United States District Court, D. Oregon
CARL H. RUTH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
Honorable Paul Papas, United States Magistrate Judge.
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.
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).
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.
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).
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).
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.
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.
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).
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
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)).
OF ADMINISTRATIVE RECORD
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,
Summary of The Medical Record
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. Tr. 426.
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.
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.
January 2007, on a check-box form, a medical provider
reported Ruth's thought contents and processes appeared
goal directed, circumstantial, and tangential. 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.
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.
April 2009, Ruth reported impulsivity, problems with anger,
and compulsive behavior. Tr. 1025, 1037.
January 2010, a medical provider reported Ruth's thought
contents and processes appeared appropriate and goal
directed. 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.
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
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
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
" 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.
September 2012, Dr, Shields conducted an additional psycho
diagnostic evaluation of Ruth. 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
[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