Haataja v. Commissioner Social Security Administration

Filing 19

Opinion. The Commissioner's decision is affirmed and this case is dismissed. See formal order. Signed on 4/3/2014 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON HAATAJA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
Merrill Schneider
Schneider Kerr Law Offices
P.O. Box 14490
Portland, Oregon 97293
Attorney for plaintiff
S. Amanda Marshall
United States Attorney
Adrian L. Brown
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Nancy A. Mishalanie
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for defendant

Page 1

- OPINION AND ORDER

Case No. 3:13-cv-00245-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Plaintiff Jason Haataja brings this action pursuant to the
Social Security Act ("Act") to obtain judicial review of the
Commissioner of Social Security's ("Commissioner") final decision
denying his application for disability insurance benefits
("DIB").

For the reasons set forth below, the Commissioner's

decision is affirmed and this case is dismissed.
PROCEDURAL BACKGROUND
On June 23, 2011, plaintiff protectively applied for DIB,
initially alleging disability as of March 15, 2008; however, he
subsequently amended his alleged onset date to November 1, 2006. 1
Tr. 129, 131, 165.
reconsideration.

His application was denied initially and upon
Tr. 80-84, 86-89.

Plaintiff timely requested a
\

hearing before an administrative law judge ("ALJ").

Tr. 90-92.

On July 12, 2012, an ALJ hearing was held before the Honorable
Rudolph Murgo.

Tr. 35-75.

Plaintiff testified at the hearing,

while represented by counsel, along with vocational expert ("VE")
Nancy Bloom and medical expert ("ME") John Nance, Ph.D.
75.

Tr. 35-

On September 13, 2012, the ALJ issued a decision finding

plaintiff not disabled under the Act.

1

Tr. 20-31.

The Appeals

Plaintiff previously applied for DIB and was denied
benefits on January 5, 2011, at the initial level.
Tr. 165-66.
It is unclear from the record whether plaintiff's prior filing
was based on similar impairments or an overlapping adjudication
period, such that the presumption of continuing non-disability is
relevant.
See Epperson-Nordland v. Colvin, 2013 WL 5774110, *3-4
(D.Or. Oct. 22, 2013).
Page 2

- OPINION AND ORDER

Council denied plaintiff's request for review and plaintiff then
filed a complaint in this Court.

Tr. 1-5.

STATEMENT OF FACTS

Born on February 19, 1982, plaintiff was 24 years old on the
amended alleged onset date of disability and 30 years old at the
time of the ALJ hearing.

Tr. 29, 131.

Plaintiff graduated from

highschool and worked previously as a logger; he also served in
the military.

Tr. 22, 42.

He alleges disability due to a post-

traumatic stress disorder ("PTSD"), traumatic brain injury, back
injury, knee injury, memory problems, and anxiety.

Tr. 169.

STANDARD OF REVIEW

The court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are supported by
substantial evidence in the record.
498, 501 (9th Cir. 1989).
mere scintilla.

Hammock v. Bowen, 879 F.2d

Substantial evidence is "more than a

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quoting Consol.

Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

The court

must weigh "both the evidence that supports and detracts from the
[Commissioner's] conclusions."

Martinez v. Heckler, 807 F.2d

771, 772 (9th Cir. 1986).
The initial burden of proof rests upon the claimant to
establish disability.

Page 3

Howard v. Heckler, 782 F.2d 1484, 1486

- OPINION AND ORDER

(9th Cir. 1986).

To meet this burden, the 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) (1) (A).
The Commissioner has established a five-step sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.

§

Bowen v.

404.1520.

First,

the Commissioner determines whether a claimant is engaged in
"substantial gainful activity."
C.F.R.

§

404.1520(b).

Yuckert, 482 U.S. at 140; 20

If so, the claimant is not disabled.

At step two, the Commissioner determines whether the
claimant has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R.
404.1520 (c).

§

If not, the claimant is not disabled.

At step three, the Commissioner determines whether the
impairment meets or equals "one of a number of listed impairments
that .

are so severe as to preclude substantial gainful

activity."

Yuckert, 482 U.S. at 140-41; 20 C.F.R.

§

404.1520(d).

If so, the claimant is conclusively presumed disabled; if not,
the Commissioner proceeds to step four.
141.

Page 4

- OPINION AND ORDER

Yuckert, 482 U.S. at

At step four, the Commissioner determines whether the
claimant can still perform "past relevant work."
404.1520(e)

& (f).

