Magro v. Commissioner of Social Security Administration
Filing
16
OPINION AND ORDER. The Commissioners decision is supported by substantial evidence. Therefore, I AFFIRM the Commissioners decision, and Mr. Magros appeal is DISMISSED. Signed on 7/11/2011 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ROBERT A. MAGRO,
Plaintiff,
No. 3:10-cv-1005-MO
v.
OPINION AND ORDER
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
MOSMAN, J.,
Robert Magro challenges the Commissioner‟s decision denying his claim for Supplemental
Security Income (“SSI”) disability benefits. This Court has jurisdiction under 42 U.S.C. § 405(g).
For the reasons stated below I affirm the Commissioner‟s decision.
PROCEDURAL BACKGROUND
On December 12, 2007, Mr. Magro filed for Disability Insurance Benefits (“DIB”) and SSI
under Titles II and XVI of the Social Security Act. AR 10.1 These applications were denied
initially on April 25, 2008, and upon reconsideration on September 25, 2008. AR 10. An
administrative law judge (“ALJ”) held a hearing on November 25, 2008. Id. At the hearing Mr.
Magro‟s attorney amended the alleged disability onset date to December 1, 2007, which precluded
eligibility for DIB. Id. On March 2, 2010, the ALJ issued his decision denying Mr. Magro‟s
applications. AR 22. The Appeals Council denied review on June 30, 2010, making the ALJ‟s
1
Citations to “AR” refer to indicated pages in the official transcript of the administrative record filed with
the Commissioner‟s Answer on January 25, 2011.
decision the final decision of the Commissioner. AR 1. Mr. Magro timely appealed to this Court on
August 25, 2010.
THE ALJ’S FINDINGS
The ALJ made his decision based upon the five-step sequential process established by the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987); see also 20 C.F.R. §§ 404.1520,
416.920 (establishing the five-step evaluative process for DIB and SSI claims). At Step One the
ALJ found that Mr. Magro had not engaged in substantial gainful activity since the alleged onset
date of December 1, 2007. AR 12. At Step Two the ALJ found that Mr. Magro suffered from
lumbar degenerative disc disease, hepatitis C, an abdominal hernia, residual symptoms of a left
ankle fracture, depression, borderline intellectual functioning, and alcohol dependence in partial
remission. AR 12. Continuing to Step Three, the ALJ found that the combination of impairments
does not meet or equal a disorder listed in the Commissioner‟s regulations. AR 14.
The ALJ next evaluated Mr. Magro‟s residual functioning capacity (“RFC”), finding that
he could perform light work, as defined in 20 C.F.R. 404.1567(b) and 416.967(b), but could use
his left arm only as a guide for lifting; could not use ladders, ropes or scaffolds; could only
occasionally stoop, crawl or climb ramps or stairs; and could only do simple, routine, repetitive
work requiring no interaction with the general public. AR 16. At Step Four the ALJ found that Mr.
Magro had no past relevant work experience. AR 21.
The ALJ continued to Step Five, relying upon testimony from the vocational expert to find
that Mr. Magro could work as a motel cleaner, small products assembler, or a packing line worker,
and that these jobs existed in significant numbers in the national economy. AR 22. Based on the
Step Five finding, the ALJ denied benefits. AR 22.
STANDARD OF REVIEW
I review the Commissioner‟s decision to ensure the Commissioner applied proper legal
standards and that his findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
“„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 support 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 Commissioner‟s decision must be upheld if it is a rational
interpretation of the evidence, even if there are other possible rational interpretations. Magallanes
v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The reviewing court may not substitute its judgment
for that of the Commissioner. Robbins, 466 F.3d at 882. Finally, “the court will not reverse an
ALJ‟s decision for harmless error, which exists when it is clear from the record that the ALJ‟s error
was inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008) (citation omitted).
