Ostrander v. Commissioner Social Security Adminstration
Filing
13
OPINION AND ORDER. For these reasons, the Court AFFIRMS the final decision of the Commissioner and DISMISSES this action with prejudice. IT IS SO ORDERED. Signed on 04/26/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Portland Division
THOMAS A. OSTRANDER
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
DAVID W. HITTLE
388 State St., Suite 810
Salem, OR 97301
(503) 371-3844
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1
- OPINION AND ORDER
6: 11-CV-06213-MA
OPINION AND ORDER
KATHY REIF
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 MS/901
Seattle, WA 98104-7075
(206) 615-3851
Attorneys for Defendant
MARSH, Judge.
Plaintiff Thomas Ostrander seeks judicial review of the
Commissioner's final decision denying his application for
Supplemental Security Income (SSI) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-83f.
This Court has jurisdiction
to review the Commissioner's decision under 42 U.S.C. § 405(g).
Plaintiff claims he has been disabled since January 1, 1991,
because of Attention Deficit Hyperactivity Disorder (ADHD), poor
vision in his left eye, and bad knees.
His claim was denied
initially and on reconsideration.
On August 3, 2010, the Administrative Law Judge (ALJ) held
an administrative hearing at which plaintiff and a vocational
expert testified.
On August 6, 2010, the ALJ issued a Decision finding
plaintiff has a severe learning disorder but is not disabled
because he is able to perform jobs involving unskilled work.
On June 10, 2011, the Appeals Council denied plaintiff's
request for review.
The ALJ's decision, therefore, is the
Commissioner's final decision for purposes of judicial review.
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- OPINION AND ORDER
Plaintiff seeks an Order reversing the Commissioner's final
decision and awarding plaintiff benefits.
In the alternative,
plaintiff seeks an Order remanding this matter for further
proceedings.
For the reasons that follow, the Court AFFIRMS the final
decision of the Commissioner and DISMISSES this action with
prejudice.
THE ALJ'S FINDINGS
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled.
Yuckert, 482 U.S.137, 140 (1987).
Bowen v.
See also 20 C.F.R. § 416.920.
Plaintiff bears the burden of proof at Steps One through Four.
See Tackett v. Apfel, 180 F. 3d 1094, 1098 (9 th Cir. 1999).
Each
step is potentially dispositive.
At Step One, the ALJ found plaintiff has not engaged in
substantial gainful activity since he applied for SSI on January
9, 2008.
At Step Two, the ALJ found plaintiff has a severe learning
disorder under 20 C.F.R.
§
416.920(c), which significantly limits
his ability to do basic work activities.
At Step Three, the ALJ found plaintiff's impairment does
not meet or equal any listed impairment.
He has the residual
functional capacity (RFC) to perform a full range of work at all
exertional levels which is limited to repetitive tasks involving
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- OPINION AND ORDER
simple instructions, and is consistent with unskilled work that
does not require more than occasional contact the general public.
Plaintiff would require verbal instruction.
written instructions
would need to be read aloud to him.
At Step Four, the ALJ found that plaintiff has no past
relevant work.
At Step Five, the ALJ found plaintiff is able to perform
jobs that rely on demonstration and verbal direction rather than
written instructions, such as a sweeper/cleaner and hand packager
(medium/unskilled) and small product assembler (light/unskilled).
Accordingly, the ALJ found plaintiff is not disabled and,
therefore, is not entitled to SSI.
LEGAL STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Roberts v. Shalala, 66 F.3d 179, 182
(9 th Cir. 1995), cert. denied, 517 U.S. 1122 (1996).
To meet
this burden, the claimant must demonstrate the 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."
42 U.S.C
§
423(d)(1)(A).
The court must affirm the Commissioner's decision if the ALJ
applied proper legal standards and made findings supported by
substantial evidence in the entire record.
4 - OPINION AND ORDER
42 U.S.C. § 405(g).
"Substantial evidence" is "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."
Andrews v. Shalala, 53 F.3d 1035, 1039
(9~
Cir.
1995) .
The court must weigh all of the evidence whether it supports
or detracts from the Commissioner's decision.
Heckler, 807 F.2d 771, 772 (9 th Cir. 1986).
Martinez
V.
The Commissioner's
decision must be upheld, however, even if the "evidence is
susceptible to more than one rational interpretation."
Andrews,
53 F.3d at 1039-40.
The Commissioner bears the burden of developing the record.
DeLorme
V.
Sullivan, 924 F.2d 841, 849 (9 th Cir. 1991).
The duty
to further develop the record, however, is triggered only when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.
276 F.3d 453, 459-60
(9~
Mayes
V.
Massanari,
Cir. 2001).
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.
Harman
V.
Apfel, 211 F.3d 1172, 1178 (9 th Cir.), cert.
denied, 121 S. Ct. 628 (2000).
