United States District Court, D. Oregon
Katherine L. Eitenmiller, Brent Wells Harder, Wells, Baron
& Manning, P.C. Attorneys for Plaintiff.
E. Herbert Assistant United States Attorney
L. Martin Social Security Administration Office of the
General Counsel Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Micah Lansing brings this action for judicial review of the
Commissioner's final decision denying his application for
Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act and for Disability Insurance
Benefits (“DIB”) under Title II of the Social
Security Act. This Court has jurisdiction under 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)).
The Commissioner's decision is affirmed.
applied for DIB on March 27, 2014, and SSI on February 9,
2015, alleging disability as of October 2, 2006. Tr. 90,
His applications were denied initially and on
reconsideration. Tr. 140-44, 148-50. On June 11, 2016,
Plaintiff appeared, without counsel, for a hearing before an
Administrative Law Judge (ALJ). Tr. 35. On March 8, 2016, the
ALJ found Plaintiff not disabled. Tr. 26. The Appeals Council
denied review. Tr. 1.
alleges disability based on major depression, intervertebral
disc syndrome, synovitis, hypertensive vascular disease,
tinnitus, limited extension of the knees, hiatal hernia, flat
foot condition, and migraines. Tr. 285. He was 41 at the time
of the administrative hearing. Tr. 40. Plaintiff has a high
school education and past relevant work experience as a field
artillery crewmember. Tr. 286, 24.
claimant is disabled if 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). Disability claims are evaluated according to a
five-step procedure. See, e.g., Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The
claimant bears the ultimate burden of proving disability.
first step, the Commissioner determines whether a claimant is
engaged in “substantial gainful activity.” If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a “medically severe impairment or
combination of impairments.” Yuckert, 482 U.S.
137 at 140-41; 20 C.F.R. §§ 404.1520(c),
416.920(c). If not, the claimant is not disabled.
three, the Commissioner determines whether the impairment
meets or equals “one of a number of listed impairments
that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.”
Yuckert, 482 U.S. at 141; 20 C.F.R. §§
404.1520(d), 416.920(d). If so, the claimant is conclusively
presumed disabled; if not, the Commissioner proceeds to step
four. Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the
Commissioner. In step five, the Commissioner must establish
that the claimant can perform other work. Yuckert,
482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) &
(f), 416.920(e) & (f). If the Commissioner meets his
burden and proves that the claimant is able to perform other
work which exists in the national economy, the claimant is
not disabled. 20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity after his alleged onset date of
October 2, 2006. Tr. 18. Next, at steps two and three, the
ALJ determined that Plaintiff has the following severe
impairments: “depression; post-traumatic stress
disorder (PTSD)/anxiety; obesity; degenerative disc disease
and a history of various sprains and strains.”
Id. However, the ALJ determined that Plaintiff's
impairments did not meet or medically equal the severity of a
listed impairment. Tr. 19. At step four, the ALJ concluded
that Plaintiff has the residual functional capacity to
perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b) with the following limitations:
[Plaintiff] is further limited to no more than occasional
stooping, kneeling, crouching, and crawling. He must avoid
climbing ropes, ladders, or scaffolds. He can occasionally
reach, handle, grasp, or finger with the right upper
extremity. He must avoid concentrated exposure to extreme
temperatures, as well as exposure to unprotected heights,
moving machinery, or similar workplace hazards. He is limited
to no more than simple, repetitive, routine tasks requiring
no more than occasional brief superficial interaction with
the general public.
Because of these limitations the ALJ concluded that Plaintiff
could not perform his past relevant work as a field artillery
crewmember. Tr. 24. But at step five the ALJ found that there
are jobs that exist in significant numbers in the national
economy that Plaintiff can perform, such as “bakery
conveyor line worker, ” “dealer, account clerk,
” and “laminating-machine off-bearer.” Tr.
