Reynolds v. Commissioner Social Security Administration

Filing 19

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 06/02/2014 by Judge Anna J. Brown. See attached 15 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KEVIN REYNOLDS,
Plaintiff,

6:13-cv-00637-BR
OPINION AND ORDER

v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.

MERRILL SCHNEIDER
Schneider Kerr & Gibney Law Offices
P.O. Box 14490
Portland, OR 97293
[phone]
Attorneys for Plaintiff

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER

S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
LARS J. NELSON
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Kevin Reynolds seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) payments under Title XVI
of the Social Security Act.

This Court has jurisdiction to

review the Commissioner's decision pursuant to 42 U.S.C.
§ 405(g).
Following a thorough review of the record, the Court AFFIRMS
the Commissioner's final decision and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed his application for SSI on August 20, 2010.

2 - OPINION AND ORDER

Tr. 157.2

The application was denied initially and on

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on September 6, 2011.

Tr. 22.

was represented by an attorney.
the hearing.

At the hearing Plaintiff

Tr. 22.

Plaintiff testified at

Tr. 22.

The ALJ issued a decision on January 13, 2012, in which he
found Plaintiff is not entitled to benefits.

Tr. 34.

That

decision became the final decision of the Commissioner on
August 24, 2012, when the Appeals Council denied Plaintiff's
request for review.

Tr. 6.

BACKGROUND
Plaintiff was born on June 18, 1967, and was 44 years old at
the time of the hearing.

Tr. 48, 157.

Plaintiff completed high

school and some vocational training in information technology.
Tr. 52, 287.

Plaintiff has past relevant work as a computer-chip

fabricator and a security-system installer.

Tr. 32, 52, 54.

Plaintiff alleges disability since August 20, 2010,3 due to
migraines, depression, chronic back pain, and dyslexia.

Tr. 174.

2

Citations to the official transcript of record filed by
the Commissioner on September 11, 2013, are referred to as “Tr.”
3

Plaintiff alleged an onset date of November, 1, 2006, in
his application, but he agreed to amend his alleged onset date to
August 20, 2010 at the hearing and waived his right to Disability
Insurance Benefits (DIB) under Title II of the Social Security
Act. Tr. 22, 66.
3 - OPINION AND ORDER

Except when 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
medical evidence.

See Tr. 25-32.

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
4 - OPINION AND ORDER

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 determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

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
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
5 - OPINION AND ORDER

Keyser v. Comm’r of Soc. Sec. Admin., 648

F.3d 721, 724 (9th Cir. 2011).

See also Parra v. Astrue, 481

F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. § 416.920.

Each step is

potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 416.920(a)(4)(I).

See also Keyser, 648

F.3d at 724.
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.
§ 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.

6 - OPINION AND ORDER

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)).

The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.

An improper evaluation

of the claimant's ability to perform specific work-related
functions “could make the difference between a finding of
'disabled' and 'not disabled.'”

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
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).

7 - OPINION AND ORDER

The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines 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 August 20, 2010, his
alleged onset date.

Tr. 25.

At Step Two the ALJ found Plaintiff has the severe
impairments of “degenerative disc disease of the lumbar spine,
chronic pain syndrome, sacroiliitis, left neck and shoulder pain,
depression and anxiety.”4

Tr. 25.

At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.

Tr. 26.

The ALJ found Plaintiff has the RFC to

perform light work, “except he can only occasionally balance,
bend, crouch, crawl, kneel, stoop and climb ramps and stairs but
not ladders, ropes and scaffolds; he must avoid even moderate
exposure to hazards (dangerous machinery, unprotected heights,

4

The Court notes the ALJ based his findings as to these
impairments on the medical diagnoses of Plaintiff that appear in
the record rather than statements in Plaintiff’s applications.
See Tr. 25-32, 174.
8 - OPINION AND ORDER

etc).

He can perform simple repetitive tasks i.e. unskilled

work.”

Tr. 28.

At Step Five the ALJ concluded Plaintiff has a sufficient
RFC to perform jobs that exist in significant numbers in the
national economy based on the Medical-Vocational Guidelines
(Grids) at 20 C.F.R. Part 404, Subpart P, Appendix 2.

