Morgan v. Commissioner Social Security Administration
Filing
29
Opinion and Order. The Commissioner's decision is based on substantial evidence and the proper legal standard, and is therefore, affirmed. This case is dismissed. Signed on 7/7/2011 by Chief Judge Ann L. Aiken. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENZEL K. MORGAN,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Susan D. Isaacs
4915 SW Griffith Dr., Suite 105
Beaverton, OR 97005
Linda S. Ziskin
P.O. Box 2237
Lake Oswego, OR 97035
Attorneys for plaintiff
Dwight C. Holton
United States Attorney
District of Oregon
Adrian L. Brown
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, Oregon 97204
David R. Johnson
Special Assistant U.S. Attorney
Office of General Counsel
PAGE 1 - OPINION AND ORDER
Civil No. 10-187-AA
OPINION AND ORDER
Social Security Administration
701 Fifth Avenue, Suite 2900 MIS 901
Seattle, Washington 98104
Attorneys for defendant
AIKEN, Chief Judge:
Plaintiff, Denzel Morgan, brings this action pursuant to the
Social Security Act (the Act), 42 U.S.C.
405(g), to obtain
§
judicial review of a final decision of the Commissioner.
The
Commissioner denied plaintiff's application for Title II
disability insurance benefits (DIB) under the Act.
For the
reasons set forth below, the Commissioner's decision is affirmed
and this case is dismissed.
PROCEDURAL BACKGROUND
On January 27, 2003, plaintiff protectively filed an
application for DIB.
Tr. 73.
After the application was denied
initially and upon reconsideration, plaintiff timely requested a
hearing before an administrative law judge (ALJ).
On August 24,
2005, an ALJ hearing was held before the Honorable Ralph W.
Jones.
Tr. 508-33.
At the hearing, testimony was taken from
plaintiff, a medical expert, and a vocational expert.
Id.
On
September 22, 2005, ALJ Jones issued a decision finding plaintiff
not disabled within the meaning of the Act.
Tr. 39.
After the
Appeals Council declined to review the ALJ decision, plaintiff
appealed to the court.
That litigation resulted in a settlement offer by the
Commissioner to remand the case, pursuant to the terms of the
stipulated agreement.
See Order for Remand, Case No. 3:06-CV-
1182-MO, July 6, 2007;
~
PAGE 2 - OPINION AND ORDER
also Tr. 569.
On remand, a new
administrative hearing was held before the Honorable Linda R.
Haack on June 12, 2008.
Tr. 824-85.
Medical testimony was taken
at that hearing from Drs. Robert McDevitt and David Rullman.
824-884.
Tr.
On January 7, 2009, after plaintiff underwent two
consultive examinations to further develop the record, a second
hearing was held with ALJ Haack, wherein no additional testimony
was heard.
Tr.
886-7.
On June 3, 2009, ALJ Haack issued a
decision finding that plaintiff failed to prove that she had a
severe impairment on or before the date last insured (D1I).
549-64.
Tr.
Therefore, A1J Haack found plaintiff not disabled within
the meaning of the Act.
Tr. 564.
After unsuccessfully
submitting Exceptions to the Appeals Council, plaintiff filed a
complaint in this Court.
Tr. 5-7.
STATEMENT OF THE FACTS
Born May 20, 1967, plaintiff was 33 years old on the alleged
onset date of disability, 38 years old on the date of the first
hearing, 41 years old on the date of the second hearing, and 42
years old at the time of the third hearing.
Tr. 71.
Plaintiff
dropped out of high school during her freshman year, but later
earned her GED.
Tr. 797.
From August 1998, to September 2002,
plaintiff performed administrative tasks at a church where her
husband was a pastor.
Tr. 99.
Plaintiff also has past relevant
work experience as a department store photographer, cashier, and
office manager.
Tr. 28, 99.
Plaintiff alleges disability beginning November 15, 2000,
due to fibromyalgia, depression, migraines, adrenal fatigue, and
PAGE 3
OPINION AND ORDER
anxiety.
Tr. 552-3; Plf.'s Opening Brf. at pg. 2.
September 30, 2002.
Her D1I was
Tr. 550.
STANDARD OJ!' REVIEW
This Court must affirm the Secretary's decision i f i t is
based on proper legal standards and the findings are supported by
substantial evidence in the record.
498, 501 (9th Cir. 1989).
mere scintilla.
Hammock v. Bowen, 879 F.2d
Substantial evidence is "more than a
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) (quoting
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
The court must weigh "both the evidence that supports and
detracts from the Secretary's conclusions."