"If additional proceedings can
remedy defects in the original administrative proceeding, a
social security case should be remanded."
654 F.2d 631, 635 (9 th Cir. 1981).
5 - OPINION AND ORDER
Lewin
V.
SChweiker,
DISCUSSION
Plaintiff asserts the ALJ erred in finding plaintiff has
a high school education, completed his GED, and is able to
communicate effectively in English.
Plaintiff also asserts the
ALJ improperly ignored evidence presented by Jayne Teel, one of
plaintiff's teachers.
1.
Plaintiff's Testimony.
On the date of the administrative hearing, plaintiff was
20 years old.
He is 6'5" tall and weighs 380 Ibs.
He alleges
he is unable to perform simple, routine work on a sustained basis
primarily because of organic mental issues adversely impacting
his intellectual functioning, and secondarily, because he suffers
from Osgood Schlatter's Disease, which causes knee pain.
Plaintiff lives with his mother.
He attended special
education classes throughout high school and received a modified
diploma.
He has difficulty reading words longer than six letters
and his writing is poor.
Plaintiff asserts he had difficulty
doing homework throughout high school because he did not have a
teacher to guide him.
He reads at first grade level and has
second grade level arithmetic skills.
He has difficulty
completing tasks in a timely manner.
Plaintiff has been prescribed Adderall for Attention Deficit
Disorder.
It made him sleepy.
6 - OPINION AND ORDER
When he was younger, plaintiff had a short temper and became
angry if others picked on him.
He got along with some teachers
but others thought he was not doing school work the way he should
and he was too easily distracted.
He got upset when teachers
treated him as if he was a two-year-old.
When he was frustrated,
plaintiff would just stop doing what he was supposed to do.
Plaintiff has two or three friends and some acquaintances at
church.
He played basketball at his church in 10 th and 11th grade
and then aged out of the program.
Plaintiff has a drivers license.
He was able to pass the
written portion of the test with the help of his teachers after
three tries.
He drives his father around but needs a map for
directions because he cannot read road signs.
He has only
peripheral vision in his left eye.
Plaintiff has never held a wage-earning job and believes he
is not capable of working full-time because he lacks reading
skills and is unable to do what he's told to do, and because of
knee problems.
Plaintiff has several friends with whom he watches movies
and television, and he plays basketball.
2.
Vocational Expert.
A vocational expert testified that a person who has a
modified high school diploma, no work history, no exertional
limitations or physical restrictions, but who should not have
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OPINION AND ORDER
concentrated exposure to hazards because of eyesight problems,
and is limited to unskilled work performing routine repetitive
tasks with simple verbal instructions accompanied by explanation
of written material, and only occasional public interaction,
would be able to perform the jobs of industrial sweeper/cleaner,
hand-packager, and small products assembler.
Such a person would
not be able to perform those jobs if he was unable to perform
assigned tasks one-third of the time because of difficulty
sustaining attention and pace on a regular, daily basis, and/or
because his work would need to be monitored by a supervisor at
least one-third of the time, and/or because he would miss work
more than two days each month.
3.
Jayne Teel - High School Teacher.
Ms. Teel was one of plaintiff's high school teachers for
two and one-half years as well as his LRC case manager.
In
January 2008, when plaintiff was in 12th grade, she noted he was
a beginning reader with first grade written language skills and
second grade math skills.
His attendance was "terrible."
He had
"very serious" problems on an hourly basis, inter alia, paying
attention, carrying out simple and more complex instructions,
completing homework, being a distraction, playing cooperatively
with other children, following rules, obeying adult authority
figures, and conversing appropriately with others.
"unable to read and [was) very unmotivated."
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OPINION AND ORDER
He was
Ms. Teel was not sure whether plaintiff's problems were "by
choice or by actual disability."
Plaintiff's grade slips
reflect his high school grade point average for the four
semesters from 9 th grade in 2005 to
4.
11th
grade in 2007 was 1.78.
Robert A. Kruger, Ph.D. - Psychologist.
In January 2004, Dr. Kruger examined plaintiff on behalf of
the Commissioner.
old.
At the time, plaintiff was almost 14 years
On IQ testing, plaintiff "maximized his performance and was
truthful in his responses."
in the
4th
His verbal score was 74, placing him
percentile (borderline range), his performance score
was 96, placing him in the 39 th percentile (average range), and
his full scale score was 83, placing him in the 13 th percentile
(borderline range).
On WRAT-lll testing Plaintiff has 2 nd grade
reading and spelling abilities and 3 rd grade arithmetic ability.
Dr. Kruger diagnosed plaintiff as having a reading disorder and a
GAF score of 70 (some difficulty in social and occupational or
school functioning).
