Stiehl v. Commissioner of Social Security

Filing 20

Order and Opinion. The Commissioner's decision is affirmed and this case is dismissed. See formal order. Signed on 6/24/2014 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SOREN A. STIEHL,
Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Tim Wilborn
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, Nevada 89137
Attorney for plaintiff
S. Amanda Marshall
United States Attorney
Ronald K. Silver
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Lisa Goldoftas
Special Assistant U.S. Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER

Case No. 1:13-cv-00237-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Plaintiff Soren Stiehl brings
Social Security Act

("Act")

this

action pursuant to the

to obtain judicial review of a final

decision of the Cormnissioner of Social Security ("Cormnissioner").
The Cormnissioner denied plaintiff's application for supplemental
security income
below,

("SSI")

under the Act.

For the reasons set forth

the Cormnissioner's decision is affirmed and this case is

dismissed.
PROCEDURAL BACKGROUND

On February 11, 2009, plaintiff applied for SSI. Tr. 119-21.
His application was denied initially and upon reconsideration. Tr.
65-68,

71-72.

On

June

23,

2011,

a

hearing was

held before

an

Administrative Law Judge ( "ALJ") , wherein plaintiff was represented
by counsel

and testified.

Tr.

23-46.

Plaintiff's mother

and a

vocational expert ("VE") also testified. Id. On July 25, 2011, the
ALJ issued a decision finding plaintiff not disabled. Tr. 49-60. On
December 7,

2012, the Appeals Council denied plaintiff's request

for review. Tr. 1-3. Subsequently, plaintiff filed a complaint in
this Court.
STATEMENT OF FACTS

Born on May

23,

1967,

plaintiff was

41

years

old on

the

alleged onset date of disability and 43 years old at the time of
the hearing. Tr. 23, 119. Plaintiff graduated from high school. Tr.
2 7,

59.

He worked previously as a

Page 2 -OPINION AND ORDER

cleaner,

pre sorter and tally

person; he also changed oil at a car service business. Tr. 31, 4142, 166. Plaintiff alleges disability as of February 1, 2009, based
on a combination of mental impairments, including anxiety disorder,
post-traumatic
hyperactivity

disorder

stress

("PTSD"),

( "ADHD") ,

disorder

attention

personality

deficit

disorder

and

cognitive disorder. Pl.'s Opening Br. 2.
STANDARD OF REVIEW

The court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are supported by
substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498,
501

(9th Cir.

scintilla.

1989).

Substantial evidence is "more than a mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Richardson v.
Perales,

402 U.S.

389,

401

(1971)

(quoting Consol. Edison Co. v.

N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the
evidence

that

supports

and

conclusions." Martinez v.

detracts

Heckler,

from

807

the

[Commissioner's]

F.2d 771,

772

(9th Cir.

1986) . Variable interpretations of the evidence are insignificant
if the Commissioner's

interpretation is

rational.

See Burch v.

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The

initial

burden

of

proof

rests

upon

the

claimant

to

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th
Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason

Page 3 -OPINION AND ORDER

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).

SEQUENTIAL DISABILITY EVALUATION

The
process

Commissioner

has

established

a

five-step

sequential

for determining whether a person is disabled.

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Commissioner

evaluates

whether

a

Bowen v.

416.920. First, the

§

claimant

is

engaged

in

"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R.
§

416.920(b). If so, the claimant is not disabled.
At step two, the Commissioner determines whether the claimant

has a "medically severe impairment or combination of impairments."
Yuckert,

482

U.S.

at

140-41;

20

C.F.R.

416.920(c).

§

If

the

claimant does not have a severe impairment, he is not disabled.
At

step

three,

the

Commissioner

resolves

whether

the

claimant's impairments, either singly or in combination, meet or
equal

"one

[Commissioner]

of

a

number

acknowledges

of
are

listed
so

impairments
severe

as

to

that

the

preclude

substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R.
§

416.920(d).

If so,

the claimant is presumptively disabled;

if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at
141.
At step four, the Commissioner determines whether the claimant
can perform "past relevant work." 20 C.F.R.

Page 4 -OPINION AND ORDER

§

416.920(e).

If the

claimant can work,

he is not disabled; if he cannot perform his

past relevant work, the process moves to step five and the burden
shifts to the Commissioner.
At

step

five,

the

Commissioner

must

establish

that

the

claimant can perform other work that exists in significant numbers
in the national economy.
416.920(f),

(g).

