Green v. Commissioner Social Security Administration
Opinion & Order. Commissioners decision is affirmed and this case is DISMISSED. Signed on 5/10/2017 by Judge Marco A. Hernandez. (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON WADE GREEN,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Donald V. Reeder
Glenn, Reeder, Gassner & Carl, LLP
205 SE 5th Street
Madras, OR 97741
Attorney for Plaintiff
Billy J. Williams
Janice E. Hebert
U.S. Attorney’s Office
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204
1 - OPINION & ORDER
OPINION & ORDER
Thomas M. Elsberry
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Jason Green brings this action for judicial review of the Commissioner’s final
decision denying his application for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42
U.S.C. § 1382(c)(3)). Because the Commissioner’s decision was supported by substantial
evidence and free of legal error, it is affirmed.
Plaintiff was born on June 1, 1972, and was forty years old at his alleged disability onset
date. Tr. 21.1 Plaintiff has a high school education. Id. He has past relevant work as a grounds
keeper, commercial/industrial cleaner, and lubrication servicer. Id. Plaintiff filed his application
for DIB on September 6, 2012, alleging an onset date of August 1, 2012. Tr. 13. His application
was initially denied on December 21, 2012, and upon reconsideration on April 15, 2013. Id. A
hearing was held before Administrative Law Judge (“ALJ”) John Michaelsen on July 9, 2014.
Tr. 29. ALJ Michaelsen issued a written opinion denying Plaintiff’s application on September
17, 2014. Tr. 13–23. The Appeals Council denied Plaintiff’s request for review, making the
ALJ’s opinion the Commissioner’s final decision that Plaintiff now challenges in this court. Tr.
Citations to “Tr.” refer to pages of the administrative record transcript, filed here as ECF 8.
2 - OPINION & ORDER
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
At the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(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), 416.920(c). If not, the claimant is not
At step three, the Commissioner determines whether claimant’s impairments, singly or in
combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(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, despite any
impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant 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. Yuckert, 482 U.S. at
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141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff met the insured status requirement through June
30, 2017, and had not engaged in SGA since the alleged onset date. Tr. 15.
At step two, the ALJ found that Plaintiff had the following severe impairments: attention
deficit disorder and bipolar disorder. Tr. 16. The ALJ considered other alleged conditions,
including an injury to Plaintiff’s right wrist, and concluded that they were non-severe. Id.
At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of one of the listed impairments. Id.
The ALJ formulated the following RFC, finding that Plaintiff could perform a “full range
of work at all exertional levels and the [RFC] to perform simple, repetitive, routine tasks
requiring no more than occasional interaction with supervisors, no contact with the general
public, and at most, brief infrequent contact with coworkers.” Tr. 17.
At step four, the ALJ found that Plaintiff could not perform past relevant work as a
grounds keeper, commercial/industrial cleaner, and lubrication servicer. Tr. 21.
At step five, the ALJ found that Plaintiff could perform the requirements of occupations
such as: hand packager, sweeper/cleaner, and warehouse worker. Tr. 22. Accordingly, the ALJ
concluded that Plaintiff was not disabled. Tr. 23.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings are based on legal error or are not supported by substantial evidence in
4 - OPINION & ORDER
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal
quotation marks omitted). Courts consider the record as a whole, including both the evidence that
supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational
interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal
quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(“Where the evidence as a whole can support either a grant or a denial, [the court] may not
substitute [its] judgment for the ALJ’s.”) (internal quotation marks omitted).
Plaintiff makes two challenges to the ALJ’s findings. First, he argues that the ALJ erred
at step two by finding that his right wrist pain was not a severe impairment. Second, Plaintiff
argues that the ALJ erred by discounting the opinions of two medical providers, William Herz,
M.D., his treating psychiatrist and Michelle Whitehead, Ph.D., a consultative psychologist.
Plaintiff’s Right Wrist Pain
On March 5, 2013, Plaintiff was involved in a car accident that caused a serious injury to
his right wrist. Tr. 439. The ALJ found that any impairment stemming from Plaintiff’s right wrist
injury was non-severe. Tr. 16. Plaintiff challenges that finding, arguing that his RFC was
insufficiently formulated because the ALJ failed to account for Plaintiff’s right wrist limitations.
