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Larson v. Colvin

United States District Court, D. Oregon

January 16, 2015

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


MICHAEL J. McSHANE, District Judge.

Plaintiff Jennifer Larson brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for supplemental security income payments (SSI) under Title XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issues before this Court are: (1) whether the Administrative Law Judge (ALJ) erred in evaluating the evidence submitted by plaintiff and examining psychologist, Dr. McKenna; (2) whether the ALJ erred in forming plaintiff's residual functional capacity (RFC); and (3) whether the ALJ erred in relying on the Medical-Vocational Guidelines ("the grids") at step five. Because the ALJ articulated sufficient reasons supported by substantial evidence in the record to reject plaintiff's testimony and Dr. McKenna's opinion, and because the ALJ's RFC and step five findings are supported by substantial evidence, the Commissioner's decision is AFFIRMED.


Plaintiff applied for SSI on March 15, 2010, alleging disability since July 28, 1994 (later amended to March 15, 2010). Tr. 24, 43, 135-141. This claim was denied initially and upon reconsideration. Tr. 24, 91-95, 99-101. Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ), and appeared before the Honorable Paul G. Robeck on April 3, 2012. Tr. 24, 36-62. ALJ Robeck denied plaintiff's claim by a written decision dated June 12, 2012. Tr. 24-31. Plaintiff sought review from the Appeals Council, which was subsequently denied, thus rendering the ALJ's decision final. Tr. 1-4. Plaintiff now seeks judicial review.

Plaintiff, born on August 29, 1967, tr. 30, 42, 135, obtained her GED with little preparation in 1992 or 1993, tr. 228, 499, and worked most recently as a switchboard operator at the Metropolitan Clinic between 1994 and 1995, tr. 43, 150, 228. Plaintiff was forty-two at the time of alleged disability onset, and forty-four at the time of her hearing. See tr. 30, 42, 135.[1] Plaintiff alleges disability due to: depression, anxiety, attention deficit disorder (ADD), narcolepsy/cataplexy, idiopathic hypersomnia, panic attacks, and fatigue. See tr. 26, 168; Pl.'s Br. 2, 6, 8-10, 12-13, ECF No. 18.


The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence on the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).


The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's RFC, age, education, and work experience. Id.

Plaintiff contends that the ALJ's disability decision is not supported by substantial evidence and is based on an application of incorrect legal standards. In particular, plaintiff argues that: (1) the ALJ erred at step two by failing to recognize plaintiff's alleged narcolepsy/cataplexy and idiopathic hypersomnia as severe impairments; (2) the ALJ erred in evaluating plaintiff's testimony; (3) the ALJ erred in evaluating Dr. McKenna's opinion; (4) the ALJ's erred in forming plaintiff's RFC; and (5) the ALJ erred at step five by relying on the grids.

I. Step Two

At step two, the Commissioner must determine the medical severity of a claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citations omitted); SSR 96-3P, 1996 WL 374181, at *1 (July 2, 1996). In other words, step two is a de minimis screening device used to dispose of groundless claims. Webb, 433 F.3d at 687 (citation omitted).

Plaintiff contends that the ALJ erred by finding that plaintiff's alleged narcolepsy/cataplexy syndrome[2] and idiopathic hypersomnia[3] were not severe impairments under step two. See Pl.'s Br. 9, ECF No. 18. In response, defendant argues that plaintiff did not demonstrate either medically determinable impairment, see Bowen v. Yuckert, 482 U.S. 137, 146 (1987), or, in the alternative, that any error committed was harmful. This Court looks to the record.

The ALJ, having reviewed the medical record, concluded that "there is no evidence that [plaintiff's] drowsiness affects her ability to function in a work setting." Tr. 26. Plaintiff does not contest this particular finding, but instead focuses on Dr. Ironside's "suspicio[n]" that she had "narcolepsy/cataplexy syndrome" in 2002, tr. 388, 390, 396, and her own reoccurring reports of fatigue, e.g., tr. 402, 428. However, a "suspicion" of narcolepsy is not a diagnosis of narcolepsy. To the extent that plaintiff reported fatigue on a reoccurring basis, that fatigue regularly improved with treatment, see infra § II, and was explicitly considered by the ALJ as a symptom of plaintiff's recognized depression, see tr. 28-30. Moreover, as discussed infra § II, the ALJ properly found plaintiff not credible.

Accordingly, even had this omission constituted a legal error, it could only have prejudiced plaintiff at step three or step five because the other steps, including this one, were resolved in her favor. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005).

II. Plaintiff's Credibility

Plaintiff contends that the ALJ improperly rejected her testimony. Pl.'s Br. 17-19, ECF No. 18. In response, defendant argues that the ALJ's findings are supported by substantial evidence. Def.'s Br. 7-9, ECF No. 19.

An ALJ must consider a claimant's symptom testimony, including statements regarding pain and workplace limitations. See 20 CFR §§ 404.1529, 416.929. "In deciding whether to accept [this testimony], an ALJ must perform two stages of analysis: the Cotton analysis and an analysis of the credibility of the claimant's testimony regarding the severity of her symptoms." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). If a claimant meets the Cotton analysis[4] and there is no evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Id. (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)). This Court "may not engage in second-guessing, " Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citations omitted), and "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation, " Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (citations omitted).

The ALJ found that plaintiff was "not a credible witness." Tr. 30. In making this determination, the ALJ relied on two bases, including: (1) inconsistency between plaintiff's testimony and the medical evidence; and (2) ...

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