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Munn v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Eugene Division

August 25, 2014

GREGORY D. MUNN, Plaintiff,


JANICE M. STEWART, Magistrate Judge.


Plaintiff, Gregory D. Munn ("Munn"), seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 USC §§ 401-433, and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 USC §§ 1381-1383f This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC § 405(g) and § 1383(c)(3). For the reasons set forth below, that decision should be affirmed.


Munn protectively filed for DIB and SSI in May 2010, alleging a disability onset date of October 1, 1999. Tr. 179-79.[1] His applications were denied initially and on reconsideration. Tr. 60-129. On April 25, 2012, a hearing was held before Administrative Law Judge Richard A. Say ("ALJ") at which Munn, Sandra Bolton ("Bolton"), and a Vocational Expert ("VE") testified. Tr. 36-59. The ALJ issued a decision on May 25, 2012, finding Munn not disabled. Tr. 23-31. The Appeals Council denied a request for review on April 10, 2013. Tr. 1-6. Therefore, the ALJ's decision is the Commissioner's final decision subject to review by this court. 20 CFR §§ 404.981, 416.1481, 422.210.


Born in October 28, 1964, Munn was 47 years old at the time of the hearing. Tr. 39. He has a GED, some college education, and past relevant work experience as a carpet cleaner. Tr. 29, 39, 229-35. Munn alleges that he is disabled based on anxiety, agoraphobia, attention deficit hyperactivity disorder ("ADHD"), and depression, and is unable to work longer than one month in temporary jobs because of increased anxiety in social settings. Tr. 41, 199.


Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 CFR §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir 1999).

At step one, the ALJ determines if the claimant is performing substantial gainful activity. If so, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i) & (b), 416.920(a)(4)(i) & (b).

At step two, the ALJ determines if the claimant has "a severe medically determinable physical or mental impairment" that meets the 12-month durational requirement. 20 CFR §§ 404.1520(a)(4)(ii) & (c), 416.909, 416.920(a)(4)(ii) & (c). Absent a severe impairment, the claimant is not disabled. Id.

At step three, the ALJ determines whether the severe impairment meets or equals an impairment "listed" in the regulations. 20 CFR §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d); 20 CFR Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If the impairment is determined to meet or equal a listed impairment, then the claimant is disabled.

If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The claimant's RFC is an assessment of work-related activities the claimant may still perform on a regular and continuing basis, despite the limitations imposed by his or her impairments. 20 CFR §§ 404.1520(e), 416.920(e); Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 (July 2, 1996).

At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant work. 20 CFR § § 404.1520(a)(4)(iv) & (e), 416.920(a)(4)(iv) & (e). If the claimant cannot perform past relevant work, then at step five, the ALJ must determine if the claimant can perform other work in the national economy. Bowen v. Yuckert, 482 U.S. 137, 142 (1987); Tackett, 180 F.3d at 1099; 20 CFR §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g).

The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at 1098. If the process reaches step five, the burden shifts to the Commissioner to show that jobs exist in the national economy within the claimant's RFC. Id. If the Commissioner meets this burden, then the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g), 416.960(c).


At step one, the ALJ concluded that Munn has not engaged in substantial gainful activity since October 1, 1999, the alleged onset date. Tr. 25. At step two, the ALJ determined that Munn has the severe impairments of organic mental disorder, alcohol abuse, substance addiction disorder, attention deficit hyperactivity disorder, and generalized anxiety disorder. Id. He found Munn's depression not to be a severe impairment because it was under good control with medication. Id. At step three, the ALJ concluded that Munn does not have an impairment or combination of impairments that meets or equals any of the listed impairments. Tr. 25-26. The ALJ found that Munn has the RFC to perform a full range of work at all exertional levels but mental limitations that limit him to "unskilled work with routine tasks requiring only superficial interaction with the public and co-workers." Tr. 26-27.

Based upon the testimony of the VE, the ALJ determined at step four that Munn's RFC precluded him from returning to his past job as a carpet cleaner, because it was skilled work. Tr. 29. However, at step five, the ALJ found that Munn was not disabled because he could perform unskilled work as a warehouse worker, janitor, and a hand packer. Tr. 30.