Martinez v. Heckler,
807 F.2d 771, 772 (9th Cir. 1986).
The initial burden of proof rests upon the claimant to
establish disability.
(9th Cir. 1986).
Howard v. Heckler, 782 F.2d 1484, 1486
To meet this burden, plaintiff must demonstrate
an "inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
to last for a continuous
impairment which can be expected .
period of not less than 12 months.
§
"
42 U.S.C.
423 (d) (1) (A) .
The Secretary has established a five-step sequential process
for determining whether a person is disabled.
482 U.S. 137, 140 (1987); 20 C.F.R.
§§
Bowen v. Yuckert,
404.1502, 416.920.
the Secretary determines whether a claimant is engaged in
PAGE 4
OPINION AND ORDER
First,
"substantial gainful activity."
disabled.
If so, the claimant is not
Yuckert, 482 U.S. at 140; 20 C.F.R.
§§ 404.1520(b), 416.920(b).
In step two the Secretary determines whether the claimant
has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; see 20 C.F.R.
§§ 404.1520(c), 416.920(c).
If not, the claimant is not
disabled.
In step three the Secretary determines whether the
impairment meets or equals "one of a number of listed impairments
that the Secretary acknowledges are so severe as to preclude
substantial gainful activity."
§§ 404.1520(d), 416.920(d).
Id.; see 20 C.F.R.
If so, the claimant is conclusively
presumed disabled; if not, the Secretary proceeds to step four.
Yuckert, 482 U.S. at 141.
In step four the Secretary determines whether the claimant
can still perform "past relevant work."
§§ 404.1520(e), 4l6.920(e).
disabled.
20 C.F.R.
If the claimant can work, she is not
If she cannot perform past relevant work, the burden
shifts to the Secretary.
In step five, the Secretary must establish that the claimant
can perform other work.
Yuckert, 482 U.S. at 141-42;
C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f).
~
20
If the Secretary
meets this burden and proves that the claimant is able to perform
other work which exists in the national economy, she is not
disabled.
20 C.F.R. §§ 404.1566, 416.966.
PAGE 5 - .OPINION AND ORDER
DISCUSSION
I.
The ALJ's Findings
At step one of the five-step sequential evaluation process
outlined above, ALJ Haack found that plaintiff had not engaged in
substantial gainful activity since the alleged onset date.
552, Finding 2.
This finding is not in dispute.
Tr.
At step two,
the ALJ found that plaintiff did not have any severe impairments
on or before September 2002, the DLI.
Tr. 552, Finding 3.
Accordingly, the ALJ found that plaintiff was not disabled and
denied benefits.
II.
Tr. 564.
This finding is in dispute.
Plaintiff's Allegations of Error
Plaintiff's primary allegation of error is that the ALJ
failed to follow this District's remand order in subsequent
proceedings.
See Plf.'s Opening Brf. at pg. 14.
Plaintiff also
alleges that ALJ Haack erred by 1) rejecting lay witness
statements; and 2) finding plaintiff's physical and mental
impairments to be non-severe.
A.
Failure to Follow the Remand Order
Plaintiff asserts that ALJ Haack failed to follow the remand
order because her findings differed from that of ALJ Jones.
Plf.'s Opening Brf. at pg. 14; plf.'s Reply Brf. at pg. 2.
However, plaintiff does not specifically elaborate how these
differences evidenced a failure to follow the remand order.
Accordingly, this Court need not address this argument.
See
Carmickle v. Commissioner, 533 F.3d 1155, 1161 & n.2 (9th Cir.
2008)
PAGE 6
(U[wle do not address this finding because [plaintiff]
OPINION AND ORDER
failed to argue this issue with any specificity in his
briefing"} .
Regardless, I find that the ALJ complied with the remand
order.
In relevant part, the remand order required that the ALJ
are-evaluate the medical evidence to assess the severity of
[p]laintiff's impairments and any resulting limitations; reevaluate the credibility of [p]laintiff's subjective complaints;
[and] further evaluate the lay testimony."
Order for Remand,
Case No. 3:06-CV-1182-MO, July 6, 2007.
This is precisely what occurred.
The first hearing with ALJ
Haack lasted over two hours and involved thorough testimony from
two medical experts.
Tr. 826-84.
Afterward, the ALJ considered
additional medical evidence and obtained two consultive
examinations.
Tr. 705-818.
The second hearing with ALJ Haack
lasted over an hour and involved considerable discussion between
the ALJ and plaintiff's attorney regarding the medical evidence.
Tr. 887-915.
Subsequently, the ALJ obtained additional written
opinions from the medical experts and received an additional
opinion from Dr. Marc Lewis, plaintiff's treating physician.
