Ruth v. Commissioner Social Security Administration

Filing 42

OPINION & ORDER: The Commissioner's decision denying Ruth's application for DIB and SSI is Affirmed and this case is Dismissed. Signed on 10/26/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CARL H. RUTH,
Plaintiff,
1 :16-cv-0872-PK
OPINION AND
ORDER

v.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Carl H. Ruth filed this action on May 19, 2016, seeking judicial review of the
Commissioner of Social Security's final decision denying his application for disability insurance
benefits ("DIB") under Title II and supplemental security income ("SSI") under Title XVI of the
Social Security Act (the "Act").

This court has jurisdiction over plaintiff's action pursuant to

42 U.S.C. §§ 405(g) and 1383(c)(3).
Page 1 - OPINION AND ORDER

All parties have consented to a Magistrate Judge in

accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). See ECF No. 9. I have considered
all of the patties' briefing and the relevant evidence in the administrative record. For the reasons
set fot1h below, the Commissioner's final decision is AFFIRMED and this case is DISMISSED.
DISABILITY ANALYSIS FRAMEWORK

To 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)(l)(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. §§ 404.1520(a)(4),
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).
At the first step, an ALJ considers the claimant's work activity, if any. See Bowen, 482
U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 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 also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i),
416.920(b). Otherwise, the evaluation proceeds to the second step.
At the second step, the ALJ considers the medical severity of the claimant's
impairments.

See Bowen, 482 U.S. at 140--41; see also 20 C.F.R. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii).

An impairment is "severe" if it significantly limits the claimant's ability to

perfotm basic work activities and is expected to persist for a period of twelve months or longer.

Page 2 - OPINION AND ORDER

See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to
perfo1m basic work activities is defined as "the abilities and aptitudes necessary to do most
jobs." 20 C.F.R. §§ 404.1522(b), 416.92l(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. §§
404.1520(a)(4)(ii), 404.1520(c), 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. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 15354). "An impairment or combination of impairments can be found 'not severe' 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, 1985 WL 56856).
If the claimant's impairments are severe, the evaluation will proceed to the third step, at

which the ALJ dete1mines 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. §§

404.1520(a)(4)(iii), 404.1520(d), 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.
§§ 404.l 520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).
If the 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.

Page 3 - OPINION AND ORDER

See 20 C.F.R. §§

404.1520(e), 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. §§ 404.1545(a),

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 1996 WL 374184.
At the fomth 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. §§ 404.1520(a)(4)(iv), 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. §§ 404.1520(a)(4)(iv), 404.1520(±), 416.920(a)(4)(iv), 416.920(±). 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.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to determine whether the claimant can perfo1m
any jobs that exist in significant nUlllbers in the national economy. See Bowen, 482 U.S. at 142;

see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 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. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 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

Page 4 - OPINION AND ORDER

meet his burden at the fifth step. See id.; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
416.920(a)(4)(v), 416.920(g).

LEGAL STANDARD
A reviewing coutt 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 suppott 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. 2006)).
The 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 coutt 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 ). Moreover, the court may not rely upon its own independent findings
of fact in determining whether the ALJ's findings are suppotted by substantial evidence of record.

See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 1989) (citing SEC v. Chene1y C01p., 332
U.S. 194, 196 (1947)). 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)).

Ill

Page 5 - OPINION AND ORDER

SUMMARY OF ADMINISTRATIVE RECORD 1

Born in January 1988 in Eureka, California, Ruth was 22 years old on the alleged onset
date of February 28, 2010, and 26 years old at the time of the hearing. Tr. 104-05, 107, 121,
1077. Ruth is a high school graduate and worked pmt-time at a McDonald's and at a floral farm.
On June 5, 2012, Ruth filed Title II and Title XVI applications for disability. Tr. 105-06. He
alleged disability due to:

attention deficit hyperactivity disorder, anger management,

depression, comprehension issues, migraines/blackouts, chemical imbalance, hypoglycemia, and
injury to both shoulders. Tr. 107, 121. After his applications were denied initially and upon
reconsideration, Ruth requested a hearing before an administrative law judge ("ALJ"). Tr. 14,
107-20, 121-34.

I.

Summary of The Medical Record
The earliest medical evidence in the administrative record cited by Ruth transpired nine

years prior to the alleged onset date and consists of a psychological evaluation administered by
school psychologist Jim Bierman, Ph.D., in January 2001. Tr. 420-26 In the Summary and
Recommendations section of the evaluation, Dr. Bierman noted Ruth's "cognitive functioning
[was] in the Borderline range" and that he had "marked difficulty with perceptual organization."
Tr. 425. In regard to his emotional and personality development, Dr. Bierman noted that Ruth
presented as "an oppositional-defiant adolescent," and he "had recently experienced multiple
changes in residence and one brief hospitalization for danger to himself." Tr. 425. Dr. Bierman
1