The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 USC § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir 2007), citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir 1998). The reviewing court may not substitute its judgment for that of the Commissioner. Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1205 (9th Cir 2008), citing Parra v. Astrue, 481 F.3d 742, 746 (9th Cir 2007). Where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "supported by inferences reasonably drawn from the record.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir 2008), quoting Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir 2004).


Munn established care with Jeff Black, M.D., at the Salem Clinic on January 19, 2000, to discuss his depression and anxiety. Tr. 326-27. One week earlier, he had visited the emergency room ("ER") for "feelings of significant anxiety and slight panic." Tr. 368-71. These feelings had since decreased, but Munn suffered from similar symptoms "on and off since puberty'" and had been diagnosed with depression in 1996. Tr. 327. Earlier he had been diagnosed with ADHD for which he briefly had taken Ritalin. Tr. 327, 368. At the time of Dr. Black's examination, Munn was smoking two packs of cigarettes and drinking six or more beers a day. Tr. 327. He had recently reduced his caffeine intake by reducing his coffee consumption from one pot to one cup a day. Id. Dr. Black assessed Munn as suffering from depression with associated anxiety and a recent, mild panic attack, and observed that he overused alcohol. Tr. 326. He started Munn on Wellbutrin and Xanax and instructed him to reduce his drinking to two beers per day. Id.

Two weeks later on January 31, 2000, Munn saw Dr. Black after another panic attack sent him to the ER two days earlier. Tr. 326, 367 (ER report). Munn appeared "overtly anxious" and reported feeling "anxious all of the time." Id. His drinking had increased to 12 beers per day. Tr. 326. The ER doctor administered Lorazepam which Munn preferred to Xanax. Id. Dr. Black continued the Lorazepam, started Paxil, discontinued Wellbutrin and Xanax, and told Munn to stop drinking. Id.

At a follow-up appointment on February 2, 2000, Munn reported that he had been "eaten up with anxiety, " had taken 16 Lorazepam pills, and was planning to seek an evaluation for alcohol rehabilitation the next day. Tr. 325. Dr. Black continued Paxil and Lorazepam. Id.

On February 21, 2000, Munn reported that Paxil decreased his anxiety symptoms, and he had not experienced a panic attack recently. Tr. 324. After visiting the alcohol rehabilitation center, he had started an outpatient program and was on a "weaning program." Id. Dr. Black prescribed Trazadone for sleep and increased the Paxil dosage. Id.

On March 31, 2000, Munn was "tolerating the Paxil very well... and [was] no longer having any of the anxiety like he had been, and no longer needing the Xanax type medicines." Tr. 323. But after "falling off the wagon" since the last appointment, Munn felt "shamed by his current alcohol abuse" and wished to try an inpatient program. Id.

After four days in an alcohol rehabilitation center, Munn saw Dr. Black on April 25, 2000. Tr. 330. He had been attending Alcoholics Anonymous since leaving the facility and had an outpatient appointment the next day. Id. Paxil was still effectively reducing his anxiety. Id.

Two years later on March 21, 2002, [2] Munn called the Marion County Health Clinic requesting anxiety medication. Tr. 287-96. He said that he was having suicidal thoughts, was drinking to relieve his tremors, and had been to rehab four times. Tr. 288. A nurse prescribed Prozac and Vistaril. Tr. 298.

On September 11, 2003, Munn saw Timothy Zuk, M.D. at the Salem Clinic. Tr. 331, 321. Munn reported that he had quit alcohol for the past 48 hours after his consumption had increased to a case of beer a day. Tr. 331. He had stopped taking Prozac several weeks before because of sexual dysfunction which caused him to start drinking again. Tr. 321. Dr. Zuk assessed Munn as still withdrawing from alcohol and discussed other options for anxiety medication. Id.

On January 8, 2004, Munn resumed treatment at the Salem Clinic with Dr. Zuk. Tr. 332. He was still depressed despite taking Prozac and reported becoming irritated and angry easily. Id. He was anxious at times and had trouble sleeping. Id. Munn had quit consuming alcohol in September 2003 after his last exam, was still abstinent, and was working at a temp agency. Tr. 320. Dr. Zuk discontinued Prozac and prescribed Lexapro for his depression and anxiety. Id.

