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Ruth v. Berryhill

United States District Court, D. Oregon

October 26, 2017

CARL H. RUTH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Honorable Paul Papas, United States Magistrate Judge.

         Plaintiff Carl H. Ruth filed this action on May 19, 2016, seeking judicial review of the Commissioner of Social Security's final decision denying his application for disability insurance benefits ("DIB") under Title II and supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). This court has jurisdiction over plaintiffs action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). All parties have consented to a Magistrate Judge in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). See ECF No. 9. I have considered all of the parties' briefing and the relevant evidence in the administrative record. For the reasons set forth below, the Commissioner's final decision is AFFIRMED and this case is DISMISSED.

         DISABILITY ANALYSIS FRAMEWORK

         To establish disability within the meaning of the Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five-step sequential process for determining whether a claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

         At the first step, an ALJ considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation proceeds to the second step.

         At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-41; see also 20 C.F.R. §§ 404.1520(a)(4)(H), 416.920(a)(4)(h). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1522(b), 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled, See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(h), 404.1520(c), 416.920(a)(4)(h), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 153-54). "An impairment or combination of impairments can 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.'" Id. (quoting SSR 85- 28, 1985 WL 56856).

         If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, Subpt. P, App. 1, the claimant will conclusively be found disabled, See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).

         If the claimant's impairments are not equivalent to one of the enumerated impairments, the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related, physical and mental activities on a regular and continuing basis, despite the limitations imposed by the claimant's impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a). "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p 1996 WL 374184.

         At the fourth step, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520 (a) (4) (iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof is, for the first time, on the Commissioner.

         At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether the claimant can perform any jobs that exist in significant numbers in the national economy, See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v)} 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner meets her burden to demonstrate that the claimant is capable of performing jobs existing in significant numbers in the national economy, the claimant is conclusively found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R, §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits if the Commissioner fails to meet his burden at the fifth step. See id.; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

         LEGAL STANDARD

         A reviewing court must affirm an ALJ's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); see also Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). '"Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

         The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. (citing Reddick v. Chafer, 157 F.3d 715, 720 (9th Cir. 1998)). The court may not substitute its judgment for that of the Commissioner. See Id. (citing Robbins, 466 F.3d at 882); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent findings of fact in determining whether the ALJ's findings are supported by substantial evidence of record. See Connett v. Bamhart, 340 F.3d 871, 874 (9th Cir. 1989) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)).

         SUMMARY OF ADMINISTRATIVE RECORD[1]

         Born in January 1988 in Eureka, California, Ruth was 22 years old on the alleged onset date of February 28, 2010, and 26 years old at the time of the hearing. Tr. 104-05, 107, 121, 1077. Ruth is a high school graduate and worked part-time at a McDonald's and at a floral farm, On June 5, 2012, Ruth filed Title II and Title XVI applications for disability. Tr. 105-06. He alleged disability due to: attention deficit hyperactivity disorder, anger management, depression, comprehension issues, migraines/blackouts, chemical imbalance, hypoglycemia, and injury to both shoulders. Tr. 107, 121. After his applications were denied initially and upon reconsideration, Ruth requested a hearing before an administrative law judge ("ALJ"). Tr. 14, 107-20, 121-34.

         I. Summary of The Medical Record

         The earliest medical evidence in the administrative record cited by Ruth transpired nine years prior to the alleged onset date and consists of a psychological evaluation administered by school psychologist Jim Bierman, Ph.D., in January 2001. Tr. 420-26 In the Summary and Recommendations section of the evaluation, Dr. Bierman noted Ruth's "cognitive functioning [was] in the Borderline range" and that he had "marked difficulty with perceptual organization." Tr. 425. In regard to his emotional and personality development, Dr, Bierman noted that Ruth presented as "an oppositional-defiant adolescent, " and he "had recently experienced multiple changes in residence and one brief hospitalization for danger to himself." Tr. 425. Dr. Bierman recommended "individual psychotherapy using behavioral modification geared towards increasing restraint and self-control ., . ." Tr. 425. Additionally, Dr. Bierman observed Ruth presented a "low risk" of danger to himself and others, Tr. 425. Dr. Bierman diagnosed Ruth with oppositional defiant disorder, posttraumatic stress disorder, physical abuse of a child, borderline intellectual functioning, aggressive/sadistic and antisocial personality traits with negativistic features, and current global assessment ("GAF") score of 36, with a high of 50 in the past year.[2] Tr. 426.

         In May 2004, Michael Ramirez Psy.D., administered a psychological evaluation of Ruth. Tr. 696-704. In the Summary and Recommendations section of the evaluation, Dr. Ramirez noted Ruth "endorsed high levels of depressive and anxious cognitions as well as antisocial behavior." Tr. 702. Regarding Ruth's mental status, Dr. Ramirez noted his memory "both immediate and remote, was intact, " his "general fund knowledge seemed appropriate for his educational background, " his "intellect appeared to be average, " his "insight and judgement appeared competent, " and his "concentration was within normal limits." Tr. 699. Dr. Ramirez noted that Ruth "admit[ted] displaying inappropriate social behavior" and "report[ed a] willingness to participate in treatment." Tr. 703. Dr. Ramirez diagnosed Ruth with conduct disorder, cannabis abuse, and mood disorder, and a current GAF score of 50, with a high of 60 in the past year.