Tr. 33.

Accordingly, the ALJ found Plaintiff is not disabled and,
therefore, is not entitled to benefits.

Tr. 34.

DISCUSSION
Plaintiff contends the ALJ erred by failing (1) to find
Plaintiff’s migraines to be a severe impairment at Step Two,
(2) to include any limitations in Plaintiff's RFC as to
Plaintiff's ability to socially function, and (3) to consult with
a VE at Step Five.
I.

The alleged error by the ALJ at Step Two was harmless.
As noted, at Step Two the claimant is not disabled if the

Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments.

Stout v.

Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20 C.F.R. § 416.920(a)(4)(iii).

A severe impairment

“significantly limits” a claimant's “physical or mental ability
to do basic work activities.”

20 C.F.R. § 416.921(a).

Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005).
9 - OPINION AND ORDER

See also
The

ability to do basic work activities is defined as “the abilities
and aptitudes necessary to do most jobs.”
§ 416.921(a),(b).

20 C.F.R.

Such abilities and aptitudes include walking,

standing, sitting, lifting, pushing, pulling, reaching, carrying,
handling, seeing, hearing, and speaking; understanding, carrying
out, and remembering simple instructions; using judgment;
responding appropriately to supervision, co-workers, and usual
work situations; and dealing with changes in a routine work
setting.

Id.

The Step Two threshold is low:
[A]n impairment can be considered as not severe
only if it is a slight abnormality which has such
a minimal effect on the individual that it would
not be expected to interfere with the individual's
ability to work . . . . [T]he severity regulation
is to do no more than allow the Secretary to deny
benefits summarily to those applicants with
impairments of a minimal nature which could never
prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).
As noted, the ALJ found Plaintiff has the severe impairments
of “degenerative disc disease of the lumbar spine, chronic pain
syndrome, sacroiliierrtis, left neck and shoulder pain,
depression and anxiety.”

Tr. 25.

Plaintiff, however, asserts

the ALJ erred at Step Two when he did not find Plaintiff’s
alleged migraines to be a severe impairment.
The Ninth Circuit has held when the ALJ has resolved Step
Two in a claimant's favor, any error in designating specific

10- OPINION AND ORDER

impairments as severe does not prejudice a claimant at Step Two.
Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)(any error in
omitting an impairment from the severe impairments identified at
Step Two was harmless when Step Two was resolved in claimant's
favor).

Because the ALJ resolved Step Two in Plaintiff's favor,

the Court concludes any error by the ALJ in failing to identify
migraines as a severe impairment is harmless.
II.

The ALJ did not err when he did not include in Plaintiff's
RFC a limitation as to Plaintiff's ability to socially
function.
Plaintiff contends the ALJ erred in his assessment of

Plaintiff's RFC when the ALJ found Plaintiff has the severe
impairments of depression and anxiety and moderate restrictions
in social functioning, but did not include a limitation as to
Plaintiff's ability to socially function.
“The step two and step five determinations require different
levels of severity of limitations such that the satisfaction of
the requirements at step two does not automatically lead to the
conclusion that the claimant has satisfied the requirements of
step five.”
2007).

Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir.

As the district court in Keokham v. Astrue pointed out,

“the [RFC] determination is a separate determination, made in
order to assess the claimant's ability to perform the functions
of [his] past work (step four), or if [he] cannot do [his] past
work, other work (step five).
11- OPINION AND ORDER

Thus, [an] ALJ's findings at step

two [or] three . . . are not limitations that ha[ve] to be
included in the ultimate RFC assessment.”

No. 07-CV-426, 2008

WL 4196972, at *4-*5 (E.D. Cal. Sept. 9, 2008)(citing Hoopai, 499
F.3d at 1076 (9th Cir. 2007)).
As noted, the ALJ found Plaintiff's mental impairments of
anxiety and depression met the de minimus requirement for
severity at Step Two.

Tr. 25.

At Step Three, the ALJ found

Plaintiff was moderately restricted in his ability to function
socially.

Tr. 27.

In his assessment of Plaintiff's RFC, the ALJ

limited Plaintiff to light exertion work based on Plaintiff's
physical impairments, but the ALJ did not include any limitations
based on Plaintiff's mental impairments.