If

the

Yuckert,

482 U.S.

Commissioner

claimant is not disabled. 20 C.F.R.

§

at 142;

meets

this

20 C.F.R.
burden,

§

the

416.966.

THE ALJ'S FINDINGS

At step one of the five step sequential evaluation process
outlined

above,

the

ALJ

found

plaintiff

had

not

engaged

in

substantial gainful activity since the alleged onset date. Tr. 54.
At step two, the ALJ determined plaintiff had the following severe
impairments:

generalized

anxiety

disorder/PTSD,

personality

disorder, substance abuse/dependence, ADHD and cognitive disorder.
Id.
At step three, the ALJ found plaintiff's impairments did not
meet or medically equal the requirements of a listed impairment.
Tr. 54. Because plaintiff was not presumptively disabled at step
three,

the ALJ continued to evaluate how plaintiff's impairments

effected his ability to work. The ALJ found that plaintiff had the
residual functional capacity

("RFC")

to perform a full range of

work at all exertional levels, but with nonexertional limitations
to "unskilled work with brief and superficial contact with the

Page 5 -OPINION AND ORDER

public." Tr. 57.
At step four,

the ALJ found plaintiff had no past relevant

work. Tr. 59. At step five, the ALJ determined that jobs existed in
significant
plaintiff

numbers

in

the

national

could perform despite

and

his

local

economy
such

impairments,

that
hand

as

packer, hand assembler and hand sorter. Tr. 59-60. As such, the ALJ
concluded that plaintiff was not disabled under the Act. Tr. 60.
DISCUSSION

Plaintiff argues that the ALJ erred by:
testimony;

( 2)

improperly

rejecting his

failing to afford full weight to the opinion of

Katherine Greene, Psy.D.;
( 4)

( 1)

(3) discrediting lay witness testimony;

determining

the

RFC;

( 5)

failing

to

find

him

presumptively disabled at step three under listing 12.06; and (6)
failing to support the step five finding with substantial evidence.
I. Plaintiff's Credibility
Plaintiff
subjective

asserts

symptom

that

testimony.

the

ALJ

When

improperly
a

claimant

rejected
has

his

medically

documented impairments that could reasonably be expected to produce
some degree of the symptoms complained of, and the record contains
no affirmative evidence of malingering,

"the ALJ can reject the

claimant's testimony about the severity of .

. symptoms only by

offering specific,

clear and convincing reasons

Smolen v.

80

Chater,

F.3d 1273,

1281

(9th Cir.

for doing so."
1996) (internal

citation omitted). A general assertion that the claimant is not

Page 6 -OPINION AND ORDER

credible is insufficient; the ALJ must "state which . . . testimony
is not credible and what evidence suggests the complaints are not
credible." Dodrill v.

Shalala, 12 F.3d 915,

918

(9th Cir. 1993).

The reasons proffered must be "sufficiently specific to permit the
reviewing

court

to

conclude

that

the

ALJ

did

discredit the claimant's testimony." Ortez a v.
748,

750.

(9th Cir.

1995)

(internal

not

arbitrarily

Shalala,

citation omitted).

50 F. 3d
If the

"ALJ's credibility finding is supported by substantial evidence in
the record,

[the court] may not engage in second-guessing." Thomas

v. Barnhart, 278 F.3d 947,

959

(9th Cir. 2002) (internal citation

omitted).
At the hearing, plaintiff testified that it takes him several
hours to get ready in the morning because he becomes overwhelmed
and

falls

depression.

into
Tr.

a
28.

"spiral
He

of

also

anxiety"
testified

that
that

transitions
he

was

into

forced

to

withdraw from community college because he felt too overwhelmed.
Tr. 30. He asserted that anxiety makes his asthma worse, such that
when he wakes up in the morning and is "supposed to be in the
shower,

I'm like on my hands and knees on the floor somewhere,

trying to just get my breath, get my focus,

get myself to relax,

breathing." Tr. 33. Plaintiff admitted to smoking marijuana the day
before the hearing but stated that he has been trying to reduce his
use. Id. Additionally, plaintiff stated that he rides his bicycle
"everywhere," including to his appointments. Tr. 31.

