United States District Court, D. Oregon
ROSEANNEL. S., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
A. Russo United States Magistrate Judge
Roseanne S. brings this action for judicial review of the
final decision of the Commissioner of Social Security
("Commissioner") denying her application for Title
XVI Social Security Income. All parties have consented to
allow a Magistrate Judge enter final orders and judgment in
this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C.
§ 636(c). For the reasons set forth below, the
Commissioner's decision is affirmed and this case is
1980, plaintiff alleges disability for the closed period of
April 22, 2015, through March 23, 2017, due to fibromyalgia,
insomnia, post-traumatic stress disorder ("PTSD"),
anxiety, depression, and headaches, conditions which were
temporarily exacerbated by a June 28, 2012, motor vehicle
accident. Tr. 37-38, 164, 189. On November 1,
2017, a hearing was held before an Administrative Law Judge
("ALJ"), wherein plaintiff was represented by
counsel and testified, as did a vocational expert
("VE"). Tr. 35-66. On March 5, 2018, the ALJ issued
a decision finding plaintiff not disabled. Tr. 13-24. After
the Appeals Council denied her request for review, plaintiff
filed a complaint in this Court. Tr. 1-6.
one of the five step sequential evaluation process, the ALJ
found that plaintiff had not engaged in substantial gainful
activity since the amended alleged onset date. Tr. 15. At
step two, the ALJ determined plaintiffs fibromyalgia was
medically determinable and severe. Id. At step
three, the ALJ found plaintiffs impairments, either singly or
in combination, did not meet or equal the requirements of a
listed impairment. Tr. 16.
plaintiff did not establish presumptive disability at step
three, the ALJ continued to evaluate how plaintiff s
impairments affected her ability to work. The ALJ resolved
that plaintiff had the residual functional capacity
("RFC") to perform light work as defined by 20
C.F.R. § 416.967(b) except she can: tolerate
"frequent but not constant contact with the public and
with coworkers" and occasional contact with supervisors;
and frequently stoop and climb ramps, stairs, ladders, ropes,
and scaffolds. Tr. 18.
four, the ALJ determined plaintiff was unable to perform any
past relevant work. Tr. 22. At step five, the ALJ concluded,
based on the VE's testimony, that plaintiff could perform
a significant number of jobs in the national economy despite
her impairments, such as inserting machine operator, collator
operator, and small parts assembler. Tr. 22-23.
case hinges on the ALJ's treatment of state agency
consulting source Joshua Boyd, Ph.D. Plaintiff argues the ALJ
erred: (1) by rejecting Dr. Boyd's preliminary findings
about the severity of her mental impairments at steps two and
three; and (2) failing to account for all of Dr. Boyd's
concrete functional limitations in the RFC. PL's Opening
Br. 5-8 (doc. 10).
August 2015, Dr. Boyd completed the initial level of social
security disability review. Tr. 67-80. In the "Findings
of Fact and Analysis of Evidence" section, Dr. Boyd
stated "M[a]or] D[epressive] Disorder], PTSD ... are
severe." Tr. 70-73. Yet, in the immediately subsequent
"Medically Determinable Impairments and Severity"
section, Dr. Boyd remarked that plaintiffs medically
determinable mental conditions were both
"Secondary" and "Non Severe." Tr. 73.
Nevertheless, Dr. Boyd determined plaintiff had
"moderate" impairments in maintaining social
functioning and concentration, persistence, or pace. Tr. 74.
The doctor therefore prepared a mental RFC, in which he
translated plaintiffs impairments into concrete functional
restrictions. Tr. 77-78. In particular, Dr. Boyd opined that
plaintiff was capable of "simple repetitive tasks,"
frequent but not constant contact with coworkers and the
public, "occasional interaction with the
supervisor," and "a normal 40 hour workweek."
reconsideration in December 2015, state agency consulting
source Scott Kaper, Ph.D., reviewed additional evidence and
concluded plaintiffs mental impairments were non-severe in
both in the "Findings of Fact and Analysis of
Evidence" and "Medically Determinable Impairments
and Severity" sections. Tr. 88. As a result, Dr. Kaper
opined plaintiffs mental impairments caused no more than mild
functional limitations; he nonetheless found that
"[e]vidence supports the initial decision." Tr.
evaluating plaintiffs claim, the ALJ purported to give
"great weight" to Dr. Boyd and Dr. Kaper, although
he construed both doctors as "not find[ing] any severe
mental impairments." Tr. 20-21. Nevertheless, in
"an abundance of caution," the ALJ included a
non-exertional RFC limitation for "frequent but not
constant contact with the public and with coworkers" and
"occasional contact with supervisor[S]." Tr. 18.
reports of Drs. Boyd and Kaper constitute the only opinion
evidence of record. In terms of treatment evidence, plaintiff
did not seek counseling for the majority of the closed period
at issue. Tr. 323-30, 337-51, 354-59, 363-65, 385-88, 394-98.
Namely, the record reflects plaintiff attended five sessions
with Christopher Smith, Ph.D., between May and July 2015. Tr.
323-30. There are no further records until December 2015,
when plaintiff resumed care with Dr. Smith for approximately
one month before terminating services "[d]ue to
reduction of symptoms." Tr. 337-41, 350-51, 354-49,
363-65; see also Tr. 46-51, 54-58 (plaintiffs
November 2017 hearing testimony indicating fibromyalgia,
coupled with "an abusive relationship," were the