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Spain v. Colvin

United States District Court, D. Oregon

February 8, 2017

BETSI SPAIN, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.


          Stacie Beckerman United States Magistrate Judge.

         Betsi Spain (“Spain”) seeks judicial review of the final decision by the Social Security Commissioner (“Commissioner”) denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, the Court AFFIRMS the Commissioner's decision.


         Spain was born in May 1984, making her 23 years old on June 1, 2007, the alleged disability onset date. (Tr. 251.) Spain has a high school education, and has worked at fast food restaurants. (Tr. 83-84.) Spain alleges disability due to “low average IQ, ” post-traumatic stress disorder (“PTSD”), learning disorder, depression, anxiety, avoidant and dependent personality traits, problems with primary support group, and a low GAF score. (Tr. 230.)

         On September 10, 2007, psychologist Dr. Norvin Cooley evaluated Spain at the request of her criminal defense attorney. (Tr. 278-96.) He examined her criminal history in detail. Spain was charged with two counts of theft I, seven counts of negotiating a bad check, five counts of theft II, one count of theft of services, and one count of fraudulent use of a credit card on April 24, 2007; six counts of theft I on June 20, 2007; and burglary I, identity theft, forgery II, theft II, criminal possession of a forged instrument, and theft III on July 6, 2007. (Tr. 278-80.) Spain's mother died from a brain tumor when she was sixteen, and her mother's death still weighed on her at the time of the evaluation. (Tr. 281.) Her mother's illness was hard on Spain's family because, in addition to medical care, her mother's behavior became hypercritical in the twelve years she was affected by the tumor. (Tr. 282.) Spain lived in constant fear her mother would die at any moment, and her mother and father had marital difficulties. (Id.) Both of her parents abused alcohol and marijuana around her when she was young. (Id.) She was in special education classes because she had a reading problem, and her Corvallis School District Individualized Education Program stated that she needed special assistance with written language and speech and language. (Id.)

         In the evaluation, Dr. Cooley noted that Spain appeared to have low average intellectual abilities. (Tr. 285.) While she claimed problems with short-term and immediate memory, he noted that there were no indications of memory issues during the interview. (Id.) Dr. Cooley administered several objective tests and found that Spain had a low average IQ, low average verbal skills, a significantly impaired ability to think abstractly, better than average perceptual tracking, difficulties with activities that require sustained attention, and substantial academic deficits. (Tr. 285-87.) However, Dr. Cooley noted that Spain may not have participated in the tests in a “completely forthright manner, ” and “the nature of her responses might lead the evaluator to form a somewhat inaccurate impression of the client based upon [her] style of responding.” (Tr. 288.) Dr. Cooley concluded that Spain's responses indicated significant depression and were consistent with PTSD, dysthymia, learning disorder, and avoidant and dependent personality traits. (Tr. 293-94.)

         On July 2, 2012, nurse practitioner Deidre Greene noted that Spain's medications included Amitriptyline, melatonin, omeprazole, Zoloft, Implanon, and vitamin D3. (Tr. 456.)

         On August 14, 2013, licensed psychologist Dr. Scott Alvord evaluated Spain and found that she suffered from bipolar affective disorder type II, PTSD, and intellectual deficits. (Tr. 628.) He further found that her memory was worse than expected and could reflect a cognitive disorder. (Tr. 628.) He opined that Spain functioned in the high elementary school range academically, and likely would “struggle significantly with maintaining consistency in a job setting given severe anxiety as well as inconsistent mood functioning.” (Id.)

         On October 4, 2013, Dr. Alvord completed a mental residual functional capacity (“RFC”) assessment and concluded that Spain would be precluded from functioning independently, appropriately, and effectively for at least ten to fifteen percent of the workday in every category assessed, including understanding and memory, sustained concentration and persistence, social interaction, and adaptation. (Tr. 617-21.) Overall, Dr. Alvord concluded that Spain would be unable to perform independently, appropriately, and effectively for fifty percent of the workday. (Id.)