Page 7 -OPINION AND ORDER

After summarizing plaintiff's testimony,

the ALJ found that

plaintiff's medically determinable impairments could reasonably be
expected

to

"statements

cause

the

concerning

alleged
the

symptoms;

intensity,

however,

persistence

plaintiff's
and

limiting

effects of these symptoms are not credible" due to his history of
"irregular" mental health treatment. Tr. 58.
Failure to seek or follow medical treatment is a clear and
convincing reason to reject a claimant's subjective statements.
Burch,

400 F.3d at 681.

Nevertheless,

before drawing a negative

inference from a claimant's failure to seek or follow treatment,
the ALJ must consider "any explanations that the individual may
provide, or other information in the case record, that may explain
infrequent or irregular medical visits." SSR 96-7p, available at
1996 WL 374186. Here, although the ALJ did not extensively analyze
plaintiff's

credibility,

he

adequately

provided

a

clear

and

convincing reason supported by substantial evidence, for rejecting
plaintiff's hearing testimony.
The

record

treatment

reveals

that

plaintiff

did

not

seek

regular

for either his mental impairments or substance abuse

issues, or follow his doctors'

recommendations. Notably,

despite

plaintiff's assertion of disabling mental conditions, he sought no
longitudinal psychological treatment.
250-57,

269-72,

296-98.

In

fact,

the

See,

e.g.,

record

224-34,

before

240-44,

the

Court

contains no evidence reflecting that plaintiff received any regular

Page 8 -OPINION AND ORDER

counseling during the relevant time period. Further, he repeatedly
refused mental

health

services

psychological impairments. See,

and

prescriptions

e.g., Tr.

240,

to

253,

treat

289,

his

296-97.

Medical records also show that plaintiff failed to take his asthma
medication on a

regular basis.

Tr.

253.

As

the ALJ reasonably

determined, this failure to seek psychological treatment or follow
his

doctors'

orders belies

plaintiff's

hearing statements

that

anxiety rendered him unable to work. 1
The Court acknowledges plaintiff's argument that he sought
mental

health

treatment

irregularly

due

to

"poverty,

frequent

periods of homelessness, periods of incarceration and inability to
afford prescribed medication." Pl.'s Opening Br. 17. These reasons,
however, are not reflected in the record itself. For instance, in
refusing medications or services, plaintiff never indicated that it
was due to

lack of resources.

See Tr.

253,

296-97.

The record

contains several treatment notes for plaintiff's various temporary

1

While not dispositive, the Court notes that there are
repeated references in the record to plaintiff's issues with
alcohol and marijuana. For instance, Dr. Thomas Shields, Ph.D.,
found plaintiff to have a "notable history of alcohol dependence
spanning between age 19 and March of this year (2009) ." Tr. 259.
Another medical provider reported that plaintiff's "anxiety is
secondary to his alcoholism and homelessness" and that it was
"unclear if his anxiety is independent of his alcohol use." Tr.
244. Plaintiff contends that he has not had a drink since March
2009. Tr. 259. Nonetheless, the fact remains that he continues to
smoke marijuana and abused alcohol throughout the majority of the
adjudication period, making it difficult to determine whether his
mental impairments would be severe in the absence of his
substance abuse issues.
Page 9 -OPINION AND ORDER

physical impairments,

indicating he was able to obtain services

when he wanted or believed he needed them. See Tr. 158-62, 224-34.
The record contains no evidence that plaintiff looked into no-cost
or low-cost medical options.
Thus, the ALJ provided clear and convincing reasons, supported
by

substantial

evidence,

for

rejecting

plaintiff's

subjective

symptom statements. The ALJ's credibility finding is affirmed.
II. Medical Opinion Evidence
Plaintiff argues that the ALJ erred by rejecting the opinion
of Dr. Greene. There are three types of medical opinions in social
security cases: those from treating, examining, and non-examining
doctors. Lester v. Chater,

81 F.3d 821,

reject

opinion

the

uncontroverted

830

of

a

(9th Cir.

treating

or

1995). To
examining

doctor, the ALJ must present clear and convincing reasons for doing
so.

Bayliss

v.

(citing Lester,

Barnhart,

427

F.3d

1211,

81 F. 3d at 8 30-31) .

1216

(9th Cir.