25. Thus, the ALJ concluded that Plaintiff is not disabled.
reviewing 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); Batson v. Comm'r of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a
mere scintilla, but less than preponderance.” Bray
v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222
(9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)). It is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
court must weigh the evidence that supports and detracts from
the ALJ's conclusion. Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The
reviewing court may not substitute its judgment for that of
the Commissioner. Id. (citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading. Id.; see also Batson, 359
F.3d at 1193. However, the court cannot not rely upon
reasoning the ALJ did not assert in affirming the ALJ's
findings. Bray, 554 F.3d at 1225-26 (citing SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947)).
contends that the ALJ erred by (1) failing to account for all
of Plaintiff's social limitations in the ALJ's RFC
determination and his hypothetical to the Vocational Expert
(VE); (2) proceeding with the hearing without obtaining a
voluntary waiver of representation from Plaintiff; (3)
failing to meet his heightened duty to probe into the record
and explore all relevant facts at the hearing; (4) failing to
consider the medical source opinions of Mary Jenkins Gunn,
MSW, LCSW, Charles Sprague, MD, and Victor Richenstein, MD;
(5) failing to provide sufficient reasons for assigning less
weight to the VA disability decision; and (6) failing to
provide clear and convincing reasons for discounting
Plaintiff's symptom testimony. Pl.'s Opening Br. 5,
ECF 15. Plaintiff's arguments are unavailing and, thus,
the Court affirms the ALJ's decision.
Assessment & VE Hypothetical
first alleges that the ALJ erred at step five because his RFC
and hypothetical to the VE failed to take into account all of
Plaintiff's social limitations proposed by a state agency
psychological consultant. The RFC is the most a person can
do, despite his physical or mental limitations. 20 C.F.R.
§§ 404.1545, 416.945. In formulating an RFC, the
ALJ must consider all medically determinable impairments,
including those that are not “severe, ” and
evaluate “all of the relevant medical and other
evidence, including the claimant's testimony.”
Id.; SSR 96-8p. An ALJ may rely on the testimony of
a VE to determine whether a claimant retains the ability to
perform past relevant work or other work in the national or
regional economy at step five. See Osenbrock v.
Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The ALJ is
required to include only those limitations which are
supported by substantial evidence in the RFC and
hypotheticals posed to a VE. See Id. at 1163-65.
“Conversely, an ALJ is not free to disregard properly
supported limitations, ” including improperly
discredited symptom testimony provided by the claimant or lay
witness. Robbins, 466 F.3d at 886. If the
assumptions presented in the hypothetical are not supported
by substantial evidence in the record, “the vocational
expert's opinion has no evidentiary value.”
Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001).
gave full weight to the January 2015 assessment of state
agency psychological consultant Megan Nicoloff, Psy.D. Tr.
23. Dr. Nicoloff found that “the claimant's
depression and anxiety would reasonably restrict him to
‘simple routine tasks' that avoided extensive
interaction with the general public.” Tr. 23, 109, 134.
The RFC and the hypothetical posed to the VE both accounted
for “no more than occasional brief superficial
interaction with the general public.” Tr. 21, 59.
argues the ALJ failed to include limitations on supervisor
and coworker interaction proposed by Dr. Nicoloff in his RFC
and hypothetical. Pl. Opening Br. 6. The Commissioner
responds, and this Court agrees, that such limitations were
not present in Dr. Nicoloff's opinion. Def. Resp. Br. 4.
In her assessment, Dr. Nicoloff indicated that he was
“not significantly limited” in his ability to
interact with supervisors or coworkers. Tr. 109, 134. Rather,
she found that Plaintiff is “limited to
interactions with coworkers and supervisors and should not be
required to interact extensively with the general
public.” Id. (emphasis added). The ALJ took
these limitations into account by limiting Plaintiff's
interactions with the general public. Tr. 21. Moreover, even
if Plaintiff's interpretation was a reasonable one, this
Court will not substitute its own judgment for that of the
ALJ when his interpretation is supported by a rational
reading of the record. See Batson, 359 F.3d at 1193.
Accordingly, the ALJ has not erred in formulating the RFC or
hypothetical posed to the VE.