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Shaw v. Berryhill

United States District Court, D. Oregon

January 23, 2018

MICHAEL DAVID SHAW, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          Honorable Paul Papak United States Magistrate Judge

         Plaintiff 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 AFFIRMED.

         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). 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 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 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)(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).

         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. §§ 404.152O(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).

         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). 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.

         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). 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.

         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. 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).

         LEGAL STANDARD

         A 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)).

         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 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. 1984)).

         BACKGROUND[1]

         Shaw, 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.

         In 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. Id.

         The 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.

         In 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.

         Later 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.

         In 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.

         In 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.

         The 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.

         In 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.

         Shaw 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 ...


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