Shatto v. Commissioner Social Security Administration
Filing
26
OPINION AND ORDER: The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter pursuant to sentence four of 42 U.S.C. § 405(g). Signed on 10/17/2017 by Judge Anna J. Brown. (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JESSICA AUDRENE SHATTO,
Plaintiff,
3:16-cv-01473-BR
OPINION AND ORDER
v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.
SARA L. GABIN
Sara L. Gabin, P.C.
14523 Westlake Drive
Lake Oswego, OR 97035
(503) 620-3171
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
On January 23, 2017, Nancy A. Berryhill was appointed the
Acting Commissioner of the Social Security Administration and
pursuant to Federal Rule of Civil Procedure 25(d) is substituted
as Defendant in this action.
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- OPINION AND ORDER
DAVID MORANDO
Regional Chief Counsel
MARTHA A. BODEN
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-3710
Attorneys for Defendant
BROWN, Judge.
Plaintiff Jessica Audrene Shatto seeks judicial review of
the final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Childhood Supplemental Security Income (Childhood SSI) and
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
On August 20, 2012, an application for Childhood SSI was
protectively filed on behalf of Plaintiff who was under 18 years
of age at that time.
Tr. 102.2
Plaintiff alleges a disability
onset date of January 1, 2000, when she was four years old.
2
Citations to the official transcript of record filed by
the Commissioner on February 3, 2017, are referred to as "Tr."
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Tr. 102.
The Commissioner denied the application initially on
December 17, 2012, and on reconsideration on March 13, 2013.
Tr. 130, 137.
Plaintiff reached 18 years of age while her claim
was pending review by an Administrative Law Judge (ALJ).
An
initial hearing was held June 9, 2014, at which Plaintiff
appeared pro se with her mother.
The hearing was rescheduled to
provide Plaintiff with the opportunity to obtain counsel.
Tr. 57-67.
The ALJ held a second hearing on November 21, 2014.
Tr. 68-100.
Plaintiff and a vocational expert (VE) testified.
Plaintiff was represented by an attorney at this hearing.
On March 13, 2015, the ALJ issued an opinion in which he
found Plaintiff was not disabled from the date of her application
and, therefore, is not entitled to benefits.
Tr. 33-51.
On
March 27, 2015, Plaintiff requested review by the Appeals
Council.
Tr. 21.
On June 8, 2016, the Appeals Council denied
Plaintiff's request to review the ALJ’s decision, and the ALJ’s
decision became the final decision of the Commissioner.
Tr. 1-3.
See Sim v. Apfel, 530 U.S. 103, 106-107 (2000).
On July 20, 2016, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.
BACKGROUND
Plaintiff was born February 20, 1995.
Tr. 37, 102.
At the
time of the hearings before the ALJ, Plaintiff lived with her
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parents.
Tr. 72.
February 20, 2013.
Plaintiff reached 18 years of age on
Tr. 51.
with a modified diploma.
Plaintiff graduated from high school
Tr. 49, 72.
Although Plaintiff worked
part-time at a McDonald’s, she does not have an earnings history
sufficient to qualify her as engaging in substantial gainful
activity.
Tr. 49.
Plaintiff alleges disability due to an audio-learning
disorder, a slight hearing loss, and dyslexia.
Tr. 102.
STANDARDS
Under federal law a claimant under 18 years of age is
disabled if she has a “medically determinable physical or mental
impairment, which results in marked and severe functional
limitations, and which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.”
42 U.S.C. § 1382(a)(3)(C)(I).
The initial burden of proof rests
on the claimant to establish her disability.
674 F.3d 1104, 1110 (9th Cir. 2012).
burden of developing the record.
Molina v. Astrue,
The Commissioner bears the
DeLorme v. Sullivan, 924 F.2d
841, 849 (9th Cir. 1991).
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).
4
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
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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 evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
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
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
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.
Determining Childhood Disability
An individual under 18 years of age is eligible for
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Childhood SSI payments based on disability if she suffers from "a
medically determinable physical or mental impairment, which
results in marked and severe functional limitations, and which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months."
42 U.S.C. § 1382c(a)(3)(C)(I).
The ALJ engages in a three-step sequential inquiry to
determine whether a claimant under 18 years of age is disabled
within the meaning of the Act.
