Berjettej v. Commissioner of Social Security
Filing
25
OPINION and ORDER - The Commissioner's decision is supported by substantial evidence in the record, and it is therefore AFFIRMED. IT IS SO ORDERED. DATED this 30th day of June, 2014, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONNA JOYCE BERJETTEJ,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)
Case No. 3:13-cv-00420-AC
OPINION AND ORDER
ACOSTA, Magistrate Judge:
Donna Berjettej (“plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for Disability Insurance Benefits (“DIB”). Because the Commissioner’s decision is supported by
substantial evidence, the decision is AFFIRMED.
Page 1 – OPINION AND ORDER
Procedural Background
Plaintiff filed her application for DIB on June 28, 2005, alleging disability as of January
17, 2005. (Tr. 27.) The Commissioner denied her application initially and upon reconsideration,
and she requested a hearing before an Administrative Law Judge (“ALJ”).
After an
administrative hearing, the ALJ issued a decision on April 18, 2007, finding plaintiff not
disabled. (Tr. 24.) The Appeals Council denied plaintiff’s subsequent request for review, and
plaintiff appealed to the United States District Court. (Tr. 5.) Judge Brown reversed and
remanded the case for further proceedings. Berjettej v. Astrue, 2010 WL 3056799. On remand,
the case was assigned to ALJ Riley Atkins, who held a second hearing and issued a decision,
again finding plaintiff not disabled. (Tr. 670-82.) Plaintiff seeks judicial review of that decision.
Factual Background
Born in July, 1958, plaintiff was 48 years old on date of ALJ Atkins’s decision. She
alleges disability due to combined impairments including major depressive disorder, anxiety,
post-traumatic stress disorder, vertigo, headaches, and degenerative disc disease of the cervical
spine. (Tr. 670, 672.) Plaintiff speaks English and has a high school education. (Tr. 681.)
Standard of Review
The court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla.
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
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Cir. 1986). “Where the evidence as a whole can support either a grant or a denial, [a court] may
not substitute [its] judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.
2007) (citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).
To meet this burden, the claimant must
demonstrate an “inability to engage in any substantial gainful activity by reason 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. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First,
the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if
so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
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. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairment meets or equals “one
of a number of listed impairments that the Secretary acknowledges are so severe as to preclude
substantial gainful activity.” Id.; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively
presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can still perform “past
relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(e). If the claimant can work,
she is not disabled; if she cannot perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the
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claimant can perform other work.
Id. at 142; 20 C.F.R. § 404.1520(e) & (f).
If the
Commissioner meets this burden and proves that the claimant is able to perform other work
which exists in the national economy, she is not disabled. 20 C.F.R. § 404.1566.
The ALJ’s Findings
The ALJ performed the sequential analysis. At step one, he found that plaintiff had not
engaged in substantial gainful activity since her alleged onset date through March 21, 2010, her
date last insured. (Tr. 672.) At step two, the ALJ concluded that plaintiff had the following
severe impairments: major depressive disorder, dysthymia, posttraumatic stress disorder, a
history of heart palpitations, and mild degenerative disc disease of the cervical spine. (Tr. 67273.) At step three, the ALJ determined that plaintiff did not have an impairment or combination
of impairments that met or medically equaled a listed impairment. (Tr. 673.)
The ALJ next assessed plaintiff’s residual functional capacity (“RFC”) and found that
plaintiff could perform light work, with the following limitations: she can reach overhead no
more than occasionally due to cervical pain; she can do simple work with one-to-three step tasks;
she cannot perform or concentrate so as to sustain more complex tasks; she can engage in limited
contact with coworkers but no public contact; and she must avoid activities that involve
hazardous equipment, machinery or heights in the workplace. (Tr. 674-75.) At step four, the
ALJ found that plaintiff was unable to perform any past relevant work. (Tr. 680.) At step five,
based on the testimony of a vocational expert (“VE”), the ALJ concluded that plaintiff could
perform jobs that exist in significant numbers in the national economy, including small products
assembler, laundry folder, and paper sorter recycler. (Tr. 681.) Accordingly, the ALJ found
plaintiff was not disabled. (Tr. 682.)
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Discussion
Plaintiff argues that the ALJ failed to account for her moderate limitations in
concentration, persistence and pace in the RFC. Pl.’s Br. 16. The ALJ assessed plaintiff’s RFC
and found plaintiff capable of performing simple work with one-to-three step tasks, stating that
plaintiff could not perform or concentrate so as to execute more complex tasks. (Tr. 674-75.)
See also Berjettej v. Astrue, No. 09–CV–892–BR, 2010 WL 3056799 (D. Or. July 30, 2010)
(citing numerous judicial decisions in which courts conclude based on the particular records at
issue that an RFC limiting a claimant to simple and routine work does not account for his
limitations in concentration, persistence, and pace); Saylor v. Astrue, 2012 WL 3597423 at *3-4
(D. Or. Aug. 2012). Numerous other courts have concluded based on the particular records at
issue that a limitation to simple and routine work does capture a claimant’s limitations in
concentration, persistence, and pace. See Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1173–75
(9th Cir.2008). In other words, there is not a categorical rule that limitations in concentration,
persistence or pace translate to a specific RFC limitation. Saylor, 2012 WL 3597423, at *3-4.
In Stubbs-Danielson v. Astrue, the Ninth Circuit held an RFC restricting the claimant to
simple tasks adequately captured his moderate limitations in concentration, persistence and pace.
539 F.3d 1169, 1173-74 (9th Cir. 2008). The Stubbs-Danielson court explained that the ALJ’s
decision was supported by the “state psychologist's findings which concluded that the claimant,
despite certain pace deficiencies, retained the ability to do simple, repetitive, routine tasks.” Id.
at 1174. The ALJ’s limitation to simple tasks thus properly translated the claimant’s “pace and
mental limitations[] into the only concrete restrictions available to him.” Id. at 1174. Here,
plaintiff’s consultative physician Bill Hennings, Ph.D., opined that plaintiff was not significantly
limited in her ability to understand and remember very short and simple instructions or in her
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ability to remember locations and work-like procedures. (Tr. 440.) Dr. Hennings found no
significant limitations in plaintiff’s ability to carry out very short and simple instructions;
maintain attention and concentration for extended periods; sustain an ordinary routine without
special supervision; or make simple work-related decisions. (Id.) Plaintiff does not cite to any
concrete restrictions supported by the record that would translate into anything more than the
limitations captured in the ALJ’s RFC assessment. See, e.g., Pl.’s Br. 17. Thus, the Court
concludes that the ALJ’s assessment of plaintiff’s RFC is supported by substantial evidence in
the record and was appropriately limited to simple tasks. See Stubbs-Danielson, 539 F.3d at
1173-74. The ALJ’s assessment of plaintiff’s RFC is affirmed.
Conclusion
The Commissioner’s decision is supported by substantial evidence in the record, and it is
therefore AFFIRMED.
IT IS SO ORDERED
DATED this 30th day of June 2014.
____ _____/s/ John V.Acosta__________
JOHN V. ACOSTA
United States Magistrate Judge
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