The following recitation constitutes a summary of the pertinent evidence within the
Administrative Record, and does not reflect any independent finding of fact by the Court.
Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative
record filed herein as Docket No. 18. The record before the Comt constitutes more than 1,100
pages, with some duplicative documents. Where evidence occurs in the record more than once,
the Comt will generally cite to the transcript pages on which that info1mation first appears.
Page 6 - OPINION AND ORDER

recommended "individual psychotherapy usmg behavioral modification geared towards
increasing restraint and self-control .... " Tr. 425. Additionally, Dr. Bierman observed Ruth
presented a "low risk" of danger to himself and others. Tr. 425. Dr. Bierman diagnosed Ruth
with oppositional defiant disorder, posttraumatic stress disorder, physical abuse of a child,
borderline intellectual functioning, aggressive/sadistic and antisocial personality traits with
negativistic features, and cmTent global assessment ("GAF") score of 36, with a high of 50 in the
past year. 2 Tr. 426.
In May 2004, Michael Ramirez Psy.D., administered a psychological evaluation of Ruth.
Tr. 696-704. In the Summary and Recommendations section of the evaluation, Dr. Ramirez
noted Ruth "endorsed high levels of depressive and anxious cognitions as well as antisocial
behavior." Tr. 702. Regarding Ruth's mental status, Dr. Ramirez noted his memory "both
immediate and remote, was intact," his "general fund knowledge seemed appropriate for his
educational background," his "intellect appeared to be average," his "insight and judgement
appeared competent," and his "concentration was within normal limits." Tr. 699. Dr. Ramirez
noted that Ruth "admit[ted] displaying inappropriate social behavior" and "repmt[ed a]

2

While relevant, a "GAF score does not determine disability." Davis v. As/rue, 2012 WL
4005553, at *9 (D. Or. June 12), adopted by 2012 WL 3614310 (D. Or. Aug. 21, 2012) (internal
citation omitted). "A GAF score is a rough estimate of an individual's psychological, social, and
occupational functioning used to reflect the individual's need for treatment." Vargas v. Lambert,
159 F.3d 1161, 1164 n.2 (9th Cir. 1998). According to the Fomth Edition of the Diagnostic and
Statistical Manual of Mental Disorders ("DSM-IV"), "a GAF score between 41 and 50 describes
'serious symptoms' or 'any serious impairment in social, occupational, or school functioning.' A
GAF score between 51 to 60 describes 'moderate symptoms' or any moderate difficulty in social,
occupational, or school functioning." Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014)
(quoting DSM-IV); but see Skelton v. Comm'r of Soc. Sec., 2014 WL 4162536, at *11 (D. Or.
Aug. 18, 2014) (explaining that the fifth and most recent edition of the Diagnostic and Statistical
Manual of Mental Disorders abandoned the GAF scale for several reasons, including "its lack of
conceptual clarity" and "questionable psychometrics in routine practice").
Page 7 · OPINION AND ORDER

willingness to participate in treatment." Tr. 703. Dr. Ramirez diagnosed Ruth with conduct
disorder, cannabis abuse, and mood disorder, and a current GAF score of 50, with a high of 60
in the past year.
In November 2006, Ruth repmted "mental distress" to registered nurse ("RN") J. Spini,
and repo1ted continued difficulty "with interpersonal relationships, irritability/anger, impulse
control, insomnia, concentration/memory, mania, mood [liability], energy level, depression, and
anxiety/fear/panic." Tr. 883. Ruth's Abilify prescription was continued and he was instructed to
follow up in six weeks. Tr. 883.
In January 2007, on a check-box form, a medical provider repo1ted Ruth's thought
contents and processes appeared goal directed, circumstantial, and tangential.3 Tr. 879. His
insight and judgment were assessed as poor. Id. Ruth's cognition was assessed as concrete and
his memory appeared grossly intact. He was diagnosed with GAF score of 46, with a high of 50
in the last year.
In March 2009, P. Anderson administered an assessment of Ruth based on self-reports.
Tr. 1042--47. His mental status revealed he was oriented, his rapport was appropriate, his mood
was initable, his affect was expansive, and his speech was coherent as well as tangential. Tr.
1044. His thought content and processes were appropriate; his insight was assessed as poor and

his judgment as fair. As to Ruth's cognitive functioning, he was easily distracted and suffered
from a concentration problem. Tr. 1045. He was assessed as not posing a risk of harm to
himself or others. Id. Ruth presented "as being guarded concerning personal information, yet
amenable during the interview once he began talking about his interests." Tr. 1046. Anderson
3

The Court is unable to identify the medical provider who completed and signed the
check-box form or the treating relationship he/she had with Ruth.
Page 8 - OPINION AND ORDER

observed that Ruth's "most evident barrier to a functional life is his impulsive anger and rage."

Id. Anderson diagnosed depressive disorder, attention deficit hyperactivity disorder, anxiety
disorder due to a substance, and a GAF score of 41, with a high of 43 in the last year. Tr. 1046.
In April 2009, Ruth reported impulsivity, problems with anger, and compulsive behavior.
Tr. 1025, 1037.
In January 2010, a medical provider rep01ied Ruth's thought contents and processes
appeared appropriate and goal directed. 4 Tr. 976. His insight and judgment were assessed as
fair.

Id.