2005)

If a treating or examining

doctor's opinion is contradicted by another doctor's opinion, it
may be rejected by specific and legitimate reasons. Id.
In December 2010 and January 2011,
neuropsychological
Greene's

evaluation

assessment

interview with his
assessment tests.

was

based

mother,
Tr.

cognitive disorder,

302.

Greene performed a

on

plaintiff.

Tr.

in

plaintiff's

self-reports,

and the

results

302-09.

Dr.
an

from psychological

The doctor diagnosed plaintiff with

anxiety disorder,

Page 10-0PINION AND ORDER

Dr.

ADHD,

PTSD,

and cannabis

dependence in partial remission, and assigned him a GAF score of
60,

indicating moderate impairment.

Tr.

307;

see also Walton v.

Colvin, 2013 WL 2659658, *13 (D. Or. June 10, 2013)
of 60

.

corresponds to

("a GAF score

'moderate difficulty in social

[and]

occupational functioning (e.g., few friends, conflicts with peers
or

co-workers)'")

(quoting

American

Psychiatric

Association:

Diagnostic and Statistical Manual of Mental Disorders 34

(4th ed.

2000, text revision)).
In

June

2 011,

Dr.

Greene

completed

a

check-the-box

form

prepared by plaintiff's counsel. Tr. 311-314. Dr. Greene indicated
that plaintiff had.marked limitations in concentration, persistence
or pace, maintaining social functioning and activities of daily
living.

Tr.

313;

see also Tr.

311-12.

Dr.

Greene also reported

that, although she never treated plaintiff and had not examined his
medical file, he suffered four or more episodes of decompensation.
Tr. 314; see also Tr. 316.
The ALJ afforded "no weight" to Dr. Greene's June 2011 report
because her "conclusions are not supported by her own findings."
Tr. 58. The ALJ noted that Dr. Greene's December 2010 and January
2011

assessment

addition,

the

revealed

ALJ

only

discredited

moderate
Dr.

impairments.

Greene's

June

2011

Id.

In

opinion

because "the doctor did not describe the four or more incidents of
decompensation she asserts [plaintiff] suffered in the last year."
Id.

Page 11-0PINION AND ORDER

An ALJ "need not

accept

the opinion of

a

treating

physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings." Thomas, 278 F.3d at 957. An ALJ
may also "permissibly reject . . . check-off reports that [do] not
contain any explanation of the bases of their conclusions." Crane
v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); see also Holohan v.
Massanari, 246 F.3d 1195, 1202

(9th Cir. 2001)

("the regulations

give more weight to opinions that are explained than to those that
are not").
Here,

Dr.

conclusory,
findings.
whatsoever
Greene's

Greene's

and not

June

2011

accompanied by

check-off

opinion

reference

to

is

any

brief,

objective

Tr. 311-314. In fact, the are no narrative descriptions
on

this

opinion

questionnaire.

in

support

of

Id.

As

the

plaintiff's

ALJ

found,

disabled

Dr.

status

contradicts her own prior assessment. Compare id., with Tr. 302-09.
Specifically,

Dr.

Greene

opined

that

plaintiff

impaired in December 2010 and January 2011,

was

but

moderately

in June 2011,

without reviewing any additional medical evidence or re-examining
plaintiff,

she reported that he was markedly limited.

concerning

plaintiff's

clarified,

via

a

episodes

letter

dated

of

decompensation,

several months

after

decision, that her opinion was based on plaintiff's

2

Moreover,
Dr.
the

Greene
ALJ' s

self-reports. 2

The Court acknowledges that, in her October 2011 letter,
Dr. Greene also indicated that the GAF score assessed in December
2010 and January 2011 was not inherently inconsistent with her
Page 12-0PINION AND ORDER

Tr. 316; see also Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.
1995)

("[a]n opinion of disability premised to a large extent upon

the claimant's own accounts of his symptoms and limitations may be
disregarded, once those complaints have themselves been properly
discounted"). Therefore, the ALJ's reasons for assigning no weight
to Dr. Greene's opinion were both legally sufficient and supported
by

substantial

evidence.