         In November 2006, Ruth reported "mental distress" to registered nurse ("RN") J. Spini, and reported continued difficulty "with interpersonal relationships, irritability/anger, impulse control, insomnia, concentration/memory, mania, mood [liability], energy level, depression, and anxiety/fear/panic." Tr, 883. Ruth's Abilify prescription was continued and he was instructed to follow up in six weeks. Tr. 883.

         In January 2007, on a check-box form, a medical provider reported Ruth's thought contents and processes appeared goal directed, circumstantial, and tangential.[3] Tr. 879. His insight and judgment were assessed as poor. Id. Ruth's cognition was assessed as concrete and his memory appeared grossly intact. He was diagnosed with GAF score of 46, with a high of 50 in the last year.

         In March 2009, P. Anderson administered an assessment of Ruth based on self-reports. Tr. 1042-47. His mental status revealed he was oriented, his rapport was appropriate, his mood was irritable, his affect was expansive, and his speech was coherent as well as tangential. Tr, 1044. His thought content and processes were appropriate; his insight was assessed as poor and his judgment as fair. As to Ruth's cognitive functioning, he was easily distracted and suffered from a concentration problem. Tr. 1045. He was assessed as not posing a risk of harm to himself or others. Id. Ruth presented "as being guarded concerning personal information, yet amenable during the interview once he began talking about his interests." Tr. 1046. Anderson observed that Ruth's "most evident barrier to a functional life is his impulsive anger and rage." Id. Anderson diagnosed depressive disorder, attention deficit hyperactivity disorder, anxiety disorder due to a substance, and a GAF score of 41, with a high of 43 in the last year. Tr. 1046.

         In April 2009, Ruth reported impulsivity, problems with anger, and compulsive behavior. Tr. 1025, 1037.

         In January 2010, a medical provider reported Ruth's thought contents and processes appeared appropriate and goal directed.[4] Tr. 976. His insight and judgment were assessed as fair. Id. He was assessed as having no gross cognitive deficits and his memory appeared grossly intact. Id. He was diagnosed with GAF score of 50, with a high of 55 in the last year. Tr. 977.

         In May 2011, Ruth was referred to Thomas Shields, Ph.D., for a psycho diagnostic evaluation, Tr. 1082-87. Dr. Shields noted Ruth was "fairly guarded and [had] a negative attitude during the evaluation." Tr. 1085. Dr. Shields noted an "increase in fidgetiness and distractibility whenever [he and Ruth] talk[ed] about those topics." Tr. 1085, 1087. Dr. Shields noted Ruth was "alert but distracted." Tr. 1086. Dr. Shields wrote in his comment section:

It's unclear how severe his attention problem is, however, due to the impression management observed during this evaluation and possible sub optimal effort on the digit span task. I did observe a mildly slowed rate of speech and mildly slowed thought processing in casual interaction, suggesting an impairment in processing speed, For this reason, he may very well exhibit mild impairment in keeping a normal pace at the work place. He was capable of understanding, remembering, and carrying out simple instructions.
His social functioning is likely moderately impaired. He was able to hold a job for three years but lost the job when he hit his boss with a door. He is fairly arrogant and self-absorbed, claims to enjoy when others are in pain, and imagines himself to be a superior street fighter. He is disinterested in formal martial arts because there are "rules[.]
" His persistence was mildly impaired during this evaluation predominantly because of motivational factors, Finally, there is some suspicion that he may not be entirely forthcoming about his cannabis use history.

Tr. 1087. Dr. Shields diagnosed Ruth with attention deficit hyperactivity disorder, mood disorder, cannabis abuse, and personality disorder, Id.

         In September 2012, Dr, Shields conducted an additional psycho diagnostic evaluation of Ruth.[5] Dr. Shields observed that Ruth appeared "mildly dysphoric"; however, he presented with an appropriate affect and was fully oriented. Tr. 1078. Ruth's presentation was "consistent with that of an individual with [attention deficit hyperactivity disorder]." Tr. 1080. Dr. Shields found it "difficult to discern the nature of [Ruth's] attentional difficulties [due to] his suboptimal effort during the mental status examination and his chronic use of cannabis." Id. Dr. Shields wrote in his comment section:

[Ruth was] capable of understanding, remembering, and carrying out short and simple instructions. His ability to sustain concentration on tasks over extended periods of time is expected to be moderately impaired secondary to the combined impact of his [attention deficit hyperactivity disorder] and his typical state of cannabis intoxication.
His social functioning appears mild-to-moderately impaired based on his negative attitude, unsophisticated manner of impression management, probable proclivity toward being manipulative, and other anti-social traits. Persistence and pace are expected to be moderate-to-severely impaired secondary to maladaptive personality features, cannabis dependence, ...

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