He was assessed as having no gross cognitive deficits and his memory appeared

grossly intact. Id. He was diagnosed with GAF score of 50, with a high of 55 in the last year.
Tr. 977.
In May 2011, Ruth was referred to Thomas Shields, Ph.D., for a psychodiagnostic
evaluation. Tr. 1082-87. Dr. Shields noted Ruth was "fairly guarded and [had] a negative
attitude during the evaluation." Tr. 1085. Dr. Shields noted an "increase in fidgetiness and
distractibility whenever [he and Ruth] talk[ed] about those topics." Tr. 1085, 1087. Dr. Shields
noted Ruth was "alert but distracted." Tr. 1086. Dr. Shields wrote in his comment section:
It's unclear how severe his attention problem is, however, due to the
impression management observed during this evaluation and
possible suboptimal effort on the digit span task. I did observe a
mildly slowed rate of speech and mildly slowed thought processing
in casual interaction, suggesting an impairment in processing speed.
For this reason, he may very well exhibit mild impairment in
keeping a normal pace at the work place. He was capable of
understanding, remembering, and carrying out simple instrnctions.

***

His social functioning is likely moderately impaired. He was able to
hold a job for three years but lost the job when he hit his boss with a
door. He is fairly arrogant and self-absorbed, claims to enjoy when
4

The Comi notes that it is again unable to identify the medical provider who completed
and signed form; however, it appears from the context the form was signed by medical doctor.
Page 9 - OPINION AND ORDER

others are in pain, and imagines himself to be a superior street
fighter. He is disinterested in formal matiial atis because there are
"rules[.]"

***

His persistence was mildly impaired during this evaluation
predominantly because of motivational factors. Finally, there is
some suspicion that he may not be entirely fotihcoming about his
cannabis use history.
Tr. 1087.

Dr. Shields diagnosed Ruth with attention deficit hyperactivity disorder, mood

disorder, cannabis abuse, and personality disorder. Id.
In September 2012, Dr. Shields conducted an additional psychodiagnostic evaluation of
Ruth. 5 Dr. Shields observed that Ruth appeared "mildly dysphoric"; however, he presented with
an appropriate affect and was fully oriented. Tr. 1078. Ruth's presentation was "consistent with
that of an individual with [attention deficit hyperactivity disorder]." Tr. 1080. Dr. Shields found
it "difficult to discern the nature of [Ruth's] attentional difficulties [due to] his suboptimal effo1i
during the mental status examination and his chronic use of cannabis." Id. Dr. Shields wrote in
his comment section:
[Ruth was] capable of understanding, remembering, and carrying
out sho1i and simple instructions.
His ability to sustain
concentration on tasks over extended periods of time is expected to
be moderately impaired secondary to the combined impact of his
[attention deficit hyperactivity disorder] and his typical state of
cannabis intoxication.

***

His social functioning appears mild-to-moderately impaired based
on his negative attitude, unsophisticated manner of impression
management, probable proclivity toward being manipulative, and
other anti-social traits. Persistence and pace are expected to be
moderate-to-severely impaired secondary to maladaptive
personality features, cannabis dependence, intermittent binge
drinking, [attention deficit hyperactivity disorder], and anger
5

Ruth was originally scheduled to have the evaluation completed in August 2012.
However, the evaluation was rescheduled to September because Ruth arrived at the August
appointment under the influence of cannabis. Tr. 1076.
Page 10- OPINION AND ORDER

management issues.
Id. Dr. Shields diagnosed Ruth with chronic cannabis dependence, alcohol dependence in early

pa11ial remission, pain disorder associated with both psychological factors and general medical
conditions, and personality disorder with antisocial traits. Id.
In November 2012, police brought Ruth in for a mental health evaluation after he called a
crisis line. Tr. 1118-19. David Procknow, M.D., wrote Ruth "[a]pparently [had] taken a credit
card to his left wrist and was trying to harm himself." Tr. 1119. During his mental health
evaluation, Ruth denied any plan or intent to harm himself and denied that he was a risk of hatm
to others or property. Tr. 1156. Qualified mental health professional ("QMHP"), Lacey Sallotte,
M.S., diagnosed depressive disorder, attention deficit hyperactivity disorder, cannabis
dependence, and a GAF score of 47. 6 Tr. 1158.
In August 2013, Ruth presented with complaints of shoulder, neck, arm, and leg pain as
well as repm1s of numbness in his hands and legs. Tr. 1125.
In February 2014, Dan Gummo, licensed professional counselor ("LPC''), QMHP,
administered a mental health evaluation to Ruth. Tr. 1162-66. Ruth presented with a "history of
placement and mental health difficulty." Tr. 1164. Ruth self-reported that "he has torn shoulders
and 'shattered both of his hands"' and that as a child "he was sttuck on the head multiple times
and may have undiagnosed traumatic brain injury."

Tr. 1162. Ruth repo11ed that he had "hurt

others in the last year ... used a weapon to threaten or in a fight and started physical fights." Tr.
1165.