Consequently,

the

ALJ's

decision

is

affirmed as to this issue.
III. Lay Witness Testimony
Plaintiff contends that the ALJ erred by improperly rejecting
the lay witness testimony of his mother, Adrienne Fitzgerald. Lay
testimony regarding a

claimant's symptoms

or how an impairment

affects the ability to work is competent evidence that an ALJ must
take into account. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.
2012)

(citation omitted). The ALJ must provide "reasons germane to

each witness" in order to reject such testimony. Id.
At the hearing,
obsessive

behaviors

Ms.
and

Fitzgerald testified about plaintiff's
unusual

tendencies,

such

a

collecting

engine parts on the floor of his old apartment. Tr. 37-38. She also
testified

about

plaintiff's

interview and the

effect

of

inappropriate
stress

behavior

on plaintiff's

in

a

attempts

June 2011 report. Tr. 316. The ALJ did not have access to this
information at the time of his decision. Regardless, this
evidence was capable of more than one rationale interpretation
and must be upheld. Batson v. Comm'r of Soc. Sec. Admin., 359
F.3d 1190, 1198 (9th Cir. 2004).
Page 13-0PINION AND ORDER

job
to

attend community college.

Tr.

39-42.

Ms.

Fitzgerald stated that

plaintiff was let go from his last job in a body shop because he
"couldn't get along" with the owner of the business. Tr. 41-42. She
concluded that plaintiff "doesn't seem to have a good handle on
following directions, getting along with people." Tr. 40.
The ALJ found that Ms. Fitzgerald's hearing testimony, while
consistent with her earlier statements,
medical evidence of record.

Tr.

was contradicted by the

58. Additionally,

the ALJ noted

that Ms. Fitzgerald "is very concerned about [plaintiff] and seeks
to assist him as much as she can," and considered her statements
"in that light." Id. Inconsistency with the medical evidence is an
acceptable reason for discrediting lay witness testimony. Bayliss,
427

F.3d at 1218.

Further,

an ALJ may permissibly consider the

close relationship between a lay witness and a claimant. 3 Greger v.
Barnhart, 464 F.3d 968, 972

(9th Cir. 2006).

With the exception of Dr. Greene, all of the medical opinion
evidence reflects

that plaintiff is

consistent with the RFC.

See Tr.

capable of performing work

258-64,

273-89,

299.

Even Dr.

Greene indicated in her January 2011 report that plaintiff was only

3

Plaintiff argues that "it is the very nature of lay witness
testimony for the witness to have a personal relationship with
the claimant," such that the ALJ erred in relying on plaintiff's
close relationship with his mother to discredit her testimony.
Pl.'s Reply Br. 7. This argument overstates the ALJ's reasoning.
Here, the ALJ simply considered the relationship between the lay
witness and plaintiff; it was not the dispositive reason for
discrediting Ms. Fitzgerald's third-party statements.
Page 14 -OPINION AND ORDER

mildly impaired regarding attention and concentration to a single
task. Tr. 306. As the ALJ reasonably determined, this evidence is
inconsistent with Mr.

Fitzgerald's hearing testimony.

Therefore,

the ALJ properly considered Ms. Fitzgerald's testimony and provided
adequate reasons for assigning it little weight.
IV. The ALJ's RFC Assessment
Plaintiff challenges the ALJ's RFC determination as follows:
(1)

the ALJ failed to assess a separate mental RFC;

and

(2)

his

moderate impairments in concentration, persistence or pace and in
maintaining social function were not accounted for. The RFC is the
maximum that a claimant can do despite his limitations. 20 C.F.R.
§

416.945 (a).

In

determining

the

RFC,

the

ALJ

must

consider

restrictions imposed by all of a claimant's mental and physical
impairments,
relevant

even those

medical

and

that

other

are

not

evidence,

severe,

and evaluate the

including

the

claimant's

testimony. SSR 96-Bp, available at 1996 WL 374184. Only limitations
supported by substantial evidence must be incorporated into the RFC
and, by extension, the dispositive hypothetical question posed to
the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).
A. Mental RFC
The ALJ considered all of plaintiff's conditions,

including

his mental impairments, when making the RFC determination. Tr. 5760.

Further,

superficial

by limiting him to nunskilled work with brief and
contact

with

Page 15-0PINION AND ORDER

the

public,"

the

ALJ accomodated

for

plaintiff's
Plaintiff's

psychological
argument

impairments

regarding

the

in

RFC.

failure

ALJ' s

the

to

Tr.

