Cross v. Commissioner Social Security Administration
Filing
19
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 11/3/2016 by Judge Anna J. Brown. See attached 13 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
HASSAN CROSS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
GEORGE J. WALL
1336 E. Burnside
Suite 130
Portland, OR 97214
(503) 236-0068
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
3:16-CV-00018-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
ERIN F. HIGHLAND
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2495
Attorneys for Defendant
BROWN, Judge.
Plaintiff Hassan Cross seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on July 5, 2011, and
alleged a disability onset date of July 2, 2004.
Tr. 187.1
application was denied initially and on reconsideration.
His
An
Administrative Law Judge (ALJ) held a hearing on March 31, 2014.
Tr. 36.
At the hearing Plaintiff and a vocational expert (VE)
1
Citations to the official transcript of record filed by
the Commissioner on May 12, 2015, are referred to as "Tr."
2 - OPINION AND ORDER
testified.
Plaintiff was represented by an attorney.
On
April 24, 2014, the ALJ issued an opinion in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.
Tr. 16.
On November 4, 2015, that decision became the
final decision of the Commissioner when the Appeals Council
denied Plaintiff's request for review.
Tr. 1-6.
See Sims v.
Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on October 28, 1979, and was 34 years old
at the time of the hearing.
high school.
Tr. 43.
work experience.
Tr. 189.
Plaintiff graduated from
Plaintiff does not have any past relevant
Tr. 29.
Plaintiff alleges disability due to cerebral palsy, a
personality disorder, and post-traumatic stress disorder (PTSD).
Tr. 229.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 22-26.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
3 - OPINION AND ORDER
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012).
To meet this burden a claimant must demonstrate his
inability "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."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district 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 as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
4 - OPINION AND ORDER
2009).
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
record.
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 416.920.
Each step is potentially
dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 416.920(b).
See also Keyser v. Comm’r of
Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe
5 - OPINION AND ORDER
impairment or combination of impairments.
§ 416.920(c).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).
20
See also Keyser, 648 F.3d at 724.
The criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s Residual Functional Capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 416.945(a).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
6 - OPINION AND ORDER
work he has done in the past.
20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 416.920(a)(4)(v).
Keyser, 648 F.3d at 724.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since his July 5, 2011,
application date.
Tr. 18.
At Step Two the ALJ found Plaintiff has the severe
impairments of PTSD, vision loss, bipolar disorder, and substance
abuse in remission.
Tr. 18.
The ALJ found Plaintiff’s
conditions of degenerative disc disease, HIV infection, and
cerebral palsy are not medically determinable impairments.
7 - OPINION AND ORDER
Tr. 19.
At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.
The ALJ found Plaintiff
has the RFC to perform a full range of work at all exertional
levels.
The ALJ also found Plaintiff is limited to “simple,
routine tasks” and “work that does not require fine visual
acuity.”
Tr. 20.
At Step Four the ALJ found Plaintiff does not have any past
relevant work experience.
Tr. 24.
At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy.
Tr. 29.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) did not find
Plaintiff’s migraine headaches to be a severe impairment at Step
Two, (2) did not identify at Step Firve a substantial number of
jobs in the national economy that Plaintiff could perform, and
(3) failed to consider the effect of stress on Plaintiff’s
ability to work.
I.
The ALJ did not err at Step Two.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
8 - OPINION AND ORDER
impairment or combination of impairments.
1052.
Stout, 454 F.3d at
See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii).
A
severe impairment "significantly limits" a claimant's "physical
or mental ability to do basic work activities."
§ 404.1521(a).
20 C.F.R.
See also Ukolov, 420 F.3d at 1003.
The ability
to do basic work activities is defined as "the abilities and
aptitudes necessary to do most jobs."
(b).
20 C.F.R. §§ 404.1521(a),
Such abilities and aptitudes include walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, handling,
seeing, hearing, speaking; understanding, carrying out, and
remembering simple instructions; using judgment; responding
appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
Id.
As noted, Plaintiff asserts the ALJ erred at Step Two when
he did not find Plaintiff’s migraines to be a severe impairment.
Plaintiff, however, did not allege migraines were a limiting
condition in his application for benefits or in his disability
reports nor did he testify at the hearing that he suffered from
disabling migraines.
The record reflects Plaintiff reported to
the emergency room for headaches four times between April 2010
and July 2013, at which time Plaintiff was treated and
discharged.
Plaintiff did not seek follow-up treatment for
migraines.
9 - OPINION AND ORDER
Tr. 332-33, 337-38, 551-51, 667-68.
Moreover, the record does
not reflect any doctor diagnosed Plaintiff with migraine
headaches or assessed Plaintiff with any functional limitations
from migraine headaches.