Tr. 28.

As noted,

under Hoopai and Keokham the ALJ was not required to include a
limitation on Plaintiff’s ability to socially function at Step
Five merely because he found such a limitation at Step Three.
Moreover, the ALJ’s decision is supported by the opinions of
examining physician Dr. Robin Campbell, Ph.D., and nonexamining
physician Robert Liss, Ph.D.

Dr. Campbell performed a complete

mental examination of Plaintiff on October 9, 2010, and concluded
Plaintiff could maintain the pace of a normal work day and was
only mildly to moderately impaired in his ability to respond to
supervision, to manage normal workday stress, and to respond
appropriately to the public.

Tr. 289.

Dr. Liss similarly found

Plaintiff was moderately limited in his ability to interact with

12- OPINION AND ORDER

the public, but he ultimately concluded Plaintiff was “able to
interact,” “to adapt to ordinary workplace stress and change,”
and “to maintain [concentration, persistence, and pace] over a
full work week.”

Tr. 307.

Accordingly, the Court concludes on this record that the ALJ
did not err in his evaluation of Plaintiff's RFC when he did not
include a limitation as to Plaintiff’s ability to function
socially.
III. The ALJ did not err when he used the Grids of the MedicalVocational Guidelines instead of a VE’s testimony in Step
Five.
Plaintiff contends the ALJ's determination at Step Five that
Plaintiff can perform “jobs that exist in significant numbers in
the national economy” was erroneous because the ALJ did not take
the testimony of a VE at the hearing.

Instead the ALJ relied

solely on the Grids of the Medical-Vocational Guidelines even
though, according to Plaintiff, “the ALJ had insufficient
evidence to conclude that the combined impact of the assessed
mental, postural, and environmental limitations would be so
minimal as to allow for his continued reliance on the grids.”
Pl.’s Br. at 8 (emphasis in original).
With respect to an ALJ's reliance on the Grids in lieu of
the testimony of a VE, the Ninth Circuit has held:
The grids are an administrative tool the Secretary may
rely on when considering claimants with substantially
uniform levels of impairment. They may be used,
however, “only when the grids accurately and completely
13- OPINION AND ORDER

describe the claimant's abilities and limitations.”
When a claimant's non-exertional limitations are
“sufficiently severe” so as to significantly limit the
range of work permitted by the claimant's exertional
limitations, the grids are inapplicable. In such
instances, the Secretary must take the testimony of a
vocational expert, and identify specific jobs within
the claimant's capabilities. Thus, the grids will be
inappropriate where the predicate for using the
grids—the ability to perform a full range of either
medium, light or sedentary activities—is not present.
Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)(citations
and footnote omitted).
As noted, the ALJ found Plaintiff has the RFC to perform
light work “except he can only occasionally balance, bend,
crouch, crawl, kneel, stoop and climb ramps and stairs but not
ladders, ropes and scaffolds; he must avoid even moderate
exposure to hazards (dangerous machinery, unprotected heights,
etc.).”

Tr. 28.

The ALJ found Plaintiff’s nonexertional

limitations “have little or no effect on the occupational base of
unskilled light work” and also found that Plaintiff’s mild-tomoderate mental limitations were not sufficiently severe
nonexertional limitations to warrant the assistance of a VE.
Tr. 33-34.
“Occasional” nonexertional physical limitations such as
those identified by the ALJ do not significantly erode the
occupational base to a degree that the testimony of a VE is
required in Step Five.

See Iness v. Astrue, No. 10–CV–0398–JPH,

2012 WL 1574797, at *11 (E.D. Wash. May 3, 2012)(citing SSR 85-

14- OPINION AND ORDER

15).

As noted, the Court has found the ALJ did not err when he

omitted a limitation as to Plaintiff’s ability to socially
function when the ALJ evaluated Plaintiff’s RFC.
Accordingly, the Court concludes the ALJ’s application of
the Grids was appropriate.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 2nd day of June, 2014.

/s/ Anna J. Brown
___________________________
ANNA J. BROWN
United States District Judge

15- OPINION AND ORDER