By extension, Plaintiff further argues that the ALJ did not pose a hypothetical to the VE
including Plaintiff’s right wrist limitations. At step two, the plaintiff bears the burden of
establishing that a medically determinable impairment is severe, such that it “significantly limits
5 - OPINION & ORDER
the [plaintiff’s] ability to do basic work activities.” 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). “An impairment is not severe if it is merely a ‘slight abnormality (or
combination of slight abnormalities) that has no more than a minimal effect on the ability to do
basic work activities.’” Webb v. Barnhart, 433 F.ed 683, 686 (9th Cir. 2005) (quoting SSR 963p). Basic work activities include, in relevant part, physical actions such as “lifting, pushing,
pulling, reaching, carrying or handling.” 20 C.F.R. §§ 404.1521(b), 416.921(b). Further, the
plaintiff must demonstrate that the severe impairment has lasted or can be expected to last for at
least twelve months. 20 C.F.R. §§ 404.1509, 416.909, 404.1520, 416.920. This is referred to as
the durational requirement.
The step two inquiry is a “de minimis” screening device used to dispose of groundless
claims. Yuckert, 482 U.S. at 153–54. A plaintiff may satisfy step two’s severity requirement
through “medical evidence consisting of signs, symptoms, and laboratory findings.” 20 C.F.R.
§ 404.1508. A plaintiff’s own statements of symptoms alone are insufficient. Id.
Plaintiff contends that his right wrist injury caused fragments of his wrist bone to float in
his body as well as carpel tunnel. Pl. Br. at 4–5. To show that his alleged impairment satisfies the
durational requirement, Plaintiff points to his visit with Dr. Katrina Perry that occurred on June
2, 2014, more than a year after the accident. Tr. 428. Plaintiff reported to Dr. Perry that his wrist
still “hurts and gives [him] problems.” Tr. 428. In Plaintiff’s view, this statement taken with his
use of a brace supports the inference that his right wrist impairment lasted longer than twelve
The ALJ found that Plaintiff’s right wrist impairment was non-severe because it was not
supported by medical evidence in the records and because Plaintiff failed to demonstrate that it
satisfied the durational requirement. An x-ray of Plaintiff’s right wrist showed a “small avulsion
6 - OPINION & ORDER
fracture of the dorsal distal radial articular surface and medial radial articular surface, as well as,
a minimally displaced ulnar styloid fracture.” Tr. 16, 435–36. The ALJ also found that: X-rays
taken in 2014 “did not show sign[s] of worsening;” Plaintiff “had positive Phalen’s and Tinel’s
signs” and that “[t]here was diffuse tenderness of the wrist, but no swelling or deformity.” Tr. 16,
430. Moreover, the ALJ also noted that Plaintiff did not make any subsequent complaints related
to his right wrist until his June 2014 meeting with Dr. Perry, more than a year after the accident.
Tr. 16. The ALJ found that these lapses in time regarding complaints and treatment strongly
suggested that the condition did not result in any severe impairment. Id. The ALJ concluded that,
“given the meager clinical development of these conditions during the relevant period at issue[,]”
Plaintiff’s right wrist condition was non-severe. Id. This conclusion was further reinforced by the
medical opinions of the State agency’s reviewing medical consultants Drs. Neal Berner and
Martin Lahr. Tr. 16, 65–74, 77–87.
While the step two inquiry may be “de minimis,” the Court must affirm the ALJ’s finding
that Plaintiff’s right wrist impairment was non-severe. Based on the year-long lapse in time
between the accident and Plaintiff’s subsequent complaints, it was reasonable for the ALJ to
conclude that Plaintiff’s claimed impairment did not satisfy the durational requirement. The
Court also finds that the ALJ’s determination was supported by substantial evidence in the
record. Objective medical evidence showed that Plaintiff’s right wrist condition had no more
than a minimal effect on his ability to perform work activities. Medical imaging showing
minimal abnormalities and the lack of clinical documentation of an impairment constitute
“relevant evidence as a reasonable mind might accept as adequate to support” the ALJ’s
conclusion. Vasquez, 572 F.3d at 591.
7 - OPINION & ORDER
Next, Plaintiff challenges the ALJ’s treatment of the opinions of Drs. Whitehead and
Herz regarding Plaintiff’s ADD and bipolar disorder. In social security cases, there are three
types of medical opinions that courts accord different weight. Valentine, 574 F.3d at 692.
Generally, more weight is given to the opinion of a treating source than to an examining source
and more weight is given to the opinion of an examining source than to a non-examining source.
Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996). Where the treating or examining doctor’s
opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing
reasons.” Id. at 830. If the opinion is contradicted, the ALJ must provide “specific and legitimate
reasons” for rejecting it. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “The ALJ can
meet this burden by setting out a detailed and thorough summary of the facts and conflicting
clinical evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989) (quotation and citation omitted). Specific and legitimate
reasons for rejecting a treating physician’s opinion include its reliance on a claimant’s
discredited subjective complaints or its inconsistency with the medical records, a physician’s
own treatment notes, or a claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1041
(9th Cir. 2008).
