United States District Court, D. Oregon
SARA L. GABIN, Lake Oswego, OR, Attorney for Plaintiff.
S. AMANDA MARSHALL, United States Attorney, District of Oregon, ADRIAN L. BROWN, RON SILVER, Assistant United States Attorneys, Portland, OR, NANCY A. MISHALANIE, Social Security Administration Office of the General Counsel, Seattle, WA, Attorneys for Defendant.
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Plaintiff Douglas Andrew Steen seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. § 1383(c) (3). For the reasons that follow, I affirm the final decision of the Commissioner.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed an application for SSI on April 27, 2009, alleging disability beginning April 27, 2009, due to memory problems, depression, anxiety, post-traumatic stress disorder, degenerative disc disease of the neck and back, hearing loss, numbness in both legs, and sleep apnea.
Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on April 19, 2012, at which plaintiff appeared with his attorney and testified. A vocational expert, Richard M. Hincks also appeared at the April 19, 2012 hearing and testified. On May 21, 2012, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.
Born in 1968, plaintiff was 44 years old on the date his application was filed. Plaintiff completed school through the eleventh grade, and has failed several attempts to earn a GED. Plaintiff was in special education classes in school, and does not read and write proficiently. After high school, plaintiff served eight months in the Army. Plaintiff has past relevant work as a satellite installer.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520; 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work. which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: personality disorder, antisocial; degenerative disc disease of the lumbar and cervical spine/scoliosis; obesity; substance abuse; and depression. At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform less than a full range of light work in that plaintiff can lift 20 pounds with his dominant arm and 10 pounds with his non-dominant arm; can sit, stand or walk six hours in an eight hour day; can occasionally rotate his neck; cannot crouch or crawl; cannot drive; cannot work around the public, but can have occasional contact with coworkers; and is limited to simple, repetitive tasks.
At step four, the ALJ found plaintiff is unable to perform any past relevant work. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, such as electronics worker, food assembler, and hand packer. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from April 27, 2009 through the date of the decision.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the ALJ committed the following errors: (1) failed to find the diagnoses of delusional disorder, paranoid disorder, and hearing loss severe at Step Two; (2) erroneously discounted plaintiff's testimony; (3) failed to give controlling weight to the opinions of Nurse Practitioners Valerie Cecil and Marguerite Gareau; (3) erroneously rejected the lay testimony of Dominique Eckhart and Robin Addington; and (4) the RFC fails to include all of plaintiff's limitations.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
I. Step Two
Plaintiff argues the ALJ erred by failing to include his paranoid disorder, delusional disorder, and hearing loss as severe impairments at Step Two. "At step two of the five-step sequential inquiry, the Commissioner determines whether the claimant has a medically severe impairment or combination of impairments." Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). An impairment is "severe" for Step Two purposes if it, in combination with other impairments, "significantly limits [the claimant's) physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520 (c). See also Smolen, 80 F.3d at 1290. A claimant can only establish a medically determinable impairment at Step Two "if the record includes signs - the results of medically acceptable clinical diagnostic techniques, ' such as tests as well as symptoms, i.e., [the claimant's) representations regarding his impairment." Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005).
Ultimately, however, Step Two "is a de minimis screening device to dispose of groundless claims, " and an impairment or combination of impairments will only be found "not severe" if "the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'" Smolen, 80 F.3d at 1290 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). An error in failing to list a condition at step two is harmless if the ALJ considers the limitations posed by the allegedly omitted condition in formulating the RFC. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
Here, the ALJ did not include the diagnoses of paranoid or delusional disorder as severe impairments at Step Two, but did include the diagnosis of antisocial personality disorder and the ALJ analyzed plaintiff's mental limitations extensively, as required, at Step Three, and again when formulating plaintiff's RFC.
To be sure, plaintiff does not now identify any specific functional limitations connected with his alleged paranoid and delusional disorders that the ALJ failed to consider when evaluating plaintiff's antisocial personality disorder and mental heal th limitations in the RFC. Instead, plaintiff primarily complai.ns that the ALJ erred by failing to specifically consider and discuss paranoid and delusional disorder diagnoses because they "show prima fascia (sic) disability" and were proffered by Ms. Gareau, a nurse practitioner. See Plaintiff's Reply (#20), p. 8. Plaintiff's arguments concerning Ms. Gareau's diagnoses are more properly directed at the ALJ's evaluation of her opinion in the RFC as9essment at Step Four, which. I address at length below. Thus, even assuming arguendo that the ALJ erred by failing to explicitly include plaintiff's paranoid and delusional disorders at Step Two, the error was harmless because Step Two was resolved in plaintiff's favor and the functional ...