DISCUSSION
Mr. Magro‟s brief focuses on three issues: (1) Whether the ALJ properly evaluated the
severity of Mr. Magro‟s impairments at Step Two; (2) whether the ALJ properly found Mr. Magro
did not meet the listing for Mental Retardation at Step Three; and (3) whether the ALJ properly
determined Mr. Magro‟s RFC.
I.
Step Two Analysis
Mr. Magro‟s first challenge is that the ALJ failed to consider his chronic pancreatitis,
cirrhosis of the liver, blindness in the right eye, bicep disorder, and distal fracture of the left ankle.2
Any error here was harmless.
Step Two is a “de minimis screening device to dispose of groundless claims.” Smolen v.
Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “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 Yuckert v. Bowen, 841 F.2d 303,
306 (9th Cir. 1988) (adopting SSR 85-28)). Any failure to designate an impairment as “severe” at
Step Two is harmless if the ALJ considered the impairment through the remainder of the analysis.
See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding the ALJ‟s failure to designate the
claimant‟s bursitis as “severe” was harmless error because the ALJ discussed bursitis in Step
Four). I find that the ALJ discussed each of the impairments Mr. Magro would have classified as
“severe” during his analysis.
A.
Pancreatitis
The ALJ discussed chronic pancreatitis, but accepted Mr. Magro‟s statement that “the
pancreatitis doesn‟t bother him constantly, but only if he doesn‟t watch what he eats.” AR 17.
Impairments that can be controlled through diet are not disabling for the purpose of determining
eligibility for SSI benefits. See Warre v. Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th
Cir. 2006) (finding that impairments controllable through medication cannot establish disability).
Therefore, the ALJ did not err in his discussion of pancreatitis.
2
Mr. Magro seems to concede his argument that the ALJ should have declared his hernia severe. Pl.‟s Br.
[12] 10. The ALJ did declare the hernia severe. AR 12.
B.
Cirrhosis of the Liver
Mr. Magro claims the ALJ failed to consider his cirrhosis of the liver. The ALJ discussed
cirrhosis of the liver in conjunction with hepatitis C, a common cause of cirrhosis. AR 13 (“A
review of the medical evidences reflects the claimant has . . . hepatitis C with cirrhosis and
elevated liver function tests.”). Mr. Magro argues that these liver impairments should have been
discussed separately, but does not explain how a separate analysis would affect his RFC. In
addition, the ALJ‟s treatment of the two impairments together is implicitly sanctioned by Mr.
Magro‟s treating physician, Dr. Page, who also discussed his liver conditions as a single
impairment. AR 475. Therefore, the ALJ did not commit reversible error by discussing the two
impairments together.
C.
Blindness
Mr. Magro also claims that the ALJ failed to classify his blindness as severe, but Mr.
Magro never established that he is actually blind. He claimed blindness in his left eye, but when
further questioned admitted that it was merely a “lazy eye.” AR 300–01. He reconfirmed that it
was a “lazy eye,” not blindness, at the ALJ hearing, testifying that, “if I get real tired I see double
vision and stuff like that. My eye will go off to the side.” AR 33.
Two doctors noted Mr. Magro‟s blindness. The first, Psychologist Tracey Hoffman, did
not test or diagnose blindness, merely finding that, “[r]ecords indicate that he is blind in one eye.”
AR 470. The other, Dr. Page, included blindness in a list of other ailments but did not discuss how
blindness might affect his employment. AR 474. This omission is remarkable given that her report
did specifically discuss how his employment could be affected by such details as his grooming.
AR 474. More importantly, the ALJ discounted Dr. Page‟s testimony, and Mr. Magro does not
challenge that credibility determination. AR 20. Because Mr. Magro has not established his
blindness, and has twice contradicted it himself, the ALJ‟s conclusion is supported by substantial
evidence.
D.