Plaintiff challenges the ALJ’s rejection of the opinion of Dr. Herz, a mental health
provider and treating source. Dr. Herz’s opinion is contradicted by the medical opinions of Drs.
Joshua Boyd and Kordell Kennemer. Tr. 21, 71–72, 84–86. Accordingly, the ALJ must provide
specific and legitimate reasons based on substantial evidence in the record to reject Dr. Herz’s
opinion. Valentine, 574 F.3d at 692. On September 17, 2013, Dr. Herz opined that Plaintiff’s
8 - OPINION & ORDER
bipolar disorder and ADD caused marked limitations in social functioning and in his abilities to:
maintain concentration for extended periods; perform activities within a schedule; coordinate and
work closely with others; interact with the general public; accept instructions and criticism; and
to get along with coworkers and peers without distracting them or exhibiting behavioral
extremes. Tr. 424–27. In a letter dated January 8, 2014, Dr. Herz responded to Plaintiff’s
counsel’s request for information. Tr. 335. In that letter, Dr. Herz stated that he had not seen
Plaintiff since August 21, 2013. Id. He explained:
The best that I can tell you is that it is highly likely he would have
been impaired from doing any work for more than a year after
August 2, 2012, and it is unlikely that he would have improved that
significantly when I last saw him on August 21, 2013. I cannot
vouch for his level of functioning after that time, however.
Id. In a subsequent letter dated July 15, 2014, Dr. Herz responded to Plaintiff’s inquiry regarding
“possible causes of [Plaintiff’s] deterioration as of August 1, 2012 to the point that he could no
longer work.” Tr. 412. Dr. Herz stated that he had no contact with plaintiff since August 2013,
nor did he have access to Plaintiff’s old medical records. Id. He also wrote that:
[I]n the several months prior to his losing his job at Warm Springs
that [Plaintiff] showed increasing deterioration in his ability to
maintain focus and concentration, interact normally with other
people, and essentially outside of his job seemed to have severe
dysfunction to his social interactions and ability to maintain his
activities of daily living.
Id. Dr. Herz further wrote that he did not remember a diagnosis of Plaintiff’s anxiety disorder,
but he did recall “severe dysfunction in his abilities to interact socially with other people.” Id.
Dr. Herz also remarked that Plaintiff had marked difficulties in focus and concentration to the
point where Dr. Herz believed that Plaintiff might have a diagnosis of ADD but that he “never
was able to spend enough time subsequently with him to draw any conclusions about that
9 - OPINION & ORDER
The ALJ gave Dr. Herz’s letters little weight because they were inconsistent with his own
treatment notes. Tr. 20. The ALJ explained:
For example, contrary to the level of severity implicated in the first
letter, during the course of treatment in 2012, Dr. Herz noted the
“possibility” that the claimant was significantly impaired, but that
there was no evidence at that point to certify for the requisite
duration. [Tr. 272–73]. Moreover, increased symptoms occurred in
large part, if not entirely, due to lack of treatment, not in spite of it.
As discussed above, when the claimant had the financial means for
medication management, symptoms improvement. Also, Dr.
Herz’s failure to account for the claimant’s admitted meth abuse
renders this opinion less persuasive. After hearing the claimant’s
substance abuse, Dr. Herz state that “this does make sense out of
some of his unusual past functioning issues” [Tr. 338].
Id. Regarding Dr. Herz’s treatment notes dated August 2, 2012, the last time that Dr. Herz had
seen Plaintiff, he stated that “[a]t this point I think it is unlikely he could get [disability benefits]
even though there is a possibility that he is significantly impaired.” Tr. 272. In those treatment
notes, he also wrote that Plaintiff’s physical appearance looked better, he was less depressed, his
attention was somewhat more focused, and his GAF score was slightly improved at 48. Tr. 272–
The Court agrees with the ALJ that Dr. Herz’s assessment of Plaintiff contained in his
treatment notes is inconsistent with the level of function described in both of his subsequent
letters. It is a specific and legitimate reason to discredit a physician’s opinion where that opinion
is inconsistent with the physician’s own treatment notes. Ghanim v. Colvin, 763 F.3d 1154, 1161
(9th Cir. 2014). In his letters, Dr. Herz stated that he had not seen Plaintiff since his August 2012
visit and that he had not received Plaintiff’s medical records. In other words, there was no
information available to Dr. Herz upon which to opine that Plaintiff’s condition had deteriorated
since his last contact with Plaintiff.