20 C.F.R. §

If the claimant can work, he is not disabled.

If he cannot perform past relevant work, the burden shifts to the
Commissioner.

At step five, the Commissioner must establish that

the claimant can perform other work that exists in significant
numbers in the national and local economy.
141-42; 20 C.F.R. § 404.1520(g).

Yuckert,

482 U.S. at

If the Commissioner meets this

burden, the claimant is not disabled.

20 C.F.R. § 404.1520(g).

THE ALJ'S FINDINGS
At step one, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since the amended alleged
onset date, giving him the benefit of the doubt regarding work
performed in 2007 and 2008.

Tr. 22.

At step two, the ALJ found

that plaintiff had the following severe impairments: traumatic
brain injury, PTSD, depression, and migraines.

Id.

At step

three, the ALJ determined that plaintiff's impairments did not
meet or equal the requirements of a listed impairment.

Tr. 23.

The ALJ then determined that plaintiff retained the residual
functional capacity ("RFC") to perform the full range of work at
all exertional levels.

Tr. 24.

The ALJ, however, imposed the

following nonexertional limitations: no public contact,
occasional co-worker contact, no teamwork, simple and routine

Page 5

- OPINION AND ORDER

tasks, and the ability to be off-task 30 minutes each day in
addition to normally scheduled breaks.

Id.

At step four, the ALJ found that plaintiff was unable to
perform any past relevant work.

Tr. 29.

At step five, the ALJ

determined that jobs existed in the national and local economy in
significant numbers that plaintiff could perform, such as
industrial cleaner, hand packager, and dishwasher.

Tr. 29-30.

Ultimately, the ALJ concluded that plaintiff was not disabled
under the Act.

Tr. 31.
DISCUSSION

Plaintiff argues the ALJ erred by failing to adequately
consider and reject the Veteran Administration's ("VA")
determination that he is entitled to receive total disability
compensation.

The ALJ "must ordinarily give great weight to a VA

determination of disability," but may give less weight to such a
determination by providing "persuasive, specific, valid reasons
for doing so that are supported by the record."

McCartey v.

Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).

The "acquisition

of new evidence or a properly justified reevaluation of old
evidence constitutes a 'persuasive, specific, and valid reason
. supported by the record'
a VA disability rating."

. for according little weight to

Valentine v. Comm'r Soc. Sec. Admin.,

574 F.3d 685, 694-95 (9th Cir. 2009)
at 1076).

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- OPINION AND ORDER

(quoting McCartney, 298 F.3d

After a deployment ending in 2006, the VA initially assessed
plaintiff with a 60% service-connected disability rating.
358.

Tr.

Around February 2009, plaintiff sought an increase in his

disability benefits.

Tr. 371.

Plaintiff's rating was adjusted

to reflect his current VA determination, 80% overall disability,
broken down into the following categories: migraine headaches 30%; tinnitus - 10%; PTSD - 50%; traumatic brain disease - 40%.
Tr. 296, 400.

Despite plaintiff's 80% disability determination,

he receives benefits at the 100% rate because he is deemed
unemployable by the VA due to his service-connected disabilities.
Tr. 500.
Plaintiff's medical records indicate that he periodically
attended medical consultations at VA medical centers from June
2007 through September 2009.

Tr. 321-23.

Plaintiff's most

recent VA examination concluded that he continued to suffer from
symptoms of PTSD and depression but nonetheless did not "describe
any significant mood difficulties that impact his work
functioning."

Tr. 300.

Since September 2009, plaintiff has

neither engaged in nor requested any medical treatment through
the VA or any other medical facility.

Tr. 322.

In fact,

plaintiff's VA medical providers noted that he "has not responded
to attempted outreach" since 2009.

Tr. 302, 496.

Prior to discussing the VA's disability determination, the
ALJ summarized and assessed the medical opinions of Mark Dillon,

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- OPINION AND ORDER

Ph.D., Douglas Smyth, Ph.D., Ben Kessler, Psy.D., and Dr. Nance.
Tr. 24-29.

Dr. Dillon, on behalf of the VA, assessed plaintiff

in November 2007 and February 2009.

Tr. 297-300, 380-84.

In his

most recent evaluation, Dr. Dillon diagnosed plaintiff with mild
PTSD, which could very well improve, and major depressive
disorder ("MDD"), in partial remission.