20 C.F.R. § 416.924.
At Step One the Commissioner determines whether the claimant
is engaged in substantial gainful activity.
is not disabled.
If so, the claimant
If the claimant is not engaged in substantial
gainful activity, the Commissioner proceeds to evaluate the
claimant’s application for benefits under Step Two.
20 C.F.R.
§ 416.924(b).
At Step Two the Commissioner determines whether the claimant
has one or more severe impairments.
An impairment is severe if
it is more than a "slight abnormality or a combination of slight
abnormalities" and causes more than "minimal functional
limitations."
20 C.F.R. § 416.924(c).
If the claimant does not
have a severe impairment, the claimant is not disabled.
If the
claimant has a severe impairment, the Commissioner proceeds to
evaluate the claimant’s case under Step Three.
§ 416.924(c).
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20 C.F.R.
At Step Three the Commissioner determines whether the
claimant’s impairments “meet, medically equal, or functionally
equal” any of the impairments listed in the SSA regulations,
20 C.F.R. Part 404, Subpart P, Appendix 1.
§ 416.924(d)(1).
20 C.F.R.
See also Merrill ex rel. Merrill v. Apfel, 224
F.3d 1083, 1085 (9th Cir. 2000).
If this equivalency test is met
and the statutory duration requirement is satisfied, the claimant
is found disabled before she reaches 18 years of age.
If the
claimant’s impairments do not meet, medically equal, or
functionally equal an impairment listed in the regulations, the
claimant is not disabled.
20 C.F.R. § 416.924(d).
To determine whether a child’s impairments functionally
equal the listings, the child’s functional limitations are
evaluated in the following six domains:
(1) acquiring and using
information, (2) attending and completing tasks, (3) interacting
and relating with others, (4) moving about and manipulating
objects, (5) caring for oneself, and (6) health and physical
well-being.
20 C.F.R. §§ 416.926a(b)(1)(I)-(vi).
A medically
determinable impairment or combination of impairments
functionally equals a listed impairment if it results in “marked”
limitations in two domains of functioning or in an “extreme”
limitation in one domain.
20 C.F.R. § 416.926a(e)(2).
A
marked limitation exists when an impairment “seriously”
interferes with the ability to initiate, sustain, or complete
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activities independently.
20 C.F.R. § 416.926a(e)(2).
An extreme limitation exists when a child’s impairment
interferes “very seriously” with her functioning.
20 C.F.R.
§ 416.926a(e)(3).
II.
Adult Regulatory Sequential Evaluation
After the claimant reaches 18 years of age, the ALJ applies
the usual five-step sequential analysis.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity (SGA).
20 C.F.R. §§ 416.920(a)(4)(I).
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
impairment or combination of impairments.
§§ 416.920(a)(4)(ii).
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 the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§§ 416.920(a)(4)(iii). 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
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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 her limitations. 20 C.F.R.
§§ 416.920(e).
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
work she 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.
§§ 416.920(a)(4)(v).
20 C.F.R.
See also Keyser, 648 F.3d at 724-25.
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 MedicalVocational Guidelines (or the grids) set forth in the regulations
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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
I.
Childhood Disability
Here the ALJ followed the three-step sequential evaluation
for childhood disability required by 20 C.F.R. § 416.924.
At
Step One the ALJ found Plaintiff had not engaged in any
substantial gainful activity before she reached 18 years of age.
Tr. 37.
At Step Two the ALJ found Plaintiff’s impairments of audio
learning processing disorder, slight hearing loss in her right
ear, dyslexia, and borderline intellectual functioning were
severe within the meaning of 20 C.F.R. § 416.924(c).
Tr. 38.
The ALJ concluded, however, the objective medical evidence does
not establish Plaintiff had any other severe impairments.
Tr. 38.
At Step Three the ALJ found Plaintiff's impairments did not
meet or medically equal the severity criteria of the mental
impairments listed in § 112.02 or any other listing under mental
disorders.
See 20 C.F.R. § 404, subpt. P, app’x 1, pt. A or B.
Tr. 38-39.
The ALJ also found Plaintiff did not have an
impairment or combination of impairments resulting in either
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marked limitations in two domains of functioning or extreme
limitation in one domain of functioning.
Tr. 39-45.