823.
Tr.
Finally, the ALJ issued a comprehensive sixteen-page
opinion, in which she expressly addressed the severity of
plaintiff's impairments based upon the medical evidence, the
credibility of plaintiff's subjective complaints, and the lay
testimony.
Tr. 549-64.
Thus, the record demonstrates that the ALJ engaged in an
extensive evaluation of the medical evidence and of plaintiff's
PAGE 7
OPINION AND ORDER
alleged disability, in accordance with the express terms of the
remand order.
The record further shows that new evidence was
obtained and considered to reach a different result.
Therefore,
it is not surprising, nor is it grounds for reversible error,
that this re-evaluation resulted in findings divergent from those
of the first ALJ.
As such, I find no basis to overturn the ALJ's
decision for failure to follow the remand order.
B.
Third-Party Testimony
Plaintiff also alleges that the ALJ improperly rejected lay
testimony because the ALJ used a similar reason to discredit each
lay witness, thereby failing to give specific reasons "germane to
each declarant."
Plf.'s Opening Brf. at pg. 20.
Lay testimony regarding a claimant's symptoms or how an
impairment affects ability to work "is competent evidence that an
ALJ must take into account," unless the ALJ "expressly determined
to disregard such testimony and gives reasons germane to each
witness for doing so."
Cir. 2001).
specific.
~
Lewis v. Apfel, 236 F.3d 503, 511 (9th
The reasons "germane to each witness" must be
Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006);
also 20 C.F.R.
§§
404.1513(d) (4),
(e),
However, in rejecting
lay testimony, the ALJ need not cite to the specific record as
long as "arguably germane reasons" for dismissing the testimony
are noted, even though the ALJ does "not clearly link his
determination to those reasons," and substantial evidence
supports the ALJ's decision.
Lewis, 236 F.3d at 512.
Here, the record contains numerous written statements
PAGE 8 - OPINION AND ORDER
supporting plaintiff's claim of disability.
Tr. 561.
These
include statements from the plaintiff's sisters, Angela Sheets
and Connie Keel; adult son, Brad Morgan; husband, Jerry Morgan;
brother-in-law, Steve Sheets; and friends, Tina Spurlock, Steve
Spurlock, and Rebecca Talent.
Tr. 609-12, 146-55.
These letters
generally describe an individual who functioned well, but who now
exhibits difficulties with nearly all activities.
Id.
The ALJ separately addressed the statements of each of the
third-party witnesses, devoting a paragraph to each witness's
statement.
Tr. 562-4.
The ALJ noted that each statement was
provided well after the plaintiff was no longer insured.
Id.
Further, in each instance, the ALJ found that the statements
submitted were vague regarding the timing of the witnessed
behavior.
Id.
Because the statements were not concurrent
observations and because these observations were in no way linked
to past dates that occurred on or before the DLI, the ALJ
separately found that each statement did not establish a
medically determinable impairment within the relevant time
period.
Id.
Thus, while plaintiff is correct that the third-party
testimony was discredited for a similar reason, such a fact does
not, in and of itself, establish reversible error.
v. Commissioner, 574 F.3d 685, 694 (9th Cir. 2009)
See Valentine
(one germane
reason is sufficient to discredit statements from lay witnesses) .
Accordingly, I find that the ALJ provided germane and specific
reasons for rejecting the statements of each third-party witness.
PAGE 9 - OPINION AND ORDER
c.
The ALJ's Step Two Finding
Finally, plaintiff alleges that the ALJ erred in finding
plaintiff's physical and mental impairments to be non-severe.
Specifically, plaintiff argues that the ALJ erred
1) because the ALJ's
~finding
is unsupportable, as it was made
based on the same evidence relied upon by the first ALJ," who did
find that plaintiff had severe impairments; 2) by failing to
consider the effects of plaintiff's non-severe impairments in
assessing her ability to work; 3) by failing to fully address the
Appeals Council Remand Order (the
~Order"),
in which plaintiff's
gallbladder and IBS impairments were found to be severe; and
4) by determining that plaintiff's fibromyalgia and mental
impairments were non-severe.
1.
Plf.'s Opening Brf. at pg. 15.
Medical Evidence
Contrary to plaintiff's assertion, ALJ Haack did not base
her opinion on the same evidence as ALJ Jones.
As discussed in
Section II(A), above, the record shows that ALJ Haack considered
extensive additional evidence, and explicitly found that "new
evidence obtained during these proceedings after remand" informed
her decision.
Tr. 552.
Therefore, plaintiff's allegation that
ALJ Haack relied on the same evidence as the prior ALJ to reach a
different conclusion is not supported by the record.
