Rivera v. Commissioner Social Security Administration
Filing
22
Opinion and Order: The Commissioner's decision is affirmed and this case is dismissed. Signed on 9/6/16 by Judge Ann L. Aiken. (ljb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JOHN T. RIVERA,
Plaintiff,
V.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Richard F. Mc Ginty
McGinty & Belcher, Attorneys
P.O. Box 12806
Salem, OR 97301
Attorney for plaintiff
Janice E. Hebert
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Lars J. Nelson
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 MIS 221A
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER
Case No. 6:15-cv-00796-AA
OPINION AND ORDER
AIKEN, Judge:
Plaintiff John T. Rivera brings this action pursuant to the Social Security Act ("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 plaintiffs applications for Supplemental Security
Income ("SSI") and Disability Insurance Benefits ("DIB"). For the reasons set forth below, the
Commissioner's decision is affirmed.
BACKGROUND
On June 22, 2011, plaintiff applied for SSI and DIB. Tr. 276, 281. He alleged disability
beginning August 31, 2007 due to attention deficit hyperactivity disorder, post-traumatic stress
disorder with agoraphobia, major depressive disorder, and various learning disorders. Tr. 397. His
applications were denied initially and upon reconsideration. Tr. 136, 153, 172, 189. On February
20, 2014, a hearing was held before an Administrative Law Judge ("ALJ"). Tr. 230. Plaintiff,
represented by counsel, testified, as did a vocational expert ("VE"). Tr. 7. On May 23, 2014, the
ALJ issued an unfavorable decision. Tr. 92. After the Appeals Council denied his request for review,
plaintiff filed a complaint in this Court. Tr. 1.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based upon proper legal
standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g);
Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "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." Gutierrez v. Comm 'r ofSoc. Sec., 740 F.3d 519, 522 (9th Cir.
2014) (internal quotation marks omitted). The court must weigh "both the evidence that supports
and the evidence that detracts from the ALJ's" decision. Mayes v. Massanari, 276 F.3d 453, 459
(9th Cir. 2001 ).
If the evidence is susceptible to more than one interpretation but the
Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may
not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152,
Page 2 - OPINION AND ORDER
1156 (9th Cir. 2001).
COMMISSIONER'S DECISION
The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). 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 impairment which can be expected ... to last for a continuous period of not less than 12
months[.]" 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502(a)(4). At
step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged
disability onset date. Tr. 74; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found
plaintiff had the following severe impairments: affective disorder, anxiety disorder, learning
disorder, and polysubstance abuse disorder. Tr. 74; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step
three, the ALJ determined plaintiffs impairments, whether considered singly or in combination, did
not meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges
are so severe as to preclude substantial gainful activity." Tr. 75; 20 C.F.R. §§ 404.1520(a)(4)(iii),
(d).
The ALJ found plaintiff retained the residual functional capacity ("RFC")
to perform a full range of work at all exertional levels but with the following
nonexertional limitations: The claimant can perform simple, routine tasks in twohour increments. He can occasionally work with the general public, and can work
in the same room with an unlimited number of coworkers but should not work in
coordination with them. He can have superficial interaction with coworkers. The
claimant can make simple judgments for simple, routine tasks, and should not work
at a job where the General Educational Development for language exceeds level two
(2). The claimant is likely to be absent from work three times a month or more due
to substance abuse issues.
Tr. 77-78; 20 C.F.R. § 404.1520(e). At step four, the ALJ concluded the level of absenteeism
reflected in the RFC precluded plaintiff from performing any of his "past relevant work." Tr. 78,
20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step five, the ALJ found plaintiff could not perform any jobs
Page 3 - OPINION AND ORDER
I
existing in significant numbers in the national economy because his nonexertional limitations "so
narrow[ed] the range of work [he] could perform that a finding of 'disabled' is appropriate[.]" Tr.
79, 20 C.F.R. §§ 404.1520(a)(4)(v), (g). Specifically, theALJ noted plaintiffs "inability to maintain
work activity on a regular and continuous basis of a five-day, 40-hour workweek[.]" Tr. 79.
The ALJ then repeated steps two through five of the sequential process, this time eliminating
plaintiffs substance abuse from consideration. See SSR 13-2P, 2013 WL 621536, *6 (setting out
the process for determining whether substance abuse is "material" to a disability determination and
directing a finding of not disabled when substance abuse is material). At step two, the ALJ found
that even if plaintiff stopped substance use, his remaining mental heath impairments still