Jackson v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER: Pursuant to 42 U.S.C. § 405(g), sentence four, the CourtAFFIRMS the Commissioner's decision. (See 10-page opinion for more information.) Signed on 11/14/2023 by Magistrate Judge Andrew D. Hallman. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

PAUL J.,1

Case No. 3:22-cv-01769-HL
Plaintiff,

OPINION AND ORDER

v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.
_________________________________________
HALLMAN, United States Magistrate Judge:
Plaintiff Paul J. brings this action under the Social Security Act (the “Act”), 42 U.S.C. §
405(g), to obtain judicial review of a final decision of the Commissioner of Social Security
(“Commissioner”). The Commissioner denied plaintiff’s application for Disability Insurance
Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, the
decision of the Commissioner is AFFIRMED.
1

In the interest of privacy, this Opinion uses only the first name and the initial of the last name
for non-governmental parties and their immediate family members.
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STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration’s
disability determinations: “The court shall have power to enter . . . a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 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) (quotation
omitted). The court must weigh “both the evidence that supports and detracts from the
[Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “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.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (holding that the court
“must uphold the ALJ’s decision where the evidence is susceptible to more than one rational
interpretation”). “[A] reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d
625, 630 (9th Cir. 2007) (quotation omitted).
BACKGROUND
I.

Plaintiff’s Application
Plaintiff alleges disability based an L5 SI disc herniation, sciatic nerve pain in his legs,

limited mobility, and obesity. Tr. 126.2 At the time of his alleged onset date, he was 43 years

2

Citations to “Tr.” are to the Administrative Record. (ECF 11).

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old. Id. Plaintiff has a high school education. Tr. 371. He has past relevant work experience as a
heavy truck driver, general foundry worker, and home attendant. Tr. 111. Plaintiff protectively
applied for DIB on August 28, 2019, alleging an onset date of May 18, 2015. Tr. 126, 295-98.
His application was denied initially on February 18, 2020, and on reconsideration on July 2,
2020. Tr. 135, 156, 171-76. Plaintiff subsequently requested a hearing, which was held on
August 25, 2021, before Administrative Law Judge (“ALJ”) Linda Thomasson. Tr. 35. Plaintiff
appeared and testified at the hearing, represented by counsel. Tr. 35-59. With the assistance of
counsel, plaintiff amended his alleged onset date to February 1, 2018. Tr. 70. A vocational expert
(“VE”), Sharon Thomas, also testified. Tr. 35. On September 29, 2021, the ALJ issued a decision
denying plaintiff’s claim. Tr. 29. Plaintiff requested Appeals Council review, which was denied
on September 12, 2022. Tr. 1-7, 283-85. Plaintiff then sought review before the Court.3
II.

Sequential Disability Process
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 process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At
step one, the Commissioner determines whether a claimant is engaged in “substantial gainful

3

The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §
636. (ECF 3).

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activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 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). A severe impairment is one “which significantly limits [the claimant’s]
physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal “one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the
claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at
141. At this point, the Commissioner must evaluate medical and other relevant evidence to
determine the claimant’s “residual functional capacity” (“RFC”), an assessment of work-related
activities that the claimant may still perform on a regular and continuing basis, despite any
limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c).
At step four, the Commissioner determines whether the claimant can perform “past
relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n. 5.
Finally, at step five, the Commissioner must establish that the claimant can perform other
work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§

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404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. §§ 404.1566, 416.966.
III.