Bicep Disorder
Mr. Magro next claims the ALJ should have classified his left bicep disorder as severe, but
the ALJ found that Mr. Magro could only use his left arm “as a guide” for lifting, which is more
limited than the limitations given by his physicians, which merely limited his grip strength: “His
grip strength is reduced on the left compared to his right,” and, “The claimant has decreased
strength involving the left biceps measuring 4/5.” AR 16, 457, 348. Because the ALJ incorporated
the bicep disorder in the RFC, any error caused by omitting it at Step Two was harmless.
E.
Ankle Fracture
Mr. Magro also argues that the ALJ failed to classify his distal ankle fracture as severe.
Pl.‟s Br. [12] 10. This contention is semantic. The ALJ labeled this impairment as “residual
symptoms of a left ankle fracture,” AR 12, rather than a “distal fracture of the left ankle,” as Mr.
Magro would prefer. Pl. Br. [12] 10. However, Mr. Magro seems to have abandoned this argument
in his reply brief, after the Commissioner pointed out that the ALJ‟s terminology is more
beneficial to Mr. Magro because the ALJ can only consider impairments that can “be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Because any
impairment caused by an ankle fracture lasting more than 12 months would properly be called
“residual symptoms,” the ALJ properly classified the ankle fracture. See AR 37 (explaining at the
ALJ hearing that his ankle was fractured for four months).
II.
Step Three Analysis: Mental Retardation
Mr. Magro next argues that the ALJ erred by failing to find he meets the listing
requirement for mental retardation at Step Three. If Mr. Magro meets the listing requirement for
mental retardation, he is per se disabled. 20 C.F.R. § 416.925(a).
To meet the listing for mental retardation Mr. Magro must show that that he suffers from
“significantly subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested . . . before age 22.” 20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.05. There are four
alternative tests that can be used to establish mental retardation. Id. Mr. Magro argues that he
meets the third, which requires a full scale IQ score between 60 and 70, and a physical or other
mental impairment imposing an additional and significant work-related limitation of function. Id.
at § 12.05(C). Because the ALJ‟s decision regarding Mr. Magro‟s IQ is supported by substantial
evidence, I do not address any additional work-related limitations.
A.
IQ Between 60 and 70
The ALJ rejected the tests Mr. Magro relied on to show his low IQ. When Mr. Magro was
14 years old he scored a full-scale 70 on an IQ test, within the required range by a single point. AR
465. However, the ALJ rejected this test because “the test was administered under significantly
less than ideal conditions, including the fact that the claimant complained of an earache that day
and experienced several interruptions during the course of the evaluation.” AR 16; see also 20
C.F.R. Pt. 404, subpt. P, app. 1, § 12.00(D)(6)(a) (requiring examiners to consider “the narrative
report that accompanies the test results” which “comment on whether the IQ scores are considered
valid”).
Mr. Magro concedes that the examiner noted “there were several interruptions during the
course of the evaluation” but explains that the examiner also found that “Robert did not appear to
be highly distracted by these interruptions.” AR 465. While the ALJ found it significant that
“Robert had earlier in the day returned home before reaching school due to an earache,” Mr.
Magro points out that, “He did not complain of any ear discomfort,” during the evaluation. AR
466.
Whether the earache and interruptions might have lowered Mr. Magro‟s score by a single
point, enough to fall outside the listing requirement, is not clear from the record. But that is not the
question I am asked to answer. Instead, I must consider whether the ALJ‟s decision is supported by
enough relevant evidence that a reasonable person might accept it as adequate to support a
conclusion. Lingenfelter, 504 F.3d at 1035. The ALJ‟s decision must be upheld if it is a rational
interpretation of the evidence, even if there are other possible rational interpretations. Magallanes,
881 F.2d at 750. In my limited role, I find that the ALJ‟s decision is a rational interpretation of the
evidence, so I do not remand the case based on this evidence.
Mr. Magro also points to an IQ test taken in April 2008, which showed similar scores. AR
303–305. Even the proctor of the test found the results invalid due to “acute alcohol intoxication.”
AR 305. The ALJ‟s decision to reject that IQ test is supported by substantial evidence because Mr.
