Haskin v. Commissioner Social Security Administration

Filing 19

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 01/30/18 by Judge Anna J. Brown. See attached Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CALVIN D. HASKIN,
Plaintiff,

3:17-cv-00011-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

GEORGE J. WALL
Law Offices of George J. Wall
1336 E, Burnside, Suite 130
Portland, OR 97214
[phone]
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
[phone]
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.
1 - OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Calvin Dwayne Haskin seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (SSA) in which he denied Plaintiff's applications
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 protectively filed his application for SSI
benefits on January 7, 2013.

Tr. 19.2

Plaintiff alleges a

disability onset date of January 2, 1982.

Tr. 19.

Plaintiff’s

applications were denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on January 27,

2

Citations to the official transcript of record filed by
the Commissioner on May 25, 2017, are referred to as "Tr."
2 - OPINION AND ORDER

2015.

Tr. 19, 37-58.

testified.

Plaintiff and a vocational expert (VE)

Plaintiff was represented by an attorney at the

hearing.
On June 2, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 19-32.

On July 13, 2015, Plaintiff requested

review by the Appeals Council.

Tr. 14.

On November 15, 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. 1-4.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).
On January 4, 2017, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on May 26, 1957.

Tr. 31.

fifty-seven years old at the time of the hearing.
obtained a GED.

Tr. 218, 283.

Plaintiff was
Plaintiff

The ALJ found Plaintiff does not

have any past relevant work experience.

Tr. 31.

Plaintiff alleges disability due to schizoaffective
disorder/depression.

Tr. 69.

Except as 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

3 - OPINION AND ORDER

medical evidence.

See Tr. 21-30.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

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]

4 - OPINION AND ORDER

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.

The Regulatory Sequential Evaluation
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
5 - OPINION AND ORDER

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.
§ 416.920(a)(4)(iii).

20 C.F.R.

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.
§ 416.920(e).

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 724-25.

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 (or the
grids) 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 January 7, 2013, Plaintiff’s
application date.

Tr. 21.

At Step Two the ALJ found Plaintiff has the severe
impairments of lumbar degenerative disc disease, schizoaffective
disorder, polysubstance dependence, antisocial personality
disorder, and depression.

Tr. 21.

At Step Three the ALJ concluded Plaintiff's medically
7 - OPINION AND ORDER

determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 21-24.

The ALJ found Plaintiff can frequently

lift and carry 25 pounds and occasionally lift and carry 50
pounds; can sit, stand, and walk up to six hours in an eight-hour
workday; can frequently perform postural activities such as
climbing stairs, ramps, ropes, ladders and scaffolding; and can
frequently perform balancing, stooping, kneeling, crouching and
crawling.

The ALJ found Plaintiff should avoid concentrated

exposure to hazards such as working at unprotected heights or
around machinery with exposed moving parts.

The ALJ also found

Plaintiff is limited to unskilled work requiring no more than
incidental contact with the public and no teamwork tasks with
coworkers.

Tr. 24.

Ultimately, the ALJ concluded Plaintiff has

the RFC to perform medium work.
At Step Four the ALJ concluded transferability of job skills
is not an issue because Plaintiff does not have past relevant
work.

Tr. 31.
Based on Plaintiff’s age, education, work experience, and

RFC, the ALJ found at Step Five that Plaintiff can perform other
work in the national economy.

Tr. 31-32.

The ALJ cited

examples of such work that were identified by the VE:
helper, material handler, and lumber sorter.

general

Tr. 31, 59-60.

Thus, the ALJ concluded Plaintiff is not disabled and, therefore,

8 - OPINION AND ORDER

is not entitled to benefits.

Tr. 32.

DISCUSSION
Plaintiff contends the ALJ erred when he rejected the
opinion of Cheryl S. Brischetto, Ph.D., a consulting
psychologist, and failed to give specific and legitimate reasons
for rejecting her opinion.
The Commissioner contends the ALJ’s conclusion was a
rational interpretation of Dr. Brischetto’s opinion, and,
therefore, the Court should defer to the ALJ’s determination.
I.

Standards
The Court must affirm the ALJ’s findings of fact if they are

supported by substantial evidence and if the ALJ’s decision is
free of legal error.

42 U.S.C. § 405(g).

See also Guitierrez v.

Colvin, 844 F.3d 804, 807, (9th Cir. 2016).
When “evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be upheld.”
Burch v. Barnhardt, 400 F.3d 676, 679 (9th Cir. 2005).

See also

Shaibi v. Berryhill, 870 F.3d 874, 880 (9th Cir. 2017).

“If the

evidence can support either outcome, the court many not
substitute its judgment for that of the ALJ.”

Tackett v. Apfel,

180 F.3d 1094, 1098 (9th Cir. 1999).
II.

Analysis
Plaintiff contends even though the ALJ purportedly gave

9 - OPINION AND ORDER

significant weight to Dr. Brischetto’s opinion, the ALJ
improperly discounted Dr. Brischetto’s assessment that Plaintiff
is markedly limited in his ability to respond appropriately in
work settings and to changes in the workplace routine and that
Plaintiff has moderate-to-severe limitations in interacting
appropriately with supervisors. Tr. 29.
On March 18, 2015, Dr. Brischetto examined Plaintiff at the
request of the Disability Determination Services of the State of
Oregon.

