Shattuck v. Commissioner Social Security Administration

Filing 15

Opinion and Order: The decision of the Commissioner is affirmed and this case is dismissed. Final Judgment shall be entered accordingly. Signed on 11/15/2017 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JEREMIAH SHATTUCK,
Plaintiff,

Civ. No. 1:16-cv-01654-MC

v.

OPINION & ORDER

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________________
McSHANE, District Judge:
Plaintiff Jeremiah Shattuck seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying disability and disability insurance
benefits pursuant to Title II of the Social Security Act. For the reasons set forth below, the
decision of the Commissioner is AFFIRMED and this case is DISMISSED.
BACKGROUND
Plaintiff filed a Title II application for a period of disability and disability insurance
benefits on June 25, 2014. Tr. 20. Plaintiff alleged disability beginning March 31, 2011. Id.
His application was denied. Id. Plaintiff appeared before an Administrative Law Judge (“ALJ”)
at a hearing held November 4, 2015. Id. On December 11, 2015, the ALJ issued a decision
finding Plaintiff not disabled. Tr. 35. The Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner. Tr. 4. This appeal followed.

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DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r, 648 F.3d 721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the impairment meet or
equal one of a list of specific impairments described in the regulations? (4) Is the
claimant able to perform any work that he or she has done in the past? and (5) Are
there significant numbers of jobs in the national economy that the claimant can
perform?
Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d
at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work which exists in the national
economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the
claimant is not disabled. Bustamante, 262 F.3d at 953-54.

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THE ALJ’S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since the alleged onset date of March 31, 2011. Tr.
22. The ALJ determined that Plaintiff had the following severe impairment: dermatitis/eczema
(unknown origin, recurring). Tr. 23. The ALJ determined that Plaintiff’s severe impairment did
not meet or equal a listed impairment. Id.
The ALJ determined that Plaintiff had the RFC to perform medium work with the
following restrictions: he is limited to frequent pushing/pulling with the hands bilaterally;
frequent handling bilaterally; only occasional fingering/feeling bilaterally; only occasional
exposure to extreme cold, extreme heat, humidity, or wetness. Tr. 24. In formulating Plaintiff’s
RFC, the ALJ found Plaintiff less than fully credible. Tr. 26-32. Plaintiff has not challenged the
ALJ’s credibility determination.
The ALJ found that Plaintiff was able to perform his past relevant work as a salesperson.
Tr. 33. In the alternative, the ALJ found that Plaintiff could perform work as a grocery bagger
and a general store laborer. Tr. 35. Accordingly, the ALJ determined that Plaintiff was not
disabled. Id.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence “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) (citation and internal
quotation marks omitted). In reviewing the Commissioner’s alleged errors, this court must

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weigh “both the evidence that supports and detracts from the [Commissioner’s] conclusion.”
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence
are insignificant if the Commissioner’s interpretation is rational. Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005).
When the evidence before the ALJ is subject to more than one rational interpretation, we
must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53
F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the
Commissioner’s decision on a ground that the agency did not invoke in making its decision.
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ’s
decision on account of an error that is harmless. Id. at 1055–56. “[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
Plaintiff alleges the ALJ erred by (1) failing to find any severe mental impairments at
step two of the analysis; (2) failing to discuss the Veterans Administration (“VA”) disability
rating; and (3) improperly weighing the medical opinion evidence.
I.

Step Two

Plaintiff asserts the ALJ erred by finding Plaintiff’s mental impairments non-severe at
step two of the sequential analysis. At step two, the ALJ must determine if an impairment is
“severe.” 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is not severe if the
evidence establishes only a slight abnormality that has no more than a minimal effect on an
individual’s ability to do work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