LPC Gummo diagnosed post-traumatic stress disorder, attention deficit hyperactivity
6

Ruth's briefing mistakenly characterizes Ruth returning to the hospital a second time after
calling the crisis line on December 5, 2012. See Pl.'s Op. Br. at 7. It is clear from the record,
however, that although Dr. Procknow signed the treatment notes on December 5, 2012, the events
therein occu1Ted during the November 2012 visit. See Tr. 1117-20.
Page 11 - OPINION AND ORDER

disorder, cannabis abuse, anti-social personality disorder, borderline intellectual functioning, and
a GAF score of 50. Tr. 1165
In July 2014, Bob Yuanwen, M.D., wrote a tlu·ee sentence letter, which read:
Due to Mr Ruth's medical condition, it is medically necessary for
him to use a cane or walker when walking. His condition has also
made him unavailable to work at this time.
Please contact our office if you have any questions or concerns.
Tr. 1183. 7

II.

The Administrative Hearing
On July 15, 2014, the ALJ held a hearing, at which plaintiff testified and was represented

by counsel; a vocational expert ("VE") also testified. Tr. 45-82. The ALJ found that Ruth
"possessed [no] past relevant work experience" and asked the VE to:
assume an individual with the same age, education, and work
experience as [Ruth,] but who is further limited to no more than
frequent overhead reaching and frequent bilateral grasping, gripping,
handling, and fingering. Please also assume that this individual
would be limited to simple, repetitive, routine tasks requiring no
more than occasional interaction with supervisors, coworkers, and
the general public....would [such a person] be capable of
performing any []jobs that exist in significant numbers in the
national and regional economy?
Tr. 75. The VE answered in the affomative and that such an individual would be able to perform
the jobs of store clerk, material handler, and general helper. Tr. 75-76.
On August 25, 2014, the ALJ issued a decision finding Ruth not disabled within the
meaning of the Act. Tr. 20-31. The decision became the final decision of the Commissioner on
7

Plaintiff submitted this letter to the Appeals Council, who subsequently considered it,
making it part of the administrative record this Co mt reviews. See Brewes v. Comm 'r ofSoc. Sec.
Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). Notably, Ruth directs the Court to no other
instances in the administrative record discussing Dr. Yuanwen or his treating relationship with
Ruth.
Page 12 - OPINION AND ORDER

March 15, 2016, when the Appeals Council denied Ruth's subsequent request for review. Tr.
1-4; see, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). Ruth now appeals to this Court for
review of the Commissioner's final decision.
SUMMARY OF ALJ FINDINGS

At step one of the five-step sequential evaluation process, the ALJ found that Ruth had not
engaged in substantial gainful activity at any time during the period since his alleged onset date of
February 28, 2010. Tr. 22.
At step two, the ALJ found that Ruth had the following severe impairments: mild cervical
and lumbar degenerative disc disease; mild to moderate bilateral carpal tunnel symdrome;
attention deficit hyperactivity disorder; antisocial personality disorder; posttraumatic stress
disorder; and borderline intellectual functioning. Tr. 22-23.
At step three, the ALJ found that Ruth's impairments, considered either individually or in
combination, did not meet or equal the requirements of a listed impairment. Tr. 23; 20 C.F.R. §
404, Subpt P, App. 1. Tr. 23.
Because he did not establish disability at step three, the ALJ continued to evaluate how
Ruth's impairments affected his ability to work. The ALJ resolved that Ruth had the residual
functional capacity ("RFC") to perform less than medium work with the following limitations:
[Ruth] is limited to no more than frequent overhead reaching and
frequent bilateral grasping, gripping, handling, fingering and feeling.
[Ruth] is also limited to simple, repetive, routine tasks requiring no
more than occasional interaction with supervisors, co-workers and the
general public.
Tr. 25. At step four, the ALJ found that Ruth had no past relevant work. Tr. 30.
At step five, the ALJ found, in light of Ruth's age, education, intermittent work experience,
and RFC, that there were jobs existing in significant numbers in the national economy that he
Page 13 - OPINION AND ORDER

could perform. Tr. 30.
ANALYSIS

Ruth argues that:

(1) the ALJ erred in not considering consider the full longitudinal

medical record as to his mental impairments; (2) the Appeals Council erred in not incorporating
post-decision medical evidence into the administrative record; and (3) the ALJ erred in failing to
account for deficits in concentration, persistence, and pace in the RFC posed to the VE.
I. The ALJ's Consideration of the Medical Evidence

Ruth asserts that the ALJ failed to consider the longitudinal medical record of his mental
impairments. Pl.'s Op. Br. at 10. Specifically, Ruth argues, this case is analogous to Watkins v.
Commissioner, No. 3:14-cv-01753-HZ, 2016 WL 184425 (D. Or. Jan. 15, 2016). In Watkins, the

ALJ assigned "little weight" to a psychological evaluation conducted by a psychiatrist and a
teacher's rep01i, both of which predated the claimant's alleged onset date. Id. at *3. The ALJ
justified his rejection on the basis that the reports did "not reflect [the claimant's] functioning level
during the relevant period." Id. Judge Hernandez disagreed and rejected that rationale, citing the
obligation imposed by the regulations "to consider multiple issues and all relevant evidence to
obtain a longitudinal picture of [a claimant's] overall degree of functional limitation[s]" when
assessing mental impairments. Id. (citing 20 C.F.R. § 404.1520a)(c)(l)). Ruth argues the ALJ
here effectively rejected evidence of his mental impairments by ignoring records from prior to the
onset date.
The Commissioner responds correctly noting that an ALJ "need not discuss all evidence
presented" to her; rather, an ALJ need only discuss why "significant probative evidence has been
rejected." Def.'s Br. at 2 (citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th
Cir. 1984)) (emphasis added); see also Hassen v. Astrue, No. 3:08-cv-0742-PK, 2009 WL
Page 14 - OPINION AND ORDER