Tr. 657-77.

As part of a check-box medical source

statement, Dr. Brischetto indicated Plaintiff had "moderate-tomarked" restrictions in his ability to interact appropriately
with the public, supervisors, and co-workers.

Tr. 675.

She also

noted Plaintiff had marked limitations in his ability to respond
appropriately to usual work situations, to respond to changes in
a routine work setting, and to make judgments on complex workrelated decisions.

Tr. 675

The ALJ found his evaluation of Plaintiff’s RFC was
consistent with Dr. Brischetto’s opinions with the exception of
Dr. Brischetto’s assessment that Plaintiff was markedly limited
in his ability to deal with the usual workplace stress and
changes in routine work settings.

Tr. 29.

The ALJ included in

his evaluation of Plaintiff’s RFC that Plaintiff is limited to
only incidental contact with the public and no team-work tasks
with coworkers.

Tr. 24.

10 - OPINION AND ORDER

The ALJ concluded the record supported

his evaluation of Plaintiff’s limitations as “moderate at most.”
Tr. 29.
In Rounds v. Commissioner of Social Security Administration
the court found when the physician’s opinion was part of a
checkbox form in the physician’s summary report, the ALJ’s
treatment of the physician’s opinion that the plaintiff had
moderate limitations in her ability to accept instructions and to
respond appropriately to criticism did not constitute a
“rejection” of the physician’s opinion if the ALJ specifically
referred to it in evaluating the plaintiff’s RFC.
1005 (9th Cir. 2015).

807 F.3d 996,

See also Smith v. Colvin, No. 3:15-cv-

00267-MC, 2016 WL 1065816, at *3 (D. Or. March 15, 2016)(“[A]n
ALJ’s RFC findings are not required to address a physician’s
checked-box opinion regarding a moderate limitation, where the
ALJ notes this opinion and gives it great weight as a
whole.”)(citing Rounds, 807 F.3d at 1005).
Moreover, when an ALJ’s findings are consistent with but not
identical to a physician's assessed limitations of the claimant,
those findings do not constitute a rejection of the physician’s
opinion.

Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217,

1222-23 (9th Cir. 2010).

See also Thomas v. Colvin, No.

3:14-cv-00667-CL, 2015 WL 4603376, at *5 (D. Or. July 29, 2015).
In other words, when the ALJ evaluates a claimant's RFC, his
findings must merely be consistent with the physician’s

11 - OPINION AND ORDER

conclusions rather than a carbon copy of the physician’s opinion.
Smith, 2016 WL 1065816, at *3.

If the ALJ’s findings are not

consistent with the physician’s opinion, the ALJ must provide
legally sufficient reasons for rejecting part of the physician's
opinion.
In Shaibi v. Berryhill a consultative psychiatrist diagnosed
the plaintiff with depressive disorder and post-traumatic stress
disorder.

The psychiatrist noted the plaintiff could perform

simple, repetitive tasks in the workplace, but the plaintiff was
“moderately limited” in terms of his ability to get along with
peers and supervisors because of a mood disorder.

The ALJ gave

“significant weight” to the psychiatrist’s opinion and assessed
the plaintiff with an RFC limited to “simple routine tasks in a
non-public setting, with occasional interaction with coworkers.”
The plaintiff contended the ALJ erred when he assessed the
plaintiff’s RFC by rejecting the psychiatrist’s opinion.

The

court, however, concluded the ALJ did not err and noted:
The ALJ evidently contemplated that [the plaintiff’s]
social limitations were significant enough that he was
incapable of frequent or sustained interactions with
coworkers, but not sufficiently debilitating that [the
plaintiff] could never interact with colleagues or
supervisors. That conclusion is consistent with [the
consultative psychiatrist’s] opinion that [the
plaintiff’s] social limitation were “moderate,” rather
than mild or marked.
870 F.3d at 879 (emphasis in original).
Here the ALJ did not reject Dr. Brischetto’s opinion.

12 - OPINION AND ORDER

In

fact, as noted, the ALJ gave significant weight to her opinion
and generally agreed with Dr. Brischetto’s finding that Plaintiff
did not have the ability to interact in the workplace with the
public and co-workers.

As noted, the ALJ’s evaluation of

Plaintiff’s RFC included a limitation for only “incidental
contact” with the public and “no teamwork tasks.”
On this record the Court concludes the ALJ did not reject
Dr. Brischetto’s opinion, Plaintiff’s RFC is consistent with
Dr. Brischetto’s opinion, and the ALJ’s interpretation of the
evidence is rational and supported by substantial evidence in the
record.
Accordingly, the Court concludes the ALJ did not err in his
consideration of Dr. Brischetto’s opinion or in his evaluation of
Plaintiff’s RFC.

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 30th day of January, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
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14 - OPINION AND ORDER