The ALJ’s Decision
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful

activity after his alleged onset date through his date last insured of December 31, 2020. Tr. 19.
At step two, the ALJ determined that plaintiff has the following severe impairments:
“spine disorder and obesity.” Id.
At step three, the ALJ determined that plaintiff’s impairments did not meet or medically
equal the severity of a listed impairment. Tr. 22. The ALJ then resolved that plaintiff had the RFC
to do light work with the following limitations:
He could lift/carry 20 pounds occasionally and 10 pounds frequently. He
could sit up to 6 hours in an 8-hour workday, but no longer than 60 minutes at one
time without standing or walking 1-2 minutes, and could stay at his workstation.
He could stand 3 hours in an 8-hour workday, but no longer than 40 minutes at
one time, and then would need to sit 2-3 minutes. He could walk 3 hours in an 8hour workday, but no longer than 30 minutes at one time, and then would need to
it 2-3 minutes. He could stand and walk a combined total of 6 hours. He could
occasionally climb ramps and stairs with a rail, and could occasionally kneel. He
could occasionally crouch or stoop, but not repetitively, that is, not more than 2-3
times in a row without a period of not doing those postural activities for 45
minutes. He could not climb ladders, ropes, or scaffolds, and could not crawl. He
could not be exposed to vibration, to hazards such as moving mechanical parts,
dangerous equipment, or unprotected heights, or to extreme cold.
Tr. 23.
At step four, the ALJ found that plaintiff could not perform any past relevant work. Tr.
27.
But at step five—considering plaintiff’s age, education, work experience, and RFC—the
ALJ found that a significant number of jobs existed in the national economy that plaintiff could
perform including work as a parking lot attendant, office helper, and mail clerk. Tr. 28. Thus, the
ALJ concluded that plaintiff is not disabled. Tr. 29
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DISCUSSION
Plaintiff first asserts that the ALJ erred at step two by improperly finding plaintiff's
mental impairments were non-severe. Plaintiff argues that the ALJ erred by “failing to identify,
consider, and properly evaluate [plaintiff’s] medically determinable severe and non-severe
impairments at step two.” Pl.’s Opening Br. 4. More specifically, plaintiff asserts that the ALJ
simply disregarded plaintiff’s testimony regarding his mental health, ignored and
mischaracterized medical evidence supporting the severity of his mental impairments, and failed
to address how plaintiff’s physical impairments contribute to his mental dysfunction. Pl.’s
Opening Br. 5-15.
The Commissioner asserts that the ALJ properly found plaintiff’s mental impairments
non-severe. The Commissioner explains that plaintiff’s testimony about his panic attacks was
given in April 2021, four months after the expiration of plaintiff’s insured status. Def.’s Resp.
Br. 11 (citing Tr. 60, 292). The Commissioner argues that plaintiff did not allege disabling
mental impairments prior to the hearing, and that plaintiff’s medical records and lack of ongoing
mental health treatment during the relevant period, support the ALJ’s conclusion that plaintiff’s
mental health impairments were not severe. Def.’s Resp. Br. 11 (citing Tr. 309-12, 318).
For the reasons discussed below, the Commissioner’s decision denying plaintiff’s claim
is affirmed.
I.

Standards
At step two, the ALJ determines whether the claimant has an impairment, or combination

of impairments, that is both medically determinable and severe. 20 C.F.R. § 404.1520(c). An
impairment is medically determinable if it is diagnosed by an acceptable medical source and
based upon acceptable medical evidence. 20 C.F.R. § 404.1520(c). An impairment is severe if it

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significantly limits the claimant's ability to do basic work activities. 20 C.F.R. § 404.1520(c).
The step two threshold is low; the Ninth Circuit describes it as a “de minimus screening device
to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
As such, any “error at step two [is] harmless [if] step two was decided in [the claimant's] favor
with regard to other ailments.” Mondragon v. Astrue, 364 Fed. Appx. 346, 348 (9th Cir. 2010)
(citing Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)).
In making this severity determination, the ALJ is required to first establish the existence
of a medically determinable mental impairment using a Psychiatric Review Technique (PRT), 20
C.F.R. § 416.920a (b). Subsequently, the ALJ must rate the degree of limitation for four
functional areas (activities of daily living; social functioning; concentration, persistence or pace;
and episodes of decompensation). 20 C.F.R. § 416.920a (c). The ALJ must then determine the
severity of the mental impairment based in part on the degree of functional limitation. 20 C.F.R.
§ 416.920a (d). So long as the ALJ rates the limitations caused by the mental impairments for the
four functional areas, the ALJ need not document the considerations underlying its
findings. Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007).
II.

Application
Here, the ALJ found that plaintiff had a number of medically determinable and severe

physical impairments at step two. Tr. 19. Concerning plaintiff’s depressive disorder and anxiety
disorder, the ALJ determined they were medically determinable but not severe because his
mental impairments “did not cause more than minimal limitation in the claimant’s ability to
perform basic mental work activities…” Id.