9081690, at *2 (D. Or. Dec. 11, 2009) ("ALJs are not required to discuss all the evidence
presented.") (citation omitted). The Commissioner argues Watkins is distinguishable because the
ALJ's error in that case arose when the ALJ explicitly "rejected evidence from before [Watkins']
alleged onset of disability and provided insufficient reasons for doing so," and here the ALJ did
not reject any similar evidence. Def.'s Br. at 3.
The Commissioner is conect. The regulations require that an ALJ "assess [a claimant's]
residual functional capacity based on all of the relevant medical evidence" in the record. 20
C.F.R. §§ 404.1545(a)(3), 416.945(a)(3).

Here, the ALJ crafted his RFC "[a]fter careful[ly]

consider[ing] the entire record" before him. Reviewing courts presume that ALJs "know the law
and apply it in making their decisions." Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068,
1072 n.3 (9th Cir. 2010). The Comt declines Ruth's invitation to infer the ALJ wholly ignored
evidence merely because he did not discuss it-much of it significantly pre-dating the alleged
onset date. The ALJ's weighing of the medical evidence is suppo1ted by substantial evidence. 8
II. New Evidence Submitted to the Appeals Council

Plaintiff argues the Comt should review additional medical evidence submitted to, but not
formally considered by the Appeals Council. Pl. 's Op. Br. at 13-16. The additional evidence
consists of a psychological evaluation administered by Katherine Greene Psy.D., in November

8

Even if the Court were to find the ALJ erred in this respect, any error was harmless
because the evidence that Ruth directs the Comt to, not only predates the alleged onset date, but its
contents consists of much the same evidence discussed in the medical evidence the ALJ relied on
heavily in crafting Ruth's RFC. See, e.g., Tr. 1076 (2012 evaluation repo1ting a "history of mental
health counseling for anger management issues during adolescence"); Tr. 1077 (2012 evaluation
reporting abusive childhood); Tr. 1083 (2011 evaluation discussing admission to psychiatric
hospital as a young adolescent).
Page 15 - OPINION AND ORDER

2014. Id., Ex. A-1-7. The Appeals Council reviewed the new submission, but elected not to

consider the evidence; thus, the evaluation was not included in the Administrative Record:
We also looked at the Intellectual and Learning Disability
Evaluation from Katherine Greene, Psy.D.

***
The Administrative Law Judge decided your case through August
25, 2014. This new information is about a later time. Therefore it
does not affect the decision about whether you were disabled
beginning on or before August 25, 2014.
Tr. 2 (emphasis added).
Ruth characterizes the Appeals Council's "look[ing] at" the new evidence as "finding," and
argues that "Dr. Greene's evaluation relates to the time period in question." Pl.'s Op. Br. at 13.
This Court lacks jurisdiction to review decisions of the Appeals Council. Brewes v. Comm'r of

Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) ("We have held that we do not have
jurisdiction to review a decision of the Appeals Council denying a request for review of an ALJ's
decision, because the Appeals Council decision is a non-final agency action.") (citing Taylor v.

Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011)). The Social Security Act
permits judicial review of the agency's "final decision."

42 U.S.C. § 405(g). The Appeals

Council's denial of a request for review is not a final decision; rather, such denial renders the
ALJ's decision as the "final decision" of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107
(2000); 20 C.F.R. §§ 404.981, 416.1481.
Plaintiffs reliance on Brewes is unavailing. In Brewes, "the Appeals Council accepted [the
claimant's] proffered new evidence and made it part of the record .... " Brewes, 682 F.3d at 1163.
In doing so, the Appeals Council then considered the new evidence as mandated by the
regulations because it related to the relevant time period and determined the evidence did not
Page 16 - OPINION AND ORDER

provide a basis for changing the ALJ's decision. Id.; see also 20 C.F.R. §§ 404.970(b),
416.1470(b).
Here by contrast, the Appeals Council did not consider Dr. Greene's evaluation. See Tr. 2.
"Consider" is a term of art in the context of the Appeals Council's denial of request for review.

See Linden v. Colvin, No. 3:16-cv-05308-DWC, 2017 WL 275364, at *9 (W.D. Wash. Jan. 20,
2017). The Notice of Appeals Council Action uses the terms consider and look at in distinctly
different ways.

Some new evidence was formally considered.

Tr. 2 (the Appeals Council

explicitly "considered . . . the additional evidence listed on the enclosed Order of Appeals
Council") (emphasis added).

That new evidence was identified and incorporated into the

administrative record. Tr. 5. In contrast, the Council only looked at Dr. Greene's evaluation and
noted that it concerned a later period in time than Ruth's disability application.

