesized the medical evidence | Ward: ALJ’s three hypotheticals amounted to proper syntheses showing inability to sustain work | ALJ: Hypotheticals were illustrative; testimony that irregular attendance precludes work does not prove Ward cannot work | Court: Hypotheticals were merely hypothetical; they did not establish Ward’s incapacity |
| Whether any possible error in not citing the word "moderate" was harmless | Ward: Omission of "moderate" was substantive and prejudicial | ALJ: Any failure to quote that word did not change outcome because report and other evidence support finding | Court: Any error was harmless under Molina; outcome unaffected |
Key Cases Cited
- Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (defines harmless error standard in Social Security review)
- Osenbrock v. Apfel, 240 F.3d 1157 (9th Cir. 2001) (discusses use and limits of vocational expert hypotheticals)