         Notes from group therapy sessions and private appointments from August 2013 to March 2014 detail Spain's struggles with her family, finding an apartment, and identifying coping strategies for anxiety and depression. (Tr. 650-79, 694-98.)

         On January 16, 2014, Spain reported to the Office of Vocational Rehabilitation Services that she wanted a job where she could “answer phones, greet people and maybe show people where things are.” (Tr. 264.) The rehabilitation counselor noted that Spain was “good with people.” (Tr. 269.)

         On January 29, 2014, social worker Jeremy Springer wrote a letter on behalf of Spain. (Tr. 690-91.) Springer and Spain met one to two times per month for over a year. (Id.) Springer opined that Spain was severely depressed and occasionally hypomanic, and exhibited symptoms of PTSD. (Id.) Springer concluded that Spain:

could not function consistently in a work setting which required consistent attendance at specified hours, ability to follow any but basic processes and directions, or prolonged/repetitive tasks, without extremely flexible expectations and accommodations. Additionally, I do not expect that she would respond well to criticism from supervisors and would likely come to avoid the work setting altogether, or be triggered into a depressive or hypomanic episode which would further negatively impact her work, as evidenced by past employment experiences.


         An administrative law judge (“ALJ”) convened a hearing on February 11, 2014, at which Spain testified about the limitations resulting from her impairments. (Tr. 57-94.) Spain testified that she last worked in 2007, and stopped because she went to jail. (Id.) When asked why she told Dr. Alvord that she had never worked anywhere longer than four months when she had actually worked for four years at Wendy's, she said “he never asked about Wendy's.” (Id.) She also stated that the managers at Wendy's were “covering for [her]” and her cash register often came up with an incorrect balance. (Id.) She alleged an overworked shoulder since she was sixteen years old for which she received cortisone injections. (Id.) She volunteered at the Habitat for Humanity ReStore and took a computer class, and used a CPAP machine that helped with her sleep apnea. (Id.) She assisted her father after his knee surgery and watched her sister's two children. (Id.) She alleged a need for a therapy companion cat while she works because it reduces her anxiety. (Id.) She alleged no problems with walking, sitting, bending over, crouching, and walking up stairs, but alleged some difficulty standing for long periods of time and raising her arms over her head. (Id.)

         The ALJ posed a series of questions to a vocational expert (“VE”), who also testified at Spain's hearing. The ALJ first asked the VE to assume that a hypothetical worker of Spain's age, education, and work experience was limited to lifting 20 pounds occasionally and 10 pounds frequently; can stand and/or walk eight hours and can sit for eight hours with normal breaks; should not reach overhead bilaterally; is limited to understanding, remembering, and carrying out simple instructions that could be learned in thirty days or less; and is limited to occasional public and coworker contact, no work directly with the public, and no group tasks with other employees. (Tr. 84.) The hypothetical worker was further limited by not working with money or performing record-keeping duties. (Id.) The VE testified that the hypothetical worker could not perform Spain's past work as a fast food worker. (Id.) However, the VE testified that other jobs existed in the national economy that the hypothetical worker could perform, such as office helper, security guard, meter reader, and escort vehicle driver. (Tr. 85.) The VE testified that if an employee was off task more than ten percent of the workday, that employee would likely not be able to sustain employment. (Tr. 86.)

         Spain's attorney questioned the VE and asked if an employee could sustain employment if her productivity was ten percent lower than her coworkers, to which the VE responded in the negative. (Tr. 88.) When asked if Spain could keep her therapy companion cat at these jobs, the VE responded that the security guard position would likely not allow the presence of her cat, but the office helper position might. (Tr. 92-93.)

         In a written decision issued on March 14, 2014, the ALJ applied the five-step sequential evaluation process set forth in 20 C.F.R. § 416.920(a)(4), and found that Spain was not disabled. The Social Security Administration Appeals Council denied Spain's petition for review, making the ALJ's decision the Commissioner's final decision. Spain timely appealed to federal court.



         A claimant is considered disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are as follows:

(1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal [one of the listed impairments]? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there ...

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