Tr. 2. See

Underwood v. Colvin, 2015 WL 5521991, at *4-5 (D. Or. Sept. 10, 2015) (holding that new
evidence that the Appeals Council looked at and then rejected did not become pati of the
administrative record). 9 In doing so, the Appeals Council conducted a threshold evaluation to
determine whether the evidence was relevant, but did not consider the additional evidence on the

9

Other district courts throughout the Ninth Circuit have reached the same conclusion
regarding evidence submitted to the Appeals Council but not explicitly considered or made part of
the record. See, e.g., Neuhauser v. Colvin, 2015 WL 5081132, at *3 (W.D. Wash. Aug. 27, 2015)
("In contrast to Brewes, the Appeals Council in this case did not accept [the claimant's] proffered
new evidence and make it pati of the administrative record. Although the Appeals Council looked
at [the evidence], the Appeals Council did not consider the evidence .... "); Stephenson v. Colvin,
2014 WL 4162380, at *10-11 (C.D. Cal. Aug. 20, 2014) (holding that new evidence did not
become part of the administrative record when the Appeals Council "looked at" the evidence but
then rejected the evidence because the Appeals Council "reasonably concluded that such evidence
'is about a later time"'); Winland v. Colvin, 2014 WL 4187212, at *2 (W.D. Wash. July 25, 2014)
("Although the Appeals Council looked at this new evidence, it did not consider [the
evidence] .... For this reason, [the evidence] was not made part of the administrative record,
which this Couti must consider in determining whether or not the Commissioner's decision is
supported by substantial evidence.").
Page 17 - OPINION AND ORDER

merits. Thus, the new evidence submitted to the Appeals Council that was only looked at was not
incorporated into the record because it did not relate to Ruth's disability claim and, therefore, is
not subject to review by this Coutt.

10

See 20 C.F.R. §§ 404.970(b), 416.1470(b) ("If new material

evidence is submitted, the Appeals Council shall consider the additional evidence only where it

relates to the period on or before the date of the administrative law judge hearing decision.")
(Emphasis added.)
Plaintiffs reliance on Taylor v. Comm'r is similarly misplaced. 659 F.3d 1228 (9th Cir.
2011). In Taylor, the Appeals council failed to acknowledge-at all-new evidence submitted to
the Appeals Council in support of the claimant's request for review and the evidence was
inadvertently included in the administrative record. Id. at 1232-33. Ruth attempts to analogize

Taylor to this case and states that, like the claimant in Taylor, he is "not asking the Court that '[his]
request for review' by the Appeals Council be reversed. Rather, Ruth 'asks [the Court] to review
the evidence submitted to the Appeals council [because] that evidence was improperly rejected by

10

Ruth's contention that not including Dr. Greene's report in the administrative record
violated 42 U.S.C. §405(g) fails because the Appeals Council did not consider the evidence. See
Brewes, 682 F.3d at 1162. Ruth's argument that "[n]owhere in the statute or regulations does the
law give the Appeals Council permission to refuse evidence which is properly submitted to it"
lacks merit. The plain language of the 20 C.F.R. §§ 404.970(b), 416.1470(b) limits the Appeals
Council to accepting evidence "only where it relates to the period on or before the date of the
administrative law judge hearing decision." Ruth's argument that "the Appeals Council [use] of
simplistic date-stamp-of-the-document formula to determine Dr. Greene's evaluation did not
'affect the decision about whether [Ruth] was disabled beginning on or before" the ALJ's decision
is also unavailing. The primary guidance provided by 20 C.F.R. §§ 404.970(b) and 416.1470(b)
directs the Appeals Council to only consider the evidence "relat[ing] to the time period" at issue.
The fact that the Notice of Appeals Council Action included dates of records submitted does not
constitute error. Tr. 2. Finally, the Court notes that the Commissioner amended 20 C.F.R. §§
404.970(b), 416.1470(b) in Janua1y 2017; however, the language quoted herein includes the
language in place at the time of Ruth's requested judicial review.

Page 18 - OPINION AND ORDER

the Appeals Council."' Pl.'s Op. Br. at 14 (quoting Taylor, 659 F.3d at 1231-32) (some bracketing
in original).
Ruth misreads Taylor. In asking the Court to find the Appeals Council improperly rejected
Dr. Greene's psychological evaluation, Ruth is effectively asking the Comt to modify the Appeals
Council's decision to look at rather than consider the report. Again, the Appeals Council need
only consider evidence where it relates to the period of alleged disability.
404.970(b), 416.1470(b).

20 C.F.R. §§

Thus, in Taylor, it was the Appeals Council's total failure to

acknowledge the new evidence in accordance with the relevant regulations-i. e., neglecting to
either look at or consider the new evidence-that made remanding appropriate "so that the ALJ
[could] reconsider its decision in light of the additional evidence." Taylor, 659 F.3d at 1233.
Ruth's inclusion in his reply brief of a 37 page appellate brief written by his attorney in
another case, and his reliance on a non-binding, non-precedential Ninth Circuit memorandum
disposition resulting from that appeal, Warzecha v. Berryhill, 692 F.App'x 859 (9th Cir. 2017), is
unpersuasive. Indeed, the Warzecha Comt-in affirming the district comt's opinion, declining to
review post-hearing evidence not considered by the Appeals Council-made clear that where
"evidence [does] not relate to the period on or before the ALJ's decision, the Appeals Council [is]
not required to consider it." Id. at *860 (citing Brewes, 682 F.3d at 1162).
Ruth's argument that the Appeals Council's failure to include Dr. Greene's report violated
the Commissioner's Hearings and Appeals Litigation Manual ("HALLEX") lacks merit.
"HALLEX ... does not "can'Y the force of law and [is] not binding upon the agency. Parra v.
Astrue, 481 F.3d 742, 749 (9th Cir. 2007). "Therefore, we do not 'review allegations of non-

compliance with [its] provisions."' Roberts v. Comm'r of the Soc. Sec. Admin., 644 F.3d 931, 933
(9th Cir. 2011) (internal citation omitted).
Page 19 - OPINION AND ORDER

