United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
Honorable Paul Papak United States Magistrate Judge
Michael Shaw ("Shaw") filed this action on November
18, 2016, seeking judicial review of the Commissioner of
Social Security's final decision denying his application
for disability insurance benefits ("DIB") under
Title II 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). The Court
has considered all of the parties' briefs and all of the
evidence in the administrative record. For the reasons set
forth below, the Commissioner's final decision should be
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). 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 Administrative Law Judge ("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). 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). Otherwise, the evaluation proceeds to the second
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)(ii). 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). 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); 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
durational 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)(ii),
404.1520(c). Nevertheless, it is well established that
"the step-two inquiry is a deminimis 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, at *3).
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. §§
404.152O(a)(4)(iii), 404.1520(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.
§§ 404.152O(a)(4)(iii), 404.1520(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). 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). "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 *1.
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). 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). 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. 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. A claimant will be found
entitled to benefits if the Commissioner fails to meet her
burden at the fifth step. See id.; see also 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).
reviewing court must affirm an ALJ's decision if the ALJ
applied the proper legal standards and his findings are
supported by substantial evidence in the record. See
42 U.S.C. § 405(g); see also 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 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)).
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 Edlundv.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 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.
born January 9, 1985, was 28 years old on the original
alleged disability onset date, and 31 years old at the time
of the hearing. Tr. 250. He obtained a GED and completed two
years of college, Tr. 237, 432. Prior to his amended alleged
disability onset date of February 1, 2014, Shaw had past
relevant work experience as a soldier in the Army National
Guard, ski-lift operator, and bartender. Tr. 84-86, 274.
August 2012, Shaw underwent a post-deployment health
reassessment at the Veterans Affairs ("VA")
hospital in Roseburg, Oregon. Tr. 648. He reported
experiencing intermittent and unpredictable pain in his left
ankle since spraining it while deployed to Iraq in 2011.
Id. He also endorsed difficulty concentrating at his
bartending job, trouble sleeping with occasional nightmares,
becoming easily agitated, hyper vigilance, and a heightened
startle reaction. Tr. 649. He denied feeling sad or
depressed, or having any suicidal or homicidal ideation.
Id. Dr. Norbert Gerondale assessed intermittent left
ankle pain and adjustment disorder versus mild post-traumatic
stress disorder ("PTSD"), Tr. 652. He prescribed
bupropion and referred Shaw to mental health services.
following month, Shaw saw Dr. Robert Higginbotham, a VA
psychiatrist, for mental health treatment. Tr. 712-14. Dr.
Higginbotham noted that Shaw was alert, oriented, and
cooperative, with coherent speech, intact judgment, reality
based thought processes, mild restlessness, and a subdued
mood. Tr. 713. He assessed moderate dysthymia. Id.
Based on Shaw's report that bupropion made him more
irritable, the doctor prescribed daily use of venlafaxine for
mood and lorazepam as needed for sleep. Id.
January 2013, Shaw returned to Dr. Gerondale and reported
experiencing episodes of increased heart palpitations of a
few minutes duration, occurring one to two times per week.
Tr. 552. He first noticed his heart pounding while
exercising, but stated it recently began occurring even
during periods of rest. Id. Shaw reiterated his
issues with anxiety at work, difficulty sleeping,
hypervigilance, and heightened startle response. Id.
He denied experiencing nightmares, but conveyed feeling
depressed. Id. An EKG ordered by Dr. Gerondale
indicated normal results except for an abnormally low resting
heart-rate. Tr. 577. The doctor referred Shaw back to Dr.
Higginbotham; however, Shaw cancelled his appointment with
the psychiatrist and later informed Dr. Gerondale he
preferred to see a different mental health provider. Tr. 707.
that month, Shaw was examined by Dr. John Gardin, a VA
psychologist, for a PTSD assessment. Tr. 536-47. Shaw
reported increased anxiety due to the demands of his
bartending job, marital problems, and having no friends that
he saw on a regular basis. Tr. 541. He also described
"stressor[s]" he experienced while deployed in
Iraq, including being attached to a special forces unit,
living in fear that the Iraqi nationals guarding his outpost
would revolt, witnessing a deadly explosion at the gate of
his outpost, and hearing an explosion caused by a pack of
explosives being thrown into a bonfire. Tr. 542-43, Dr.