Accordingly, the ALJ concluded Plaintiff was not disabled before
reaching 18 years of age.
II.
Tr. 45.
Adult Disability
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since August 20, 2012, the date
Plaintiff’s application was filed.
Tr. 37.
At Step Two the ALJ found the record reflects Plaintiff
continues to have the severe impairments of audio learning
processing disorder, slight hearing loss in her right ear,
dyslexia, and borderline intellectual functioning, but Plaintiff
has not developed any new impairment or combination of
impairments after reaching 18 years of age.
Tr. 46.
At Step Three the ALJ concluded, however, Plaintiff’s
medically determinable impairments do not meet or medically equal
any of the listed impairments in 20 C.F.R. part 416.920(d).
The
ALJ found Plaintiff has the RFC to perform a full range of work
at all exertional levels subject to certain nonexertional
limitations; i.e., she can perform simple, routine, and
repetitive tasks; make simple work-related decisions; interact
occasionally with the public; work in an environment with a
moderate noise level; and perform goal-oriented work.
The ALJ
found Plaintiff is unable to perform work at a production-rate
11 - OPINION AND ORDER
pace.
Tr. 47.
At Step Four the ALJ concluded Plaintiff has not performed
any past relevant work.
Tr. 49.
At Step Five the ALJ concluded the transferability of job
skills is not an issue because Plaintiff has not performed past
relevant work.
Tr. 50.
The ALJ found, based on Plaintiff’s age,
education, work experience, and RFC, that Plaintiff could perform
other work that exists in significant numbers in the national
economy.
Tr. 50.
The ALJ cited two examples of light unskilled
work that were identified by the VE:
Tr. 50.
bagger and table worker.
Thus, the ALJ concluded Plaintiff has not been disabled
since attaining 18 years of age and, therefore, is not entitled
to benefits.
Tr. 51.
DISCUSSION
Plaintiff contends the ALJ erred (1) in his analysis of
Plaintiff’s impairments before she reached 18 years of age and
(2) in his analysis of Plaintiff’s RFC after she reached 18 years
of age.
I.
The ALJ did not err in his determination that Plaintiff was
not disabled before she reached 18 years of age.
Plaintiff contends the ALJ erred when he failed to “refer
accurately to the full tone and content” of the evidence, failed
to find Plaintiff was extremely impaired in the domain of
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"acquiring and using information," and failed to find Plaintiff
markedly impaired in the domain of “attending and completing
tasks” before Plaintiff reached 18 years of age.
As noted, a medically determinable impairment or combination of impairments functionally equals a listed impairment
if it results in “marked” limitations in two domains of
functioning or in an “extreme” limitation in one domain.
20 C.F.R. § 416.926a(e)(2).
The record reflects Plaintiff was placed in an
individualized education program (IEP) during her schooling.
Tr. 254-84.
Dani Johnson, Plaintiff’s school case-manager, noted
on a teacher questionnaire that Plaintiff was “hard-working,” but
she needed extra time to complete tasks.
Tr. 262.
As to the
domain of acquiring and using information, Johnson indicated
Plaintiff has “very serious" problems understanding school and
content vocabulary, reading and comprehending written material,
and comprehending and doing math problems; serious problems
understanding and participating in class discussions, providing
organized oral explanations and adequate descriptions, and
applying problem-solving skills in class discussions; and obvious
problems in comprehending oral instructions, expressing ideas in
written form, learning new material, and recalling and applying
previously learned material.
Johnson stated Plaintiff required
extra help, repeated directions, and extended or simplified
13 - OPINION AND ORDER
directions or examples.
Tr. 278.
As to the domain of attending
and completing tasks, Johnson indicated Plaintiff has obvious
problems in carrying out multi-step instructions and slight
problems completing class/homework assignments, completing work
accurately without careless mistakes, and working at a reasonable
pace or finishing on time.
Johnson, however, indicated Plaintiff
did not have any problem paying attention when spoken to
directly, sustaining attention during play/sports activities,
focusing long enough to finish an assigned activity or task,
refocusing on a task when necessary, carrying out single-step
activities, waiting to take turns, changing from one activity to
another without being disruptive, organizing her own things or
school materials, or working without distracting herself or
others.
Tr. 279.
On November 26, 2012, Plaintiff was examined by Patrick
Ethel-King, Ph.D., a clinical psychologist.