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Step two is merely a threshold determination to screen out weak claims. Bowen v.
Yuckert, 482 U.S. 137, 146-47 (1987). The Ninth Circuit has recently clarified that:
[Step two] is not meant to identify the impairments that should be taken into
account when determining the RFC. In fact, in assessing RFC, the adjudicator
must consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not “severe.” The RFC therefore should be
exactly the same regardless of whether certain impairments are considered
“severe” or not.
Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (internal quotation marks, citations
and alterations omitted, emphasis in original).
In Buck, the Ninth Circuit noted that because step two had been resolved in the claimant’s
favor he “could not possibly have been prejudiced,” and “any error is therefore harmless and
cannot be the basis for a remand.” Id. at 1049.
In this case, as in Buck, the ALJ resolved step two in Plaintiff’s favor. Nor did the ALJ
ignore Plaintiff’s alleged mental limitations in formulating the RFC. On the contrary, the ALJ
devoted considerable time and attention to discussing, and ultimately discounting, Plaintiff’s
alleged mental limitations when formulating the RFC. Tr. 28-33. Accordingly, the Court
determines that even if the ALJ erred by finding Plaintiff’s mental impairments to be non-severe
at step two of the analysis, that error was harmless.
II.

Medical Opinion Evidence

Plaintiff contends the ALJ erred by rejecting the medical opinions of treating
psychologist Gary Longwith, Psy D., treating physician Jared Greenberg, M.D., examining
psychologist Amber Ruddock, Ph.D, and non-examining psychiatrist F.L. Williams, M.D.
The ALJ is responsible for resolving conflicts in the medical record. Carmickle v.
Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). “As a general rule, more weight should be given
to the opinion of a treating source than to the opinion of doctors who do not treat the claimant[.]”

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Turner v. Comm’r, 613 F.3d 1217, 1222 (9th Cir. 2010) (internal quotation marks and citation
omitted). An ALJ may reject the uncontradicted medical opinion of a treating or examining
physician only for “clear and convincing” reasons supported by substantial evidence in the
record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject the
contradicted opinion of a treating or examining doctor by providing “specific and legitimate
reasons that are supported by substantial evidence.” Id. Specific, legitimate reasons for rejecting
a physician’s opinion may include its reliance on a claimant’s discredited subjective complaints,
inconsistency with medical records, inconsistency with a claimant’s testimony, inconsistency
with a claimant’s daily activities, or internal inconsistency. Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43; Morgan v. Comm’r, 169 F.3d 595,
601-03 (9th Cir. 1999).
When a non-examining physician’s opinion contradicts an examining physician’s opinion
and the ALJ gives greater weight to the non-examining physician’s opinion, the ALJ must
articulate her reasons for doing so with specific and legitimate reasons supported by substantial
evidence. See, e.g., Nguyen v. Colvin, 95 F. Supp.3d 1286, 1293 (D. Or. 2015) (citing Ryan v.
Comm’r, 528 F.3d 1194, 1198 (9th Cir. 2008)).
A. Dr. Longwith
Dr. Longwith was Plaintiff’s treating psychologist at the VA. On August 27, 2014, Dr.
Longwith diagnosed Plaintiff with Post-traumatic Stress Disorder (“PTSD”) and Obsessive
Compulsive Disorder (“OCD”), which Dr. Longwith believed to be “moderate to severe.” Tr.
295-96, 300. Dr. Longwith opined that Plaintiff “cannot maintain interpersonal relationships,”
was socially isolated, and prefers to remain alone. Tr. 297. Dr. Longwith believed that Plaintiff
had “minimal control over inhibitory processes,” and could not maintain employment “due to

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poor judgment, medical issues (outbreaks), anger, trust issues, OCD issues, delusional ideation
that he, they, loved ones will be killed, [and] inability to adapt.” Id. Dr. Longwith also observed
that:
The patient’s obsessions include use of rocks, crystals, stones to protect him from
radiation and certain frequencies; talks to the dead (don’t talk back) but
occasionally hears a voice that scares him; uses planetary alignment to make
decisions; will only touch or drink water from a spring and will drive all day to
obtain the water; places bowels [sic] around the home/him with spring water to
cleanse himself (hands); keeps gallons of water with him in car, tents, knives etc.
in case of catastrophe.
Tr. 299.
The ALJ gave little weight to the opinion of Dr. Longwith. Tr. 32. The ALJ found that
the symptoms identified by Dr. Longwith were not consistent with those reported in the
treatment records.

Id.

