United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
Honorable Paul Papak United States Magistrate Judge
Steven Fulsaas ("Fulsaas") filed this action on
February 21, 2017, seeking judicial review of the
Commissioner of Social Security's final decision finding
him disabled only from August 30, 2012, through August 1,
2014, and therefore, denying portions of his application for
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).
argues that the Administrative Law Judge ("ALT")
improperly rejected the medical opinions of Dr. Starr, Dr.
Burns, Dr. Krause, and Dr. Ogisu. For the reasons set forth
below, the Commissioner's final decision should be
reversed and remanded for the immediate payment of benefits.
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. § 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 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.
§ 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 also20 C.F.R. §§ 416.920(a)(4)(i),
416.920(b). Otherwise, the evaluation proceeds to the second
second step, the ALJ considers the medical severity of the
claimant's impairments. SeeBowen, 482 U.S. at
140-41 ;see also20 C.F.R. § 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. § 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. §
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. §§ 416.920(a)(4)(ii),
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 severe1 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,
available at 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. §§
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.
§§ 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. § 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. §
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, available at 1996 WL
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. §
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. §§ 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, 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.
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. §§
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. §§ 416.920(a)(4)(v),
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 Cir.
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). 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).
was born in 1964. Tr. 75. He dropped out of high school after
10th grade and subsequently obtained his GED in 1981. Tr.
283, 744. Prior to his claimed disability onset date of
February 26, 2011, Fulsaas had past relevant work experience
as a furniture mover. Tr. 28, 77.
has been diagnosed with anxiety, posttraumatic stress
disorder ("PTSD"), panic disorder, psychosis,
intermittent explosive disorder, and bipolar disorder with
psychotic features. Tr. 647, 743, 755, 761. His treating
physician, Dr. Fickle, concluded that Fulsaas' psychotic
symptoms appeared to be "delusional and paranoid in
nature." Tr. 761. Fulsaas suffers from suicidal
ideations and has attempted suicide three times. Tr. 763,
781, 800, 1018, 1243, 1405, 1700. Dr. Krause determined that
Fulsaas continued to be a suicide risk. Tr. 801. Fulsaas1
suicidal thoughts reached the point that he went to a bridge
multiple times and sat there for an hour contemplating
suicide. Tr. 800.
December, 2012, Fulsaas reported a very difficult six week
struggle with depression which resulted in near-total
isolation for that time period and included two "serious
bouts of [suicidal ideation]." Tr. 781. Fulsaas
explained that when he has depression he barely eats enough
to stay alive. Tr. 843. A month later, Fulsaas reported that
despite taking his medications, his anxiety was increasing
and he had been isolating himself. Tr. 800. In February,
2013, Fulsaas reported paranoia about people knowing what he
was thinking and presented at an appointment with
"garbled speech." Tr. 815, 834. Two months later,
Fulsaas was suffering from visual and auditory
hallucinations. Tr. 846-47, 1218. He reported that the
hallucinations can cause him to tear "everything
up" in his room. Tr. 846. Fulsaas was also struggling
with depression. 1218.
May 23, 2013, Fulsaas was still suffering from auditory
hallucinations as well as paranoia that people were out to
get him. Tr. 1244. Throughout 2013 and 2014, Fulsaas
continued to grapple with ongoing psychotic symptoms
including paranoid delusions, hallucinations, homicidal
ideations, and suicidal ideations. Tr. 1018, 1274, 1287,
1290, 1300, 1322, 1339, 1364, 1369, 1405, 1496, 1522, 1687,
1700, 1702, 1704, 1711, 1716, 1736. During that time, Fulsaas
was highly medicated and closely monitored, Tr. 762, 880,
1021, 1028, 1238, 1252, 1290.
treating provider observed Fulsaas was severely depressed,
experiencing frequent suicidal ideations, paranoia, and
auditory hallucinations. Tr. 1700. In March, 2015, Dr. Starr
reported that Fulsaas was suffering from paranoid delusions,
"frequently hearing voices and noises that are not
there." Tr. 1831. Dr. Stair also observed that Fulsaas
continued to struggle with anxiety and depression, noting
that "[a]t his worst [Fulsaas] experiences crippling
suicidal ideation." Id.
OF ALJ FINDINGS
first step of the five-step sequential evaluation process,
the ALJ found that Fulsaas had not engaged in substantial
gainful activity since August 30, ...