On January 21, 2004, Munn reported that Lexapro had improved his depression, but he slept only five hours at night. Tr. 320. Dr. Zuk continued Lexapro and prescribed Desyrel to help Munn sleep. Tr. 333.

At a follow-up appointment on February 4, 2004, Munn reported that he was sleeping "well" because of the Desyrel, his mood "ha[d] been excellent, a 9-10 out of 10, " and he was still sober. Tr. 319. Munn was employed and "being paid well." Id.

However, on September 14, 2004, Munn went to the ER for tremors. Tr. 350. At the time, he was homeless and drinking alcohol. Id.

Munn sought treatment again from Dr. Zuk on November 17, 2004. Tr. 334. He reported that the Lexapro had helped "some, " but he "had incomplete control of his symptoms." Id. He was sleeping "fairly well" and was in an alcohol withdrawal program. Id. Dr. Zuk increased the Lexapro dosage. Id.

On January 12, 2005, Dr. Zuk assessed Munn with continuing post-alcohol withdrawal symptoms, as well as some anxiety and chronic insomnia. Tr. 318. Munn reported that he had been sober for 90 days and felt "anxious, some jitteriness, and some clumsiness." Id. Dr. Zuk resumed Desyrel and continued Lexapro. Id.

Four months later on May 19, 2005, Munn reported no anxiety and an "overall mood [of] 8-9/10." Tr. 317. He was attending community college and had been abstinent from alcohol for eight months. Id. However, his sleeping schedule was irregular. Dr. Zuk advised Munn to start an aerobic exercise program and ordered comprehensive tests to rule out a metabolic origin of his fatigue. Id.

On June 29, 2005, Munn reported his mood had been "fair." Tr. 336. He had been sober for nine months. Id. He was sleeping five hours at night and, as a result, "[wa]s very tired and lethargic throughout the entire day." Id. Dr. Zuk discontinued Desyrel because it made Munn feel sick and prescribed Amitriptyline for insomnia. Tr. 336. Munn had not begun exercising as prescribed. Id. The metabolic studies were normal. Id.

Dr. Zuk examined Munn again on October 20, 2005, regarding his insomnia and depression. Tr. 316. In general, Munn was "doing quite well, " had "been off alcohol now for a year, " was taking "visual communication" classes at a community college, and reported that "his mood [was] a five on a scale of one to ten." Id. Munn still suffered from insomnia but had not begun taking Amitriptyline. Id.

In February 2006, after one year of sobriety, Munn's alcohol use relapsed. Tr. 315. After completing detoxification in an inpatient facility on February 25, 2006, he entered a clean and sober residence. Id. On March 20, 2006, Dr. Zak assessed Munn's alcohol abuse as in remission. Id. Munn had started the Amitriptyline as prescribed, had continued taking his medications through the relapse, and reported good control of his mood. Id. On April 18, 2006, Dr. Zak noted that Munn's mood was under "good control" with Lexapro and that he was sleeping well with Amitriptyline. Id.

On June 26, 2006, Munn sought treatment for his insomnia. Tr. 314. Amitriptyline caused him increasing daytime anxiety and restless legs at night. Id. He was still living in the rehabilitation facility and drinking a half pot of coffee a day before noon. Id. Dr. Zuk observed that Munn did not appear to be "clinically depressed." Id. He continued Lexapro, started Trazodone for insomnia, and instructed Munn to increase Trazodone "by 50 mg every couple of nights until he is sleeping." Id.

On September 18, 2006, Munn told Dr. Zuk that "his mood is already improving on Lexapro 20 mg a day" and that "he was having a full night's rest with the titration of [T]razodone to 200 mg at night." Tr. 313.

Three months later, on December 8, 2006, Munn reported sleeping "fairly well" when using 200-400 mg of Trazodone, and believed the Lexapro continued to work well because his anxiety was 3-4 on a scale of 1-10. Tr. 311.

On February 2, 2007, Munn sought treatment regarding his nicotine dependence and depression. Tr. 310. He had been abstinent from alcohol for one year, reported his mood had been "excellent" on Lexapro, and was sleeping well on 50 mg of Trazodone. Id. Dr. Zuk prescribed Nicoderm and noted that Munn's anxiety symptoms were under "good control." Id. On March 28, 2007, Munn reported that he had increased the Trazodone to ...

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