Ruth's reliance on Ramirez v. Shalala, in arguing for a Sentence Four remand rather than
Sentence Six, also fails. 8 F.3d 1449 (9th Cir. 1993). In Ramirez, the Appeals Council considered
"the case on the merits; examining the entire record, including the additional material" and
concluded the ALJ's decision was "proper and that the additional material failed to provide a basis
for changing the hearing decision." Id. at 1452 (quotation marks omitted). In Ramirez, however,
the Commissioner did not contest the Appeals Council's review of the additional evidence; nor did
the Commissioner contest the Ninth Circuit examining the additional material on appeal. Id. In
contrast here, the Commissioner has made no such concession. In other words, where there is no
dispute about whether the evidence should have been considered by the Appeals Council, only
then may a district court review the new evidence not made part of the administrative record. Cf
Will v. Colvin, No. 3:14-cv-0754-JE, 2016 WL 3450842, at *9 (D. Or. May 18, 2016), report and
recommendation adopted, No. 3:14-cv-0754-JE, 2016 WL 3457017 (D. Or. June 20, 2016); see
also Brewes, 682 F.3d at 1162.
Finally, Ruth's additional argument also lacks merit. The appropriate method for this
Court to review evidence submitted to-but not "considered" by-the Appeals Council is through
Sentence Six of 42 U.S.C. § 405(g). District Comis within the Ninth Circuit use Sentence Six
remands "as the proper vehicle for addressing an Appeals Council's improper belief that a medical
opinion concerned a time before the ALJ's decision." Knipe v. Colvin, 2015 WL 9480026, at *6
n.7 (D. Or. Dec. 29, 2015); see also Rocha v. Astrue, 2012 WL 748260, at *4 (D. Ariz. Mar. 7,
2012) ("The Appeals Council stated that they looked at the [new evidence] . . . . The Government
is correct, that the Appeals Council did not 'consider' this evidence. Accordingly, this Court
considers this evidence under the lens of 42 U.S.C. § 405(g), sentence six."). Under Sentence Six,
a court may remand a case "upon a showing that there is new evidence which is material and that
Page 20 - OPINION AND ORDER

there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding." 11 42 U.S.C. § 405(g); See Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Here,
however, Ruth did not request relief under Sentence Six. Indeed, Ruth specifically argued that
sentence six remand would be inappropriate here.
In sum, the Appeals Council properly evaluated the new post-decision evidence it
considered and appropriately incorporated into the administrative record the relevant evidence that
related to Ruth's disability claim and properly excluded evidence that did not relate to the period
on or before the ALJ's decision. See Brewes, 682 F.3d at 1163; see also 20 C.F.R. §§ 404.970(b),
416.1470(b).
III. Incorporating the Medical Opinion Evidence into the RFC

Ruth asserts the ALJ e11'ed by not accounting for Dr. Shield's finding of "moderate-tosevere" limitations in persistence and pace directly in his RFC. The Commissioner cotTectly notes
that the "ALJ is responsible for translating and incorporating clinical findings into a succinct
RFC." Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015).
Here, Dr. Shields made the following findings regarding Ruth's limitations regarding
persistence and pace:
Persistence and pace are expected to be moderately-to severely
impaired secondary to maladaptive personality features, cannabis
dependence, intermittent binge drinking, ADHD, and anger
management issues.
ll To the extent Ruth argues the evidence was relevant to the time period in question, that
argument would have been appropriate under a Sentence Six remand. However, even assuming
arguendo that the new evidence met the requisite standards, Ruth put f01th no justifications
demonstrating good cause for his delay in producing the evidence and failed to show that he could
not have obtained the information earlier. See Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)
(finding no "good cause" where claimant submitted medical report prepared after hearing, but
gave no reason for not soliciting the information sooner).

Page 21 - OPINION AND ORDER

Tr. 1080. The Commissioner argues that the ALJ adequately translated those findings into an
RFC that limited Ruth to "simple tasks that were also repetitive and routine." Def.'s Br. at 9.
Although not argued by Ruth, whether language in an RFC limiting a claimant to simple,
repetitive, or routine tasks adequately addresses a medical finding of deficits in concentration,
persistence, and pace is a nuanced analysis in the Ninth Circuit. Compare Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) with Brink v. Comm'r of the Soc. Sec. Admin., 343

F.App'x 211, 212 (9th Cir. 2009) (mem.) and Lubin v. Comm'r ofSoc. Sec., 507 F.App'x 709, 712
(9th Cir. 2013) (mem.). 12
In Stubbs-Danielson, the claimant's physician identified her as having "slow pace, both in
thinking [and] actions"; however, the physician also opined she was still able to "carry-out simple
tasks."