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Plaintiff testified that he was unable to work due to back and leg pain. Tr. 70. When the
ALJ asked him about his mental health, he stated that it had been “deteriorating as of last year”
and he had anxiety which made it difficult to leave the house “as far as planned arrangements
and things like that.” Tr. 71. Plaintiff also testified that he had anxiety attacks five to six times a
week, and that he was prescribed Cymbalta. Tr. 74-75.
The ALJ adequately evaluated plaintiff’s testimony, and properly applied the PRT when
assessing plaintiff’s mental impairments at step two. Regarding the first functional area of
understanding, remembering, or applying information, the ALJ discussed how plaintiff’s active
lifestyle demonstrates that he has no limitation in this functional area. Specifically, the ALJ
discussed how plaintiff was going to the gym regularly and partaking in household chores and
yardwork. Tr. 20 (citing Tr. 442, 453, 461). The ALJ explained that plaintiff went on a cruise to
Mexico in 2019, and took trips to Las Vegas in 2020 and 2021. Tr. 20 (citing Tr. 444, 599, 648).
Plaintiff asserts that the ALJ mischaracterized medical evidence that corroborate his testimony,
specifically citing only to the ALJ’s reliance on plaintiff’s trip to Las Vegas and how he
experienced “extreme anxiety” during the trip. Pl.’s Opening Br. 12, (citing Tr. 648). However,
the Commissioner argues that it is notable that plaintiff’s anxiety was not so significant that it
precluded travel. Def.’s Resp. Br. 15. The court agrees.
Regarding the second functional area of interacting with others, the ALJ correctly found
that plaintiff was not limited in this area. The ALJ acknowledged plaintiff’s reported issues such
as anger and difficulty dealing with family stressors, but ultimately concluded that the medical
evidence and his active lifestyle indicated that he was not limited in this area. Tr. 20.
Specifically, the ALJ cited to medical records where plaintiff was consistently pleasant and
cooperative, and exhibited normal speech and behavior. Tr. 20 (citing Tr. 440-45, 453, 26, 461,

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608, 615-16, 624, 633-34). The ALJ also discussed how plaintiff was able to spend time with his
family and go on vacations, run errands, and establish good rapport with doctors. Tr. 20 (citing
Tr. 309-12, 444-45, 599).
Regarding the third functional area of concentrating, persisting, and maintain pace, the
ALJ reasonably found that plaintiff had a mild limitation in this area. Tr. 20. Plaintiff asserts that
the ALJ did not consider how his physical impairments exacerbated his mental impairments, and
that when taken together they should have been found severe. Pl.’s Opening Br. 8-10. However,
the ALJ did address how plaintiff’s anxiety and depression increased when he was faced with
stressors such as difficulty in his relationships or occasional flares of back pain. Tr. 20. The ALJ
also acknowledged that plaintiff’s anxiety increased in 2020 due to “recent world
circumstances,” and that his anxiety symptoms may have affected his concentration at times. Tr.
20 (citing 438-444, 608). However, to support his conclusion that plaintiff was only mildly
limited in this functional area, the ALJ discussed how plaintiff was still being able to accomplish
his activities of daily living, travel, and how he was considering starting his own business. Tr. 20
(citing 443, 461, 599, 309-312). All of these activities are inconsistent with plaintiff’s testimony
regarding his mental health.
Regarding the fourth functional area of adapting or managing oneself, the ALJ correctly
concluded that plaintiff was not limited in this area given his daily activities, normal mood and
affect, and how he did not exhibit problems with temper control. Tr. 20 (citing 440-45, 453, 461,
592, 608, 615-16, 624, 633). Therefore, the ALJ correctly conducted the PRT analysis and
adequately discussed plaintiff’s testimony and the medical record.
The ALJ then went on to analyze the medical opinion evidence, and correctly determined
that the medical opinion evidence in the record does not support a finding that plaintiff’s mental

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impairments are severe. Tr. 20. Dr. Bethany Higa, Psy.D wrote a letter on plaintiff’s behalf in
May 2021 expressing her belief that plaintiff had “PTSD related to a work incident that occurred
in 2003” and experienced anxiety secondary to his PTSD, but that plaintiff’s “PTSD symptoms
were unlikely to interfere with the rigors of being a live organ donor.” Tr. 641. Dr. Higa later
completed a mental functional assessment in July 2021, and assessed that plaintiff had marked
limitations in his ability to sustain concentration, persistence, and pace, and to interact with
others. Tr. 728. Dr. Higa opined that plaintiff would be off task ten percent of a normal
workweek and would miss work at least two days per month due to his mental healthy
symptoms. Id. She reported that plaintiff “should function relatively well in the context of
working alone in a highly predictable environment,” but that when he “gets emotionally flooded
and panicky he would likely take a day off work” Tr. 730. The ALJ found both of Dr. Higa’s
documents not persuasive but determined that the letter has some value when considered along
with the July 2021 assessment. Tr. 21. The ALJ explained that Dr. Higa’s assessment of marked
mental limitations is inconsistent with her statement two months prior that where she said that
plaintiff’s mental impairment would not affect his ability to handle the “rigors” of organ
donation. Tr. 21 (citing Tr. 641). The ALJ reasonably determined that Dr. Higa’s medical
opinion is inconsistent and unsupported by her own treatment records. Tr. 21.
CONCLUSION
Based on the foregoing, pursuant to 42 U.S.C. § 405(g), sentence four, the Court
AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
DATED this 14th day of November, 2023.
___________________________
ANDREW HALLMAN
United States Magistrate Judge
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