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Kirk D. v. Berryhill

United States District Court, D. Oregon

December 17, 2018

KIRK D., [1] Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.



         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 (SSI). Plaintiff asserts disability beginning June 1, 2008 due to attention deficit hyperactivity disorder, post-traumatic stress disorder, obsessive compulsive disorder, manic depression, anxiety, arthritis, and social phobia. Tr. 238, 266.

         After a hearing held on March 22, 2016, an administrative law judge (ALJ) determined plaintiff was not disabled as of his last date insured, June 30, 2010, and therefore denied his application for disability insurance benefits. In addition, the ALJ determined plaintiff was not disabled as of the date of the decision, and thus denied his application for SSI. Plaintiff asserts the ALJ erred by: (1) failing to find plaintiff had a severe mental impairment prior to his last date insured; (2) rejecting a treating counselor's opinion that plaintiff has marked limitations in concentration, persistence, pace, and maintaining attendance; and (3) rejecting witness statements.

         A. Severe Mental Impairments Prior to June 30, 2010.

         The medical record provided to the Social Security Administration (Administration) prior to plaintiffs last date insured, consists of only a few pages. Tr. 413-420. Although plaintiff asserts limitations due to mental impairments, he has provided no evidence that any mental impairments were diagnosed by an acceptable medical source prior to his last date insured. The only mention in the medical record of a mental impairment diagnosis prior to plaintiff's last insured appears in a 2011 chart note indicating bipolar disorder on a “problems list” with a “first date” of July 13, 2007. Tr. 406. Because of the lack of diagnosis of a mental impairment prior to the last date insured, the ALJ found the alleged conditions were nonmedically determinable impairments. Tr. 20. The ALJ did seek consultative opinions from David T. Scott, Ph.D., and Joshua Boyd, Psy.D., who reported there was insufficient evidence to evaluate claimant's impairments before his last date insured. Tr. 22. The ALJ also noted plaintiff failed to present any further evidence from the period before the last date insured at the hearing level as well. Tr. 22. At the hearing, plaintiff's counsel remarked, “[i]t would be interesting to see some of the past medical records, ” however, counsel failed to supplement the record in this regard. Tr. 50.[2]

At step two, [plaintiff has] the burden to show [he has] a medically determinable impairment or combination of impairments .... An impairment is medically determinable if it results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.
To be medically determinable, a ... mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings ..... Signs are anatomical, physiological, or psychological abnormalities that can be observed, apart from the claimant's statements; signs must be shown by medically acceptable clinical diagnostic techniques.... Laboratory findings are anatomical, physiological, or psychological phenomena that can be shown by the use of medically acceptable laboratory diagnostic techniques.... Symptoms are the claimant's own descriptions of his physical or mental impairment ..... However, a claimant's statement of symptoms alone is not enough to establish a physical or mental impairment.

Murray v. Colvin, 2016 WL 4528461, at *1 (W.D. Wash. Aug. 30, 2016).

         In establishing an impairment, it is plaintiff's responsibility to submit evidence supporting his disability. The Administration will consider only impairments for which it receives evidence. 20 C.F.R. § 404.1512(a)(1). Plaintiff must inform the Administration of, among other things, his medical sources and the nature and severity of his impairments. Id. Although the Administration is responsible for developing the record, it need only make a reasonable effort to assist obtaining medical information from entities that maintain plaintiff's medical records. 20 C.F.R. § 404.1512(b). While plaintiff asserts the ALJ has failed to develop the record in this regard, the plaintiff also fails to identify which medical sources the ALJ should have contacted for mental health records prior to his last date insured. Accordingly, the ALJ did not err in finding plaintiff failed to establish a medically determinable severe mental impairment prior to his last date insured. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (It is plaintiff's duty to furnish evidence showing a medical determinable impairment.).

         Moreover, although the ALJ stopped at step two for purposes of evaluating whether plaintiff was entitled to disability insurance benefits, the ALJ did evaluate plaintiff's SSI application. For purposes of SSI, the ALJ determined plaintiff has severe anxiety, depression, bipolar disorder, panic disorder, and substance abuse disorder. Tr. 23. Nonetheless, the ALJ ultimately found plaintiff retained the residual functional capacity to perform work existing in significant numbers in the national economy. Accordingly, even if the ALJ erred in failing to find a severe mental impairment before plaintiff's last date insured, such error was harmless. Cf., e.g., Teague v. Astrue, 2010 WL 5094252, at *4 (C.D. Cal. Dec. 7, 2010) (failure to find impairment severe harmless if ALJ resolves step 2 in plaintiff's favor; if the ALJ nonetheless considered the impairment; or if substantial evidence demonstrates non-disability regardless of the impairment).

         B. Treating Counselor's Opinion

         On December 8, 2015, plaintiff began treatment with Luke-Dorf Integrated Assessment. Tr. 580. Licensed Professional Counselor William Feldman worked with plaintiff to address his anxiety. Tr. 591. On May 5, 2016, Feldman opined that plaintiff had marked limitations in understanding and remembering very short and simple instructions, carrying out very short and simple instructions, maintaining attention for two hour segments, and maintaining regular attendance and punctuality. Tr. 613. Feldman further opined that plaintiff had marked limitations in maintaining concentration, persistence, and pace. Tr. 614.

         The ALJ gave greater weight to the assessments of Drs. Scott and Boyd, who opined plaintiff could perform simple one to three step tasks and familiar detailed tasks at a predictable pace. Tr. 30, 138, 165. The ALJ rejected Feldman's opinion stating:

the claimant has been tangential in sessions with Mr. Feldman but he was redirectable, the examining psychologist observed that the claimant could do a serial sevens exercise for five operations and the examining physician observed that the claimant's mental status was "good." The objective evidence of the claimant's mental functioning at the consultative examinations strongly suggests he does not have marked limitations in understanding, remember, or carrying out simple work. His limited treatment history and activities of daily living also suggest that he is not markedly limited in performing and sustaining simple work. It is also notable that Mr. Feldman did not respond to ...

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