539 F.3d at 1173.

The ALJ "translated" the physician's conclusions regarding the

claimant's pace and mental limitations into her RFC by limiting her to "simple tasks." Id at 1174.
The comi noted that in "translating" the physician's conclusion, the ALJ relied on "the only
concrete restriction" available to the him: the limitation to "simple tasks." Id. The court then held
the ALJ's assessment as to the claimant's concentration, persistence, and pace was adequately
incorporated into her RFC because the "assessment [was] consistent with restrictions identified in
the medical testimony." Id.
In Brink, the ALJ accepted that the claimant had moderate restrictions as to concentration,
persistence, and pace, but did not include those specific limitations in her hypothetical to the VE.
343 F.App'x at 212. Instead, the ALJ's hypothetical referenced only a restriction to "simple,
12

Although Brink and Lubin are unpublished decisions by the Ninth Circuit, and are not
binding, they may be indicative of how the court would rule in a published opinion. Saucedo v.
Colvin, No. 6:12-cv-02289-AC, 2014 WL4631225, at *17 (D. Or. Sept. 15, 2014).
Page 22 - OPINION AND ORDER

repetitive work." Id. The court found this restriction did not adequately capture the claimant's
limitations because the "repetitive, assembly-line work" addressed by the VE still might require
"extensive focus and speed." Id The comt distinguished Stubbs-Danielson, noting in StubbsDanielson the medical testimony had not established specific restrictions as to concentration and

persistence. Id. In Brink, moreover, when the VE was pressed as to whether a claimant with
"attention and concentration deficits would be able to perform [the repetitive assembly line work
the VE previously described] the vocational expert responded in the negative." Id.
The facts of this case are more analogous to those of Stubbs-Danielson. Similar to StubbsDanielson, the medical opinion relied upon by the ALJ here indicated that Ruth retained the

ability to understand, remember, and carry out "short simple instructions." Tr. 1080. The ALJ
"translated" that conclusion into Ruth's RFC in the form of "simple, repetitive, [and] routine
tasks." In doing so, the ALJ relied upon the only concrete limitation available to him: Ruth's
limitation to understand, remember, and carry out "short simple instructions."

Moreover, in

contrast to Brink, in response to a question from Ruth's attorney about whether the jobs described
by the VE required "a level of persistence and pace that [the VE] could quantify" the VE testified:
"No ... these jobs do not require what we might call a production pace." Tr. 80.
Ruth directs the Court to Marsh v. Colvin, and argues this case must be remanded. 792
F.3d 1170, 1173 (9th Cir. 2015). Marsh is inapposite. In Marsh, the Ninth Circuit found an ALJ's
total omission of any discussion of the claimant's treating physician in her opinion was harmful

eirnr.

Rather, here, the ALJ's decision dedicated four separate paragraphs to discussing Dr.

Shields's diagnosis and evaluations. The ALJ then translated the limitations outlined therein into
Ruth's RFC. See Rounds, 807 F.3d at I 006.

Page 23 - OPINION AND ORDER

Ruth's reliance on Widmark v. Barnhart fails for the same reason. 454 F.3d 1063 (9th Cir.
2006).

In Widmark, the ALJ erroneously rejected an examining physician's opinion that the

claimant had limitations in his ability to do fine manipulation because of a thumb injury. Id. at
1066-67. The rejection of the physician's opinion in Widmark was explicit and unequivocal.
Whereas here, the ALJ discussed Dr. Shields's opinion at length; and the ALJ appeared to give the
opinion substantial weight, translating the limitations outlined therein into Ruth's RFC.

See

Rounds, 807 F.3d at 1006. 13

Finally, Ruth does not set forth any argument regarding what further RFC restrictions are
allegedly necessary to account for this impairment. See Pl.'s Op. Br. at 19-20. In any event, the
Court finds that the ALJ reasonably translated Dr. Shields concrete limitation into Ruth's RFC
appropriately accounting for deficits in concentration, persistence, and pace. Stubbs-Danielson,
539 F.3d 1174; see also Davis v. Colvin, No. 3:13-cv-00443-PK, 2014 WL 2611346, at *10 (D.
Or. June 11, 2014) (upholding step-five finding where ALJ translated claimant's "limitation in
concentration, persistence, and pace into the only concrete restriction ... outlined in the accepted
medical evidence). The ALJ's RFC and step-five finding are affirmed.

Ill
Ill
Ill
Ill
Ill
13

Ruth's citation to Stout v. Commissioner is similarly misplaced. Pl.'s Op. Br. at 20
(citing Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006)). In Stout, the
Ninth Circuit found harmful an ALJ's failure to discuss uncontradicted lay witness testimony.
Stout, 454 F.3d at 1056. Again, here, the ALJ discusses at length Dr. Shields's medical findings.
Tr. 27.
Page 24 - OPINION AND ORDER

CONCLUSION

For the reasons set fmih above, the Commissioner's decision denying Ruth's application
for DIB and SSI is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.

Dated this 261h day of October, 2017.

onorable Paul Papa
United States Magistrate Judge

Page 25 - OPINION AND ORDER