United States District Court, D. Oregon
A. RUSSO UNITED STATES MAGISTRATE JUDGE.
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.
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.
Severe Mental Impairments Prior to June 30, 2010.
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.
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).
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.).
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).
Treating Counselor's Opinion
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.
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
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 ...