Plaintiff, therefore, has not
established the ALJ erred at Step Two when he did not find
Plaintiff’s migraine headaches to be a severe impairment.
In addition, the Ninth Circuit has held when the ALJ has
resolved Step Two in a claimant's favor, any error in designating
specific impairments as severe does not prejudice a claimant at
Step Two.
Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)
(any error in omitting an impairment from the severe impairments
identified at Step Two was harmless when Step Two was resolved in
claimant's favor).
Because the ALJ resolved Step Two in
Plaintiff's favor, the Court concludes any error by the ALJ in
failing to find Plaintiff’s migraine headaches to be a severe
impairment is harmless.
II.
The ALJ identified a significant number of jobs in the
national economy that Plaintiff could perform.
Plaintiff contends the ALJ erred at Step Five when he found
Plaintiff could perform jobs that exist in significant numbers in
the national economy.
three jobs:
The ALJ found Plaintiff could perform
janitor, auto detailer, and hand packager.
Plaintiff asserts and Defendant does not dispute that the
job of janitor is inconsistent with the ALJ’s evaluation of
Plaintiff’s RFC.
Plaintiff also asserts the jobs of auto
10 - OPINION AND ORDER
detailer and hand packager do not exist in sufficient numbers in
Oregon to satisfy the Commissioner’s burden at Step Five.
Specifically, the jobs of auto detailer and hand packager have a
combined total of 680 jobs in Oregon.
The Social Security Act,
however, makes clear that at Step Five the requirement of work
that exists in the national economy can be satisfied by “work
which exists in significant numbers either in the region where
[an] individual lives or in several regions of the country.”
U.S.C. § 1382(a)(3)(B) (emphasis added).
42
As the Ninth Circuit
explained in Gutierrez v. Commissioner of Social Security:
Section 1382c(a)(3)(B) defines “work in the
national economy” in the disjunctive. . . . “The
statute in question indicates that the
‘significant number of jobs’ can be either
regional jobs (the region where a claimant
resides) or in several regions of the country
(national jobs) . . . . If we find either of the
two numbers significant, then we must uphold the
ALJ's decision.”
740 F.3d 519, 523-24 (9th Cir. 2014)(quoting Beltran v. Astrue,
700 F.3d 386, 389–90 (9th Cir. 2012)).
The record reflects the jobs of auto detailer and hand
packager have a combined total of 91,000 jobs nationally.
In
Gutierrez the Ninth Circuit found the ALJ did not err when he
concluded 25,000 national jobs constituted work that exists in
significant numbers in several regions of the country.
at 528.
740 F.3d
In other cases the Ninth Circuit has concluded numbers
fewer than 91,000 satisfy the standard.
11 - OPINION AND ORDER
See, e.g., Moncada v.
Chater, 60 F.3d 521, 524 (9th Cir. 1995)(64,000 jobs nationwide
is significant).
On this record the Court concludes the ALJ did not err at
Step Five when he found Plaintiff could perform jobs that exist
in significant numbers in the national economy.
III. The ALJ did not err when he did not consider the effect of
stress on Plaintiff’s ability to maintain employment.
Plaintiff contends the ALJ erred when he failed to consider
the effect of stress on Plaintiff’s ability to maintain
employment.
Plaintiff, however, fails to point to evidence in
the record showing how stress specifically limits his ability to
maintain employment.
Plaintiff relies on the reports of his
mother, his sister, and himself that he sometimes “goes on rants”
in response to stress and that he does not respond well to
stress.
Tr. 240, 271, 565.
The ALJ, however, provided
sufficient reasons supported by substantial evidence in the
record for finding that Plaintiff was not entirely credible and
for giving limited weight to the statements of his mother and
sister.
Plaintiff does not challenge those findings.
In addition, to the extent that Plaintiff asserts the ALJ
should have evaluated his mental impairments under the standard
set out in SSR 85-15, the Ninth Circuit has made clear that “SSR
85-15 provides guidance only for cases in which the claimant
asserts ‘solely nonexertional impairments.’”
Roberts v. Shalala,
66 F.3d 179, 183 (9th Cir. 1995)(quoting SSR 85-15)).
12 - OPINION AND ORDER
Here
Plaintiff asserted both exertional and nonexertional impairments,
and, therefore, SSR 85-15 does not apply.
See, e.g., Gunderson
v. Astrue, 371 F. App’x 807, 809-10 (9th Cir. 2010)(SSR 85-15 did
not apply when the claimant alleged exertional and nonexertional
impairments); Sandgathe v. Chater, 108 F.3d 978, 980-81 (9th Cir.
1997)(same).
On this record the Court concludes the ALJ did not err when
he did not consider the effect of stress on Plaintiff’s ability
to maintain employment.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 3rd day of November, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
13 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?