Tr. 432-34.
Dr. Ethel-King found Plaintiff’s overall intellectual abilities
in the “borderline classification range.”
Tr. 434.
He noted
Plaintiff has some articulation difficulties, but her “thought
form,” although simple, was responsive to questions and relevant
to the topic.
Tr. 432.
Dr. Ethel-King concluded Plaintiff’s
nonverbal intellectual abilities appeared to be more developed
than her verbal intellectual abilities and that Plaintiff
demonstrated strength in the areas of nonverbal reasoning and
14 - OPINION AND ORDER
planning.
Tr. 434.
In a report dated December 17, 2012, Martin B. Lahr, M.D.,
and Megan D. Nicoloff, Psy.D., state-consulting doctors,
indicated Plaintiff had marked limitation in the domain of
acquiring and using information and less than marked limitation
in the domain of attending and completing tasks.
Tr. 105-08.
On March 12, 2013, Sharon B. Eder, M.D., and Kordel N. Kennemer,
Psy.D., also state-consulting doctors, made similar findings in
their evaluation of Plaintiff’s records.
Tr. 118-20.
At the hearing Plaintiff testified she lives at home with
her parents and brother, has a driver’s permit, graduated from
high school, and works part-time at McDonald’s.
Tr. 72.
Plaintiff also testified she helps with chores at home with
reminders from her mother, but she has trouble remembering the
steps to do the laundry.
Tr. 77.
Plaintiff enjoys baking, going
to the mall with friends, and playing the guitar.
88.
Tr. 73, 78,
Plaintiff testified she asks co-workers for help with her
job and gets frustrated when she is told to work harder or
faster.
Tr. 75, 81–82.
Based on this record, the ALJ found Plaintiff had only
marked or serious limitations in the domain of acquiring and
using information and less than marked limitation in the domain
15 - OPINION AND ORDER
of attending and completing tasks.3
Tr. 41-42.
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
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
On this record the Court concludes the ALJ did not err when
he found Plaintiff was not disabled before she reached 18 years
of age because the ALJ provided legally sufficient reasons
supported by substantial evidence in the record for doing so.
II.
The ALJ did not err in his evaluation of Plaintiff’s RFC
after she reached 18 years of age.
As noted, the ALJ concluded Plaintiff continued to have the
same severe impairments or combination of impairments after she
reached 18 years of age and has not developed any new
impairments.
Tr. 45.
The ALJ also concluded Plaintiff’s
impairments did not meet or medically equal any listed
impairments after she reached 18 years of age.
Tr. 46.
Thus,
the ALJ found Plaintiff has the RFC to perform a full range of
work at all exertional levels with some nonexertional
limitations.
The ALJ specifically found Plaintiff can perform
3
Plaintiff concedes these are the only two domains at issue
in this case.
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light unskilled work with limited, simple, routine, repetitive
tasks; can have occasional interaction with the public; and can
perform work that does not require production-rate performance.
Based on the ALJ’s evaluation of Plaintiff’s RFC, the VE
testified Plaintiff is able to perform the occupations of bagger
and table worker and that approximately half of those existing
jobs do not require production quotas.
Tr. 91-92.
Plaintiff, however, contends the ALJ’s evaluation of
Plaintiff’s RFC does not take into account Plaintiff’s slow
mental-processing speed and working memory.
Plaintiff,
therefore, contends the ALJ erred when he ignored the “tone and
content” of the evidence in both his evaluation of Plaintiff’s
RFC and in his hypothetical posed to the VE.
As noted, Dr. Ethel-King concluded Plaintiff has borderline
intellectual functioning, but he found Plaintiff, nevertheless,
was able to express herself, did not appear to have any
difficulties with comprehension, and engaged in all activities
during his evaluation.
Tr. 432, 434.
Dr. Kennemer also found
Plaintiff can carry out simple and repetitive work-like tasks
consistently and is capable of sustaining a normal work day/work
week.
Tr. 124.
On this record the Court concludes the ALJ did not err when
he found Plaintiff is not disabled based on his evaluation of
Plaintiff’s RFC and his conclusion that Plaintiff is able to
17 - OPINION AND ORDER
perform light, unskilled work that exists in the economy because
the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 17th day of October, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
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