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Harris v. Berryhill

United States District Court, D. Oregon

February 1, 2018

EVAN RICHARD HARRIS, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          JOLIE A. RUSSO United States Magistrate Judge

         Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's application for disability insurance benefits and supplemental security income.

         Plaintiff asserts disability beginning August 7, 2008, due to brain damage, Gilbert's syndrome, a back condition, a pelvic condition, a neck condition, anxiety, bipolar disorder, and depression. Tr. 232, 237. After a hearing, an Administrative Law Judge (ALJ) determined plaintiff was not disabled. Plaintiff asserts the ALJ erred in: (1) relying on evidence not in the record; (2)determining plaintiff's mental impairments were not severe; and (3) discrediting plaintiff.

         1. Factual Misstatements

         Plaintiff asserts the ALJ committed reversible error with three factual misstatements. In referencing an August 8, 2013, psychiatric evaluation, the ALJ stated:

The Claimant reported that he lives in a house with family and has adequate self-care skills. He said that he does not do household chores, run errands, shop or cook but was able to snow ski, skateboard and work out. He is fully capable of performing all activities of daily living whether he chooses to do so or not.... In fact, office treatment records submitted by Kaiser Permanent document low motivation.

Tr. 22 (referencing Tr. 367). Plaintiff notes the record does not include any document indicating low motivation. While the ALJ did discount plaintiff's allegations of disabling pain based in part on daily activities, there was no reference to low motivation. Tr. 25. The misstatement did not impact the analysis. Thus, elimination of the misstatement would not have changed the result, and any error was harmless. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012).

         Plaintiff next argues the ALJ misstated the record when he stated, "It is notable that the claimant had no independent psychological treatment...." Tr. 22. The only treatment record plaintiff points to is a medication management session with Dr. Moiez Khankanian, M.D., who told plaintiff to see a therapist. Tr. 298-99. Plaintiff does not demonstrate any record support for psychological therapy treatment. To the extent the ALJ's statement is in error, the error is harmless.

         Finally, plaintiff notes the ALJ misstated that he "has a girlfriend who is pregnant with his son." Tr. 22. At the time of the hearing, plaintiff was married and his wife had given birth to twins about two years prior. It appears the ALJ was referencing a diagnostic impression after an August 30, 2012 consultative exam in which Dr. Margaret Donohue noted plaintiff was "[l]iving with girlfriend, new baby on the way...." Tr. 335. The error is harmless.

         2. Severity of Mental Impairments

         Although plaintiff styles this argument as an error at step two of the analysis, the argument more accurately pertains to plaintiff's residual functional capacity (RFC) and limitations with respect to the ability to perform other work at step five of the analysis. In this regard, plaintiff contends the ALJ erred in rejecting moderate limitations assessed by Dr. Margaret Donohue and limitations noted by his wife.

         a. Dr. Donohue

         Dr. Donohue opined plaintiff:

would be able to understand, remember and carry out short, simplistic instructions with mild difficulty.... He would have moderate difficulty to understand remember and carry out detailed and complex instructions. He would have no difficulty to make simplistic work-related decisions without special supervision.... He would have mild difficulty to respond to change in normal workplace setting. He would ...

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