Dr. Longwith noted hallucinations, Tr. 299, but Plaintiff denied

hallucinations in his examination by Dr. Ruddock. Tr. 436. On March 14, 2014, Plaintiff was
seen by Brian McPhee, M.D., a VA psychiatrist. Plaintiff reported that he “feels like he is doing
well,” and had a “good experience” on a recent visit to Peru. Tr. 406. Dr. McPhee found
Plaintiff to be calm and pleasant, with no psychosis, no paranoia, and no depression. Id. Dr.
McPhee also found Plaintiff to be alert, attentive, cooperative, and reasonable, with normal,
coherent thoughts, fair insight, intact memory, good judgment, and no visual or auditory
hallucinations. Tr. 407. On June 13, 2014, Plaintiff was seen again by Dr. McPhee. Tr. 381-84.
Dr. McPhee found Plaintiff to be calm, pleasant, alert, attentive, cooperative, and reasonable. Tr.
382-83. Dr. McPhee again noted no hallucinations, obsessions, or delusions, as well as normal,
coherent thought processes, good insight, intact memory, and good judgment. Tr. 383.
The ALJ also found that the degree of limitation assessed by Dr. Longwith “is simply not
consistent with the claimant’s minimal treatment and contemporaneously demonstrated ability to

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operate a catering business and engage in wide variety of other daily and social activities.” Tr.
32. The ALJ noted Plaintiff’s domestic and international travel, participation in festivals, hiking,
shopping, attending farmers markets, attending church, traveling to hot springs, shopping,
volunteer work, and ability to manage his own finances. Tr. 28, 30, 240-41. As previously
noted, conflict with the claimant’s daily activities is a valid reason for rejecting a medical
opinion. Tommasetti, 533 F.3d at 1041; Andrews, 53 F.3d at 1042-43; Morgan, 169 F.3d at 60103.
On this record, the ALJ gave sufficient specific, legitimate reasons to discount the
opinion of Dr. Longwith.
B. Dr. Greenberg
On November 5, 2014, after treating Plaintiff for three months, Dr. Greenberg filled out a
Mental Disorder Questionnaire Form. Tr. 429-433. Dr. Greenberg observed that Plaintiff was
generally calm, cooperative, and friendly, but that he presents with significant anxiety and
dysphoria, as well as restless fidgeting. Tr. 431. Dr. Greenberg believed that Plaintiff was well
oriented, with grossly intact immediate and long-term recall and attention, but “mildly impaired”
short-term memory and impaired judgment. Id. Dr. Greenberg observed that plaintiff was
suspicious of doctors, the government, and people in general to a point that vergers on paranoia,
and that he espoused “unconventional or idiosyncratic beliefs,” including belief in the healing or
protective power of crystals and energy manipulation. Tr. 431-32.
Dr. Greenberg diagnosed PTSD, Major Depressive Disorder, and Marijuana Use
Disorder in early full remission. Tr. 433. Dr. Greenberg believed that Plaintiff’s condition had
demonstrated slow improvement, which he expected to continue. Id. In terms of functioning,
Dr. Greenberg opined that Plaintiff’s mental impairments would interfere with Plaintiff’s ability

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to perform “tasks that involve leaving the house, such as shopping and overall self-care due to
anxiety, poor concentration, low motivation, fatigue, and depression.” Tr. 432. Dr. Greenberg
believed that Plaintiff would have “great difficulty with task completion and concentration,” and
that Plaintiff’s mental impairments represented a “significant barrier to employment.” Id.
The ALJ gave little weight to the opinion of Dr. Greenberg. Tr. 32. In particular, the
ALJ noted that Dr. Greenberg’s report was at odds with his own treatment notes. Id. When
Plaintiff established care with Dr. Greenberg, he reported intermittent PTSD symptoms. Tr. 362.
Dr. Greenberg’s treatment notes indicate depression, but noted a full range of affect, linear,
logical thinking, and no paranoia or delusions. Tr. 341-43. In September 2014, Plaintiff denied
being depressed and reported doing “all right,” and participating in yoga and meditation. Tr.
330-32. Dr. Greenberg’s notes indicate Plaintiff’s trips to Oregon, where he participated in food
preparation for a festival, Tr. 341, 358, and Utah, to visit hot springs. Tr. 466. In October 2014,
Plaintiff reported “doing better,” with improved mood and reduced anxiety and stress and a
normal mental exam. Tr. 465-66. In May 2015, Dr. Greenberg noted Plaintiffs repeated and
lengthy trips to South America and reported that Plaintiff was “doing well,” with a “good”
overall mood and a normal mental examination. Tr. 491-92. Although Plaintiff urges a different
interpretation of Dr. Greenberg’s records, the ALJ’s interpretation is reasonable and the Court
will not disturb it.
The ALJ also noted that Dr. Greenberg’s assessment that Plaintiff had removed himself
from almost all relationships and was unable to commit to relationships, jobs, classes, and certain
forms of treatment was inconsistent with the record, including Plaintiff’s own testimony. Tr. 32.
The ALJ noted that Plaintiff was able to “maintain close interpersonal relationships as well as
remain deeply involved in a variety of activities, including self-employment, travel, and