In January 2008, Dr. Kruger re-tested plaintiff's reading
and arithmetic abilities, and opined plaintiff still had 2 nd
grade reading and 3 rd grade arithmetic ability, placing him the
<1 st percentile.
Dr. Kruger noted plaintiff was pleasant, mild-
mannered and "seemingly provid[edj his optimum performance."
"overall attention ability and capability of sustaining his
9 - OPINION AND ORDER
His
attention on brief, basic, routine, repetitive tasks" was "fair,"
and he "would be able to complete those tasks adequately within
an appropriate period of time."
Dr. Kruger diagnosed Learning
Disorder NOS with limited reading abilities.
5.
Kurt Brewster, M.D. - Internal Medicine.
In March 2008, Dr. Brewster examined plaintiff on behalf of
the Commissioner in regard to plaintiff's poor vision in his left
eye and bad knees.
satisfactory.
Plaintiff was cooperative and his effort was
Dr. Brewster opined plaintiff's knee pain was
consistent with classic "growth spurt and organized sports" and
"would respond to conservative measures."
Plaintiff's left eye,
however, has "potential for some visual deficits."
Dr. Brewster opined plaintiff was capable of walking and
standing for 6 hours in an 8-hour workday, with 15 minute breaks
every two hours, and he may have occasional height restrictions.
6.
Martin Kehrli, M.D. - Internal Medicine.
Sharon Eder, M.D. - Internal Medicine.
Dr. Kehrli and Dr. Eder reviewed plaintiff's medical records
and concluded plaintiff has non-severe physical impairments,
primarily pertaining to his vision.
7.
Dorothy Anderson, Ph.D. - Psychologist.
Robert Henry, Ph.D. - Psychologist.
Dr. Anderson reviewed plaintiff's medical records and opined
plaintiff has a learning disorder and is moderately limited in
10 - OPINION AND ORDER
his ability to understand, remember, and carry out detailed
instructions, to maintain attention and concentration for
extended periods, and to interact appropriately with the general
public.
As such, plaintiff has mild restrictions in activities
of daily living and maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence, or pace,
Dr. Henry concurred in Dr. Anderson's opinion.
ANALYSIS
1.
Plaintiff's Eduoation Level.
Plaintiff argues the ALJ erred in finding plaintiff has a
high school education and completed his GED.
In support of this
argument, plaintiff notes that he tests out at a
2~
level regarding his reading and arithmetic skills.
or
3~
grade
The court
disagrees.
The record indisputably supports the ALJ's finding that
plaintiff "has a high school education- and that he participated
"in special education classes throughout high school.-
That
finding is supported by plaintiff's high school transcripts, and
the evidence provided by his high school teacher, Jayne Teel.
Moreover, there is no dispute that plaintiff was also awarded a
GED.
The issue, however, is not whether he achieved those
milestones, but whether the evidence as a whole reflects he is
incapable of substantial gainful activity despite doing so.
11- OPINION AND ORDER
2.
Plaintiff's Ability to Communicate in English.
Plaintiff argues the ALJ erred in finding plaintiff is able
to communicate in English.
The court disagrees.
The transcript
of the hearing reflects plaintiff understood the questions asked
of him by the ALJ and responded to them appropriately.
While
there is no doubt plaintiff's skills in reading and writing
English is at a low grade level, the vocational expert opined
that plaintiff would still be able to perform the. jobs of
industrial sweeper/cleaner, hand-packager, and small products
assembler.
Plaintiff has not presented any evidence to the
contrary.
3.
Evidence of Plaintiff's Teacher.
Plaintiff argues the ALJ failed to consider the evidence
presented by plaintiff's teacher, Jayne Teel, that plaintiff had
difficulty paying attention, carrying out simple and more complex
instructions, completing his homework, and being a distraction.
In addition, his attendance was "terrible."
The court concludes plaintiff's characterization of his
difficulties during high school is fair, but the court notes
Ms.
Teel also stated she was not sure whether plaintiff's problems
were "by choice or by actual disability."
On this record, the court concludes there is substantial
evidence to support the ALJ's findings, and the Commissioner's
final decision, that plaintiff has the intellectual capacity to
12 - OPINION AND ORDER
engage in substantial gainful activity that involves repetitive
tasks, with simple verbal instructions, and only occasional
contact the general public.
The court also concludes the record
regarding plaintiff's ability to play basketball through high
school belies his claim that he has a knee impairment that would
preclude him from performing jobs such as industrial sweeper/
cleaner, hand-packager, and small products assembler.
CONCLUSION
For these reasons, the Court AFFIRMS the final decision of
the Commissioner and DISMISSES this action with prejudice.
IT IS SO ORDERED.
DATED thisl'day of April, 2012.
k~~~~
MALCOLM F. MARSH
United States District Judge
13- OPINION AND ORDER
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