10 - OPINION & ORDER
Moreover, Dr. Herz’s omission of Plaintiff’s methamphetamine abuse (which Plaintiff
later claimed that he made up) severely undercuts the weight of his letters. Dr. Herz remarked on
Plaintiff’s purported meth abuse in his treatment notes but omitted it entirely from both of his
letters. Dr. Herz’s failure to discuss Plaintiff’s methamphetamine abuse in his letters is a specific
and legitimate reason for according them little weight. Thomas v. Barnhart, 278 F.3d 947, 959
(9th Cir. 2002) (upholding the ALJ’s determination that a “lack of candor” can be inferred from
the claimant’s inconsistent statements about her marijuana use which “carries over to her
description of physical pain”); see also Hardwick v. Astrue, 782 F. Supp. 2d 1170, 1179–80
(E.D. Wash. 2011) (citing Lingenfelter, 504 F.3d at 1044–45) (holding that a doctor’s failure to
diagnose or factor in evidence of the claimant’s substance abuse constituted a specific and
legitimate reason for disregarding his opinion); Roy v. Colvin, No. 14-35162, 656 Fed. Appx.
816, 818 (9th Cir. 2016) (holding that the ALJ properly rejected the opinions of the claimant’s
therapists because they did not sufficiently account for his drug abuse).
Dr. Whitehead, an examining source, conducted a mental evaluation of Plaintiff in
December 2012. Tr. 245–49. She gave Plaintiff a Global Assessment of Functioning (“GAF”)
score of 52 and opined that “working alone doing repairs is more suitable” for Plaintiff given his
irritability with the public. Tr. 19–20, 248. She also opined that Plaintiff “may be able to work
part time to decrease job stress.” Tr. 248. The ALJ found that Dr. Whitehead’s GAF score was
persuasive because it was consistent with her contemporaneous mental evaluation of Plaintiff.
Accordingly, the ALJ gave that part of the opinion great weight. Tr. 20. By contrast, the ALJ
accorded little weight to Dr. Whitehead’s remark that Plaintiff may be able to work part time to
decrease job stress because she used equivocal language. Id. The ALJ also found that diminished
11 - OPINION & ORDER
job stress was adequately accounted for in his RFC finding limiting Plaintiff to simple work with
social restrictions. Id.
An ALJ is “not required to incorporate limitations phrased equivocally into the RFC.”
Collum v. Colvin, No. 6:13-cv-01173-AA, 2014 WL 3778312, *4 (D. Or. July 30, 2014) (citing
Valentine, 574 F.3d at 691–92). For example, an ALJ may reject function limitations prefaced
with language such as “might,” “may,” or “would also likely require.” Id. (citing Glosenger v.
Comm’r Soc. Sec. Admin, No. 3:12-cv-1773-ST, 2014 WL 1513995, *6 (Apr. 16, 2014)).
Statements including such language may be excluded by an ALJ because they are not diagnoses
or descriptions of a plaintiff’s functional capacity. See Valentine, 574 F.3d at 691–92 (upholding
the ALJ’s rejection of an equivocal medical observation because it was “neither a diagnosis nor a
statement of [the plaintiff’s] functional capacity” and finding that it was “rather a recommended
way for [the plaintiff] to cope with his PTSD symptoms”).
In this case, the ALJ accorded great weight to Dr. Whitehead’s opinion to the extent that
it was consistent with objective medical evidence in the record and her own contemporaneous
mental health examination of Plaintiff. The ALJ accorded little weight, however, Dr.
Whitehead’s statement that plaintiff “may be able to work part time to decrease job stress.” Tr.
20, 248 (emphasis added). The Court agrees that this language was equivocal and did not
describe Plaintiff’s functional capacity such that the ALJ was required to incorporate it into the
RFC. Dr. Whitehead’s statement that Plaintiff “may be able to work part time to decrease job
stress” merely describes a recommended method for Plaintiff to cope with his bipolar disorder.
Accordingly, the ALJ did not err by rejecting this statement from Plaintiff’s RFC. Furthermore,
the ALJ accounted for diminished job stress in the RFC by limiting Plaintiff to simple work with
12 - OPINION & ORDER
“no more than occasional interaction with supervisors, no contact with the general public, and at
most, brief infrequent contact with coworkers.” Tr. 17.2
Based on the foregoing, the Commissioner’s decision is affirmed and this case is
IT IS SO ORDERED.
day of ________________, 2017
MARCO A. HERNÁNDEZ
United States District Judge
Plaintiff’s single-sentence assertion tacked on to the end of his brief that the ALJ improperly rejected the lay
testimony of his mother-in-law was insufficient to preserve the issue. See Greenwood v. F.A.A., 28 F.3d 971, 977
(9th Cir. 1994) (declining to manufacture arguments on a party’s behalf and holding that a bare assertion to not
preserve a claim).
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