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volunteer work, throughout the period at issue.” Id. A review of Plaintiff’s own testimony at the
hearing confirms the ALJ’s assessment. See Tr. 47 (Plaintiff lives with his fiancée, his sister,
and his sister’s boyfriend); 48-49 (Plaintiff had romantic relationships with two of his VA
caregivers); 50-51 (Plaintiff ran his own catering business); 52-53 (Plaintiff periodically travels
to South America); 66 (Plaintiff stated that he would have continued to work at a grocery store if
he had not been laid off); 74 (Plaintiff spends his time preparing food, doing yoga, and
participating in guided meditation); 74-75 (Plaintiff does volunteer work with other veterans).
As previously noted, inconsistency with the claimant’s own testimony is a specific, legitimate
reason to reject a physician’s opinion. Tommasetti, 533 F.3d at 1041; Andrews, 53 F.3d at 104243; Morgan, 169 F.3d at 601-03.
On this record, the Court concludes that the ALJ gave sufficient specific, legitimate
reasons for discounting the opinion of Dr. Greenberg.
C. Dr. Ruddock
On September 17, 2015, Plaintiff was examined by Dr. Ruddock. Tr. 434-39. Dr.
Ruddock observed that Plaintiff was oriented to person, time, place, and purpose of the
examination. Tr. 436. His speech was normal and his thoughts were organized and linear with
average intellectual functioning and appropriate attention and concentration.

Tr. 436-37.

Plaintiff denied auditory and visual hallucinations and Dr. Ruddock observed no obvious
psychotic indicators at the time of examination. Tr. 436. Dr. Ruddock noted a depressed mood
and flat affect, as well as slightly impaired memory and below average insight and judgment. Tr.
436-37. Based on her examination, Dr. Ruddock diagnosed Plaintiff with PTSD, OCD, and
Major Depressive Disorder. Tr. 439.

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In terms of functional limitations, Dr. Ruddock opined that Plaintiff would have mild
difficulty understanding, remembering, and carrying out short, simplistic instructions; moderate
difficulty understanding, remembering, and carrying out detailed and complex instructions; mild
difficulty in making simplistic work-related decisions without special supervision; mild difficulty
complying with job rules such as safety and attendance; moderate difficulty responding to
changes in a normal workplace setting; and moderate difficulty maintaining persistence and pace
in a normal workplace setting. Tr. 439. Dr. Ruddock found Plaintiff to be socially awkward,
with a history of interpersonal difficulties, and opined that he would have moderate difficulty
interacting appropriately with supervisors, coworkers, and peers on a consistent basis. Id.
The ALJ gave little weight to the opinion of Dr. Ruddock. Tr. 33. The ALJ noted that
Dr. Ruddock’s reported clinical findings were mostly normal. Id. As previously noted, Dr.
Ruddock found Plaintiff to be cooperative, oriented to person, time, place, and purpose of exam,
with normal speech, average intellectual functioning, and organized, linear thoughts. Tr. 510.
Dr. Ruddock found no psychotic indicators and Plaintiff denied hallucinations. Id. The ALJ’s
interpretation of this evidence is rational and the Court will not disturb it.
The ALJ also noted that Dr. Ruddock relied heavily on Plaintiff’s subjective report of
symptoms and limitations, “and seemed to accept as true most, if not all, of what the claimant
reported.” Tr. 33. The ALJ may properly reject an opinion if it is premised on the claimant’s
subjective complaints and the ALJ has already validly discounted the claimant’s testimony. Fair
v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). In this case, the ALJ found Plaintiff not fully
credible and discounted his subjective symptom testimony.