Magro was heavily intoxicated while taking it.
III.
Step Five and RFC Analysis
Mr. Magro argues that the ALJ erred by failing to include all of his impairments in the
hypothetical presented to the vocational expert (“VE”). Specifically, Mr. Magro argues that the
ALJ omitted his limitations caused by illiteracy, blindness, his hernia, and his ankle fracture. The
VE found that Mr. Magro could work as a motel cleaner, small parts assembler, or a packing line
worker. AR 45–47.
A.
Illiteracy
The ALJ properly accounted for Mr. Magro‟s illiteracy when questioning the VE. Mr.
Magro points out that small parts assemblers and packing line workers require level-two
reasoning, which requires the ability to carry out detailed but uninvolved written or oral
instructions. Pl.‟s Reply [15] 4. Mr. Magro reads the final “or” as an “and,” interpreting it to mean
that Mr. Magro must be able to carry out written instructions. Because he is illiterate, he cannot do
this.
Mr. Magro‟s argument fails for two reasons. First, the VE clarified that Mr. Magro‟s
interpretation of the Dictionary of Occupational Titles is incorrect by explaining that these jobs
would be available to someone who could not read simple instructions. AR 48 (“Q: If the claimant
can‟t read simple instructions, would that reduce, would these jobs still be available?” “A: Yes.”).
But even accepting Mr. Magro‟s interpretation, Mr. Magro‟s illiteracy focused on his inability to
write; he conceded at the hearing that he could “read a little bit.” AR 40.
Second, Mr. Magro‟s argument only addresses two of the three jobs suggested by the VE:
small parts assembler and packing line worker. He fails to address the third job, motel cleaner,
which does not require level-two reasoning. Instead it requires level-one reasoning, which does not
require literacy. See Dictionary of Occupational Titles, Appx. C (defining level-one reasoning as:
“Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with
standardized situations with occasional or no variables in or from these situations encountered on
the job.”). So any error relating to the other two occupations was harmless.
B.
Blindness
Mr. Magro next argues the ALJ should have included his blindness in the VE‟s
hypothetical, but the ALJ was not required to because as discussed above, Mr. Magro may not
actually be blind. None of Mr. Magro‟s doctors found any work-related limitation caused by his
eye disorder. See AR 349 (“There are no relevant visual . . . limitations.”); AR 470 (noting
blindness without testing or diagnosis, but not finding limitations based on it); AR 474 (noting
blindness, but not finding limitations based on it).
C.
Hernia
Mr. Magro claims that his hernia limited him to sedentary work, rather than the light work
used in the VE hypothetical. This argument is based on an evaluation by Dr. Robinson, which
found that Mr. Magro had a “grapefruit-sized” hernia in his right upper quadrant, AR 346, and
found that he could not stand for more than two hours in an eight-hour shift. AR 348. However, the
VE‟s testimony took into account that Mr. Magro would not be able to stand when recommending
occupations. The VE confirmed that Mr. Magro could work in the stated occupations even if he
was “limited to standing less than two hours in an eight-hour day and can‟t stand for more than 30
minutes at a time.” AR 48.
D.
Ankle Fracture
Finally, Mr. Magro argues that the VE‟s testimony did not consider that he must frequently
elevate his leg to keep down the swelling. However, he testified at the ALJ hearing that he only
elevates his foot in the evenings, AR 40, which the VE found would not preclude him from a day
job. AR 48. Even if elevating his leg more frequently were required, the VE found he could likely
elevate his legs during his breaks. AR 48.
CONCLUSION
The Commissioner‟s decision is supported by substantial evidence. Therefore, I AFFIRM
the Commissioner‟s decision, and Mr. Magro‟s appeal is DISMISSED.
IT IS SO ORDERED.
DATED this
11th
day of July, 2011.
/s/ Michael W. Mosman ___
MICHAEL W. MOSMAN
United States District Court
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