57.

perform a

"mental RFC assessment" is without merit. See Valvo v. Astrue, 2013
WL 1326588, *11 (D. Or. Mar. 30, 2013).

B. Moderate Impairments
Using the technique outlined in 20 C.F.R.
found,

at step two,

416.920a, the ALJ

that plaintiff had moderate limitations with

regard to concentration,
social

§

functioning.

persistence or pace and in maintaining
55.

Tr.

The

mild,

or

moderate,

severe

limitations, in the broad categories of activities of daily living,
maintaining social functioning, and concentration, persistence or
pace, that are assessed as part of the special technique "are not
an RFC assessment but are used to rate the severity of mental
impairment(s)

at

steps

2

and

3

of

the

sequential

evaluation

process"; rather, the "RFC assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment
by itemizing various functions." SSR 96-8p,
374184;

see

also

Rogers

v.

Comm'r

Fed.Appx. 15, 17-18 (9th Cir. 2012)

of

available at 1996 WL

Soc.

Sec.

Admin.,

490

(moderate impairments assessed

on a psychiatric review technique form "in broad functional areas
used

at

steps

two

and

three"

did

not

equate

to

concrete

work-related limitations for RFC); Tr. 57 (ALJ specifically noting
that limitations found during his step two analysis were "not a
[RFC] assessment") .

Page 16-0PINION AND ORDER

Accordingly,

term

~the

'moderate'

does

not

necessarily

indicate a degree of limitation that must be expressly reflected in
the RFC assessment [because it] does not inherently translate to a
concrete functional limitation." Brink v. Astrue, 2013 WL 1785803,
*5

(D. Or. Apr. 24, 2013)

inquiry

is

whether

substantial

the

evidence"

~[T]he

(collecting cases).
ALJ's

and

RFC

assessment

~consistent

with

is

dispositive

supported

the

by

restrictions

identified in the medical testimony." Id. (citing Stubbs- Danielson,
539 F.3d,

1169,

1173-74

(9th Cir.

2008));

see also Rogers,

490

Fed.Appx. at 17-18.
i. Concentration, Persistence or Pace
The medical opinion evidence in this case is very limited. It
consists of reports from Dr.
analyses

performed

by

Shields'

assessment

did not

attention,
such,

Dr.

Shields and Dr.

various

state

~reveal

Greene,

agency
any

consultants.

severe

opined

that

plaintiff

Dr.

impairments

concentration or memory functioning." Tr.
Shields

along with

~was

in

58, 264. As
capable

of

understanding, remembering, and carrying out simple to moderately
difficult,

1-3

step

instructions."

Id.

Likewise,

Joshua

Boyd,

Psy.D., a state agency consultant, found that, despite plaintiff's
moderate impairment in concentration, persistence or pace, he was
nonetheless capable of performing
283,

289;

see

also

Tr.

299

~simple

(state

1-3 step job tasks." Tr.

agency

consultant

Kennemer, Psy.D., affirming Dr. Boyd's opinion).

Page 17-0PINION AND ORDER

Kordell

The only other opinion evidence in the record is from Dr.
Greene;

however,

as stated above,

weight to her opinion.

4

the ALJ properly assigned no

Accordingly,

the ALJ properly translated

plaintiff's moderate impairment in concentration, persistence or
pace by limiting him to "unskilled work." See Sabin v. Astrue, 337
Fed.Appx.
*6-7.

617,

620-21

(9th Cir. 2009); Brink, 2013 WL 1785803 at

The ALJ therefore did not err in formulating the RFC in

regard to plaintiff's moderate limitation in this category.
ii. Maintaining Social Functioning
Dr. Shields reported that plaintiff entered his office in a
"happy, pleasant mood; joking and making efforts to facilitate the
rapport between us." Tr. 262. Dr. Shields opined that plaintiff did
not exhibit any adverse social behavior during his evaluation, such
that

he did not

functioning.
moderate

Tr.

ascribe any limitations
2 64.

impairment

in

Dr.