Tr. 28-32.

Plaintiff has not

challenged the ALJ’s credibility determination and so the ALJ’s ruling stands on that issue

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stands. Based on the record, the ALJ reasonably concluded that Dr. Ruddock based her opinion
on Plaintiff’s discredited subjective symptom testimony.
The Court concludes that the ALJ adequately supported his decision to assign little
weight to the opinion of Dr. Ruddock.
D. Dr. Williams
Plaintiff briefly disputes the ALJ’s decision to discount the opinion of non-examining
physician Dr. Williams, but provides little substantive argument on this issue. Dr. Williams
reviewed Plaintiff’s records in November 2014 and concluded that Plaintiff had a severe mental
condition resulting in mild restrictions to his activities of daily living; moderate difficulties in
maintaining social functioning; and moderate difficulties in concentration, persistence, or pace.
Tr. 101. The ALJ assigned little weight to the opinion of Dr. Williams, noting that it was
“devoid of any substantive explanation of the basis for assessing more than mild limitations.”
Tr. 33. This is an appropriate reason to discount a medical opinion. See Molina v. Astrue, 674
F.3d 1104, 1111 (9th Cir. 2012) (an ALJ may permissibly reject a check box opinion that does
not sufficiently explain the reasons for the physician’s conclusions).
The Court concludes that the ALJ gave adequate justification for rejecting the opinion of
Dr. Williams.
III.

VA Disability Rating

Plaintiff asserts the ALJ erred by failing to discuss the April 2015 disability
determination of the VA, which found Plaintiff to be completely disabled.

An ALJ must

ordinarily give great weight to a VA determination of disability. McCartey v. Massanari, 298
F.3d 1072, 1076 (9th Cir. 2002). “While a VA disability decision does not necessarily compel
the SSA to reach an identical conclusion, the ALJ must consider the VA’s findings in reaching

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his decision because of the similarities between the VA disability program and the Social
Security disability program.” Hiler v. Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012) (internal
quotation marks, alterations, and citation omitted).

However, because the VA criteria for

determining disability are not identical to those of the SSA, “the ALJ may give less weight to a
VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported
by the record.” Id. (internal quotation marks and citation omitted, emphasis in original).
In this case, the VA found that Plaintiff was 100% disabled by “post-traumatic stress
disorder with obsessive compulsive disorder,” 60% disabled by “dermatitis, including
physiologic erythema of face, eczema of hands and ankles, chest and back,” and 10% disabled by
bilateral tinnitus, for a combined rating of 100% disabled. Tr. 517. Plaintiff asserts that the ALJ
erred by referencing an earlier VA determination finding Plaintiff partially disabled, but ignoring
the later determination finding him completely disabled. This contention is not supported by the
ALJ’s opinion, which cites directly to the later VA determination. Tr. 33 (citing to exhibit 11F).
Nor did the ALJ fail to discuss his reasons for rejecting the VA’s conclusion regarding
Plaintiff’s disability.
decision.”

Rather, the ALJ referenced “the reasons discussed throughout this

Tr. 33. In doing so, the ALJ incorporated his rejection of the opinions of Dr.

Longwith, Dr. Greenberg, Dr. Williams, and Dr. Ruddock, discussed above, and his
unchallenged negative credibility finding with regard to Plaintiff’s subjective symptom
testimony. On this record, the ALJ gave sufficient, valid reasons for assigning reduced weight to
the VA’s determination of disability.

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CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is
AFFIRMED and this case is DISMISSED. Final judgment shall be entered accordingly.
DATED this 15th day of November, 2017.

s/Michael J. McShane

MICHAEL McSHANE
United States District Judge

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