Tr. 297-300.

He also

assessed plaintiff with a GAF score of 65, indicating mild
symptoms.

Tr. 299.

The ALJ gave Dr. Dillon's opinion

significant weight because it was consistent with the
longitudinal treatment record. Tr. 27.
In December 2010, Dr. Smyth evaluated plaintiff.
79.

Tr. 272-

He diagnosed plaintiff with PTSD, rule-out undifferentiated

somatoform disorder, status post reported brain injury, and MDD,
in partial remission.

Tr. 278.

Dr. Smyth noted, however, that

there was insufficient evidence of cognitive problems associated
with the reported brain injury.
testing on memory malingering.

Id.
Id.

Dr. Smyth also suggested
The ALJ gave Dr. Smyth's

opinion significant weight because it was based on accepted
measures of cognitive functioning and was consistent with the
medical evidence of record.

Tr. 27.

In October 2011, Dr. Kessler examined plaintiff.
94.

Tr. 489-

He concluded that plaintiff's symptoms were suggestive of

PTSD with depressive features rather than a traumatic brain
injury.

Page 8

Tr. 493-94.

The ALJ afforded Dr. Kessler's opinion

- OPINION AND ORDER

great weight because it was consistent with the other medical
evidence.

Tr. 27-28.

Additional VA test results from a November 2007 physical
examination established that plaintiff's hearing was within
normal limits, despite his diagnosis of tinnitus.

Tr. 474-77.

Furthermore, plaintiff testified at the hearing that he was not
currently taking prescription or non-prescription medication for
his migraines.

Tr. 46; see also Tr. 196, 203.

After reviewing plaintiff's medical records and listening to
his testimony, Dr. Nance gave his expert opinion at the ALJ
hearing.

Tr. 63-72.

from PTSD.

Tr. 64-65.

He opined that plaintiff primarily suffered
He also diagnosed plaintiff with MDD, in

partial remission, and an organic mental disorder,
notwithstanding the inconsistencies noted in plaintiff's medical
records.

Id.

Dr. Nance concluded that plaintiff's medical

impairments do not, either individually or in combination, meet
or equal a listed impairment.

Tr. 66.

The ALJ afforded Dr.

Nance's opinion significant weight because it was consistent with
the other medical evidence and he was the only doctor to analyze
all of plaintiff's medical records and hear his testimony.
28.

Tr.

As a result, the ALJ fashioned a RFC consistent with the

functional limitations assessed by Dr. Nance.

See Tr. 24, 66-74.

On appeal, plaintiff does not challenge the weight afforded
to the opinions of Drs. Dillon, Smyth, Kessler, or Nance.

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- OPINION AND ORDER

See

generally, Pl.'s Opening Br.; Pl.'s Reply Br.

Further, because

plaintiff has not sought or received any medical services since
September 2009, there are no coterminous records from any
treating source.

As such, based on evidence from Drs. Dillon,

Smyth, Kessler, and Nance, the ALJ gave plaintiff's VA serviceconnected disability rating some weight. 2

Tr. 28.

The ALJ

resolved that this more recent evidence established that
plaintiff's conditions were not as limiting as alleged or
initially described.

Id.

In fact, the ALJ noted that, based on

the longitudinal record, plaintiff's conditions are relatively
mild and capable of improving.

Id.

Therefore, the ALJ's

comprehensive assessment of plaintiff's medical records,
including those of Drs. Dillon, Smyth, Kessler, and Nance, is a
persuasive, specific, and valid reason, supported by substantial
evidence, for according less weight to the VA disability
determination.

See Valentine, 574 F.3d at 695.

Accordingly, the

ALJ did not err in his evaluation of plaintiff's VA disability
rating.
CONCLUSION

2

The ALJ expressly relied on the "[r]ecords from Dr. Smyth,
Dr. Kessler, and V.A. treatment providers" in affording less
weight to the VA disability rating.
Tr. 28. As such, contrary
to plaintiff's assertion, this Court does not improperly rely on
"[t] he Commissioner's .
. post hoc rationalization" by
affirming the ALJ's decision on this basis.
Pl.'s Reply Br. 2.
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- OPINION AND ORDER

The Commissioner's decision is AFFIRMED and this case is
DISMISSED.
IT IS SO ORDERED.
Dated this

~~day

of April 2014.

/

Ann Aiken
United States District Judge

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