Boyd,

this

in maintaining social

who assessed plaintiff with a

category,

reported

that

plaintiff

"should avoid working directly with the public, although he is a
jovial kind of guy." Tr. 289; see also Tr. 253. While Dr. Greene

4

Plaintiff points to a low score on a processing speed
index, administered by Dr. Greene, as evidence that the ALJ did
not consider all of his limitations. Pl.'s Opening Br. 15-16.
This index was merely a subset of his full-scale IQ, which, at
83, was in the low average range. See Tr. 305 (Dr. Greene
reporting that plaintiff's overall IQ score "was brought down by
an extremely low processing speed index"). In other words,
despite his limitations in processing speed, plaintiff is of
average intelligence, which is not itself indicative of
disability. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C.
Page 18-0PINION AND ORDER

indicated plaintiff was more limited in social functioning,

as

discussed above, the ALJ properly rejected that report. Thus, the
ALJ did not err in finding that plaintiff was capable of
superficial contact with the public." Tr.

57.

~brief

The ALJ' s

and

RFC is

affirmed.
V. Listing 12.06
Plaintiff

contends

that

the

ALJ

erred

at

step

three

in

determining that his impairments did not meet or equal listing
12.06. To establish a listed impairment at step three, the claimant
must demonstrate that

~all

of the specified criteria [are met]."

Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

~An

impairment that

manifests only some of those criteria, no matter how severely, does
not qualify." Id. The requirements of listing 12.06 are:
A: Medically documented findings of at least one of the
following: ( 1) Generalized persistent anxiety accompanied
by three out of the four of the following signs or
symptoms
(a)
Motor
tension;
or
(b)
Autonomic
hyperactivity; or (c) Apprehensive expectation; or (d)
Vigilance and scanning; or (2) A persistent irrational
fear of a specific object, activity, or situation which
results in a compelling desire to avoid the dreaded
object, activity or situation; or (3) Recurrent severe
panic attacks manifested by a sudden unpredictable onset
of intense apprehension, fear, terror and sense of
impending doom occurring on the average of at least once
a week; or (4) Recurring obsessions or compulsions which
are a source of marked distress; or (5) Recurrent and
intrusive recollections of a traumatic experience, which
are a source of market distress; and
B. Resulting in at least two of the following: (1) Marked
restrictions in activities of daily living; or (2) Marked
difficulties in maintaining social functioning; or (3)
Marked
difficulties
in
maintaining
concentration,
persistence or pace;
or
(4)
Repeated episodes of
Page 19-0PINION AND ORDER

decompensation, each of extended duration; or
C.
Resulting in a complete inability
independently outside of one's home.
20 C.F.R. pt. 404, subpt. P, app. 1,

§

to

function

12.06; see also Evenhus v.

Astrue, 815 F.Supp.2d 1154, 1159 (D. Or. 2011).
As noted above, the ALJ found at step two that plaintiff was
mildly

restricted

restricted

in

in

activities

maintaining

social

of

daily

living,

functioning,

and

moderately
moderately

restricted in concentration, persistence or pace, with no episodes
of decompensation. Tr. 55. As a result, the ALJ found at step three
that plaintiff did not meet or equal the criteria of listing 12.06.
Tr. 54.
In challenging the ALJ's step three finding, plaintiff places
great weight on Dr.

Greene's June 2011 report.

properly discredited Dr.

Because the ALJ

Greene's opinion and there is no other

evidence of any marked impairment in activities of daily living,
maintaining social functioning,
pace,

plaintiff

12. 06' s

cannot

or concentration, persistence or

establish

B or C criteria.

As

such,

the

requirements

of

listing

the ALJ properly found that

plaintiff did not meet or equal listing 12.06 at step three.
VI. The ALJ's Step Five Finding
Plaintiff reasserts his previous allegations of error to argue
that the ALJ failed to account for all of his limitations in the
RFC,

such that the ALJ's step five finding was not supported by

substantial evidence. As discussed above,
Page 20-0PINION AND ORDER

the ALJ's RFC included

restrictions for all of plaintiff's well-supported limitations.
Likewise, the dispositive hypothetical question posed to the VE was
accurate and complete. Compare Tr.
Bayliss,

427

F.3d at 1217-18.

57,

with Tr.

Accordingly,

44-45;

the ALJ's

see also
step five

finding is upheld.
CONCLUSION

The

Commissioner's

decision

is

AFFIRMED and this

DISMISSED.
IT IS SO

ORDER~D

Dated this

cJ~V~ay

of June 2014.

Ann Aiken
United States District Judge

Page 21-0PINION AND ORDER

case

is