Gardin diagnosed severe PTSD and opined that it was
negatively impacting Shaw's marriage, school, and work,
Tr. 546. He found Shaw's reports of depression and panic
attacks were related to his PTSD. Id.
February 2013, Shaw reported improvements in his heart
palpitations, but continued to endorse heightened anxiety at
work and nightmares. Tr. 531. He relayed that lorazepam was
helping him sleep, but left him "too foggy and fatigued
to be useful during the day." Id. Dr. Gerondale
prescribed a trial of prazosin and ordered another consult
for mental health services. Tr. 533.
April 2013, Shaw began treating with Dr. Wendy Linker, a VA
psychiatrist. Tr. 518-29. He reported venlafaxine made him
feel "terrible" and "hopeless, " but
experienced good results with clonazepam and alprazolam. Tr.
519. He had not started taking prazosin because he was afraid
to, but reported that cannabis helped his anxiety more than
medication. Tr. 520. Shaw conveyed that he was doing better
at work, but still felt it likely he would lose his job. Tr.
519. He also described trouble focusing, feelings of
loneliness, and being easily startled by loud noises. Tr.
519. On examination, Dr. Linker noted that Shaw was polite
and cooperative; he had good rapport and eye contact; his
affect was slightly constricted with an anxious mood; he
demonstrated normal speech, with a logical and goal-directed
thought process; his orientation, memory, and concentration
were "grossly intact, " and his insight, judgment,
and impulse control were adequate. Tr. 522-23. Dr. Linker
assessed PTSD and panic disorder with agoraphobia, renewed
Shaw's prescription of lorazepam, prescribed a trial of
citalopram, recommended he start taking the
already-prescribed prazosin, and referred Shaw to mental
health therapy. Tr. 523-24.
following month, Shaw rep oiled feeling more depressed and
irritable to Dr. Linker. Tr. 508. He detailed that although
his employer's opinion of him was improving, he was
becoming more "stressed out at work" due to his
interactions with customers. Id. He informed Dr.
Linker he had not titrated up to a full dose of citalopram
because it made him feel "loopy, " and alleged he
could not work a desk job because he would not be able to
focus. Id. On examination, Dr. Linker noted
Shaw's affect was slightly constricted with an anxious
and dysphoric mood, but he had good rapport, logical thought
processes, and adequate insight, judgment, and impulse
control, Tr. 512, Noting that Shaw had still not tried
prazosin, Dr. Linker stressed that it would likely help his
symptoms and encouraged him to begin taking it. Tr. 509. The
doctor's plan primarily focused on improving Shaw's
sleep and ensuring he was taking his medications as
prescribed, which she believed would result in the greatest
symptom improvement. Tr. 513. Dr. Linker also placed a
consult for mental health counseling; however, the record
reflects that Shaw did not keep his appointment and the
consult was cancelled, Tr. 614-15.
August 2013, Shaw presented to urgent care for treatment of a
sudden onset of anxiety he experienced while leaving for
work. Tr. 405. He reported discontinuing citalopram and
prazosin due to adverse side-effects. Id. The
physician's assistant noted that Shaw appeared anxious,
prescribed alprazolam, encouraged Shaw to start taking
citalopram again, and instructed him to follow up with his
primary care provider. Tr. 405-06.
did not seek mental health treatment again until March 2014,
when he returned to Dr. Linker. Tr. 480-87. He reported
increased anxiety, due in part to delays in his VA disability
application, and working only two days a week because
fulltime work was too stressful. Tr. 481. Shaw also reported
discontinuing citalopram because it made him feel hopeless
and prazosin because it made him feel lightheaded, but he did
not follow up with the doctor about these issues because he
wanted to "try to deal with it himself."
Id. Noting that Shaw made 30 tablets last over five
months, Dr. Linker refilled his prescription of alprazolam,
which he stated worked better than lorazepam. Tr. 482. Shaw
reiterated that cannabis helped reduce his anxiety, but he
could not tolerate it for daily use. Tr. 483. On examination,
Dr. Linker observed that Shaw's appearance was normal,
although he had a ...