2.
Plaintiff's Non-Severe Impairments
The ALJ did not err by failing to consider the effects of
plaintiff's non-severe impairments in assessing her disability.
PAGE 10 - OPINION AND ORDER
At step two, the ALJ determined that plaintiff did not have any
severe impairments on or before the DLI, and therefore, was not
disabled.
Tr. 552-4, 564.
If a finding of non-disability is
made, "the SSA will not review the claim further."
Thomas, 540 U.S. 20, 24 (2003).
Barnhart v.
Therefore, the ALJ was not
required, after making a finding of non-disability, to address
plaintiff's non-severe impairments at subsequent steps of the
five-step analysis.
3.
The Appeals Council Order
Plaintiff mischaracterizes the Appeals Council's Order and
the ALJ's discussion of plaintiff's impairments.
The Order
simply restated the impairments that ALJ Jones found severe,
which were IBS, asymptomatic cholelithiasis, fibromyalgia, and
lumbar pain secondary to mild arthritis.
Tr. 38, Finding 3.
The
Appeals Council then noted that "the evidence of record does not
support a finding of severe fibromyalgia or impairment of the
lumbar spine prior to the date of the last insured."
Tr. 574.
However, the Order in no way affirmatively stated, as plaintiff
argues, that plaintiff's gallbladder problems and IBS are severe
impairments that must serve as a basis of disability.
Rather,
consistent with this District's remand order, ALJ Haack was
required to re-evaluate the medical evidence and make new
findings.
Further, the ALJ did address these impairments, and
determined that they were non-severe.
The ALJ noted a three
month period of complaints of occasional "abdominal pain
PAGE 11 - OPINION AND ORDER
beginning in March 2000."
Tr. 553.
However, plaintiff resolved
these problems and reported "having much less" discomfort in June
2000.
Tr. 185, 553.
Thereafter, plaintiff did not complain of
abdominal pain "for almost another 2 years."
Tr. 553, 560.
The ALJ noted that the recurrence of pain was again treated
successfully between February and May 2002.
Tr. 553-4.
treatment was not sought until well after the DLI.
Further
Tr. 554.
Because plaintiff's stomach problems did not last for a
continuous period of at least 12 months, the ALJ determined that
they were not severe.
(2002)
Barnhart v. Walton, 535 U.S. 212, 217
(both impairments and inability to work must last twelve
months to satisfy the definition of disability).
Therefore,
despite plaintiff's contentions to the contrary, the ALJ did not
"forget to make findings" regarding these impairments.
Additionally, I find that substantial evidence supports the ALJ's
finding.
Regardless, even assuming that the ALJ erred and both
impairments are severe, they still would not meet or equal a
listed impairment at step three, or prevent plaintiff from
returning to her past relevant work at step four.
Therefore, if
the ALJ had truly failed to address these impairments, it would
have been nonprejudicial to plaintiff.
have been harmless.
As such, the error would
Stout v. Comm'r of Soc. Sec, Admin., 454
F.3d 1050, 1055 (9th Cir. 2006) (mistakes that are "nonprejudicial
to the claimant or irrelevant to the ALJ's ultimate disability
conclusion" are harmless error).
PAGE 12 - OPINION AND ORDER
4.
Plaintiff's Fibromyalgia and Mental Impairments
Finally, and most importantly, substantial evidence supports
the ALJ's findings that plaintiff had no severe physical or
mental impairments on or before the DLI.
A plaintiff seeking DIB
bears the burden of proof and must show that she was
~either
permanently disabled or subject to a condition which became so
severe as to disable [her] prior to the date upon which [her]
disability insured status expired."
Armstrong v. Commissioner of
Social Sec. Admin., 160 F.3d 587, 589-90 (9th cir. 1998)
(interpreting 42 U.S.C.A.
§
423(c) and SSR 83-20).
However,
where the onset date of disability is unclear, the ALJ is
~required
to call a medical expert to assist in determining
exactly when various impairments of claimant seeking [DIB] became
disabling . . . before ALJ could infer onset date."
I.
1d.
Physical Impairments
It is undisputed that plaintiff's diagnosis of fibromyalgia
did not occur until after her insurance lapsed.
Opening Brf. at pg. 15.
Tr. 554; Plf.'s
However, plaintiff could still be
entitled to benefits if she presented medical evidence that would
enable the ALJ to
~reasonably
infer that the onset of a disabling
impairment(s) occurred some time prior to the date of the first
recorded medical examination."
~;
~
also SSR 83-20.
Plaintiff had ample opportunity during her second and third
hearings to point to any medical evidence that could be
interpreted as supporting a diagnosis of fibromyalgia prior to
September 2002.
However, plaintiff offered no such evidence
PAGE 13 - OPINION AND ORDER
other than her own subjective testimony, which was properly
discredited.
Tr. 900-5.
Because the onset date was unclear, ALJ Haack called two
medical experts, Drs. Robert McDevitt and David Rullman, to
assist in determining the onset date.
Dr. Rullman spoke to
plaintiff's physical disabilities and testified that while he
does not dispute plaintiff's 2003 diagnosis of fibromyalgia, he
found nothing in the record to suggest any functional limitations
on or before the DLI.
Tr. 866-74.
Accordingly, the ALJ found
that plaintiff had failed to show that she suffered from a severe
physical impairment during the relevant period.
Tr. 557-60, 564.
Based on the record, I find that the ALJ's determination that
plaintiff's physical impairments were non-severe on or before the
DLI is supported by substantial evidence.
ii.
Mental Impairments
Lastly, plaintiff asserts that both ALJ Jones and ALJ Haack
erred by finding plaintiff's mental impairments to be non-severe.
Plaintiff argues that such a finding was improper
~because
[the
ALJ] failed to consider that there may have been a psychological
basis for plaintiff's pain."
Plf.'s Opening Brf. at pg. 15-6.
As such, plaintiff maintains that she is at least entitled to
remand for further development of the record.
The possibility that there may have been a psychological
basis for the degree of plaintiff's symptoms is insufficient to
establish a limitation when there is a negative credibility
finding.
Thomas v, Barhart, 278 F.3d 947, 959 (9th Cir. 2002)
PAGE 14 - OPINION AND ORDER
("[hJaving determined that [plaintiff's] subjective complaints of
pain were not credible, the ALJ had no need to explore whether
[plaintiff's] pain was psychologically related, because pain is
subjective and depends on the credibility of the claimant").
Here, plaintiff does not dispute the ALJ's negative credibility
finding.
Tr. 559-61; Plf.'s Opening Brf. at pgs. 1-21.
Therefore, I find that the ALJ was not required to further
inquire as to whether plaintiff's pain was psychologically
related.
Moreover, the ALJ discussed in great detail the other
medical evidence relating to plaintiff's mental impairments.
The
only piece of psychological evidence in the record is a Mental
Status Report from Dr. Noval.
Tr. 242, 831.
There is no record
of plaintiff seeking any other psychological treatment before or
after her DLI.
Dr. Noval's report reflects that plaintiff was
treated for approximately one year, beginning on March 23, 2002,
for "sporadic groups of weekly sessions."
Tr. 242.
While Dr.
Noval opined that plaintiff had severe anxiety and depression,
she also stated that "patient reports feeling more in control of
her panic/anxiety and less depressed."
Tr. 242-3.
Dr. Noval
also noted that plaintiff was "capable of managing [activities of
daily living]" and reported "good relationships w/ spouse, son,
sister, and close friends."
Tr. 243.
Regardless, Dr. Noval
opined that "a consistent place of work in a supportive setting
is indicated" and "a structured environment is preferred."
244.
PAGE 15 - OPINION AND ORDER
Tr.
Efforts by plaintiff's attorney to re-contact Dr. Noval
failed, and as such, plaintiff was unable to determine if Dr.
Noval had made any additional notes during the relevant period.
Tr. 861.
Thus, remanding this case for further proceedings will
not resolve this insufficiency.
Regardless, both Drs. Rullman
and McDevitt testified that plaintiff's medical condition, at
most, caused mild limitations.
Tr. 557-8.
Mild psychological
impairments are appropriately considered non-severe.
20 C.F.R.
§
404.1520a(d) (1); see also Saelee v. Chater, 94 F.3d 520,522 (9th
Cir. 1996).
As such, I find that there is more than a scintilla of
evidence to support the ALJ's finding that plaintiff had failed
to establish any severe impairments on or before the date last
insured.
Further, I find that the ALJ's interpretation of the
record was based upon the correct legal standard.
Since ALJ
Haack's finding of non-disability at step two must be affirmed,
this Court declines to discuss plaintiff's other allegations of
error relating to subsequent steps of the five-step sequential
process.
CONCLUSION
The Commissioner's decision is based on substantial evidence
and the proper legal standard, and is therefore, affirmed.
case is dismissed.
III
III
III
PAGE 16 - OPINION AND ORDER
This
IT IS SO ORDERED.
Dated thie
~ay
of July 2011.
~AQJL~
Ann Aiken
United States District Judge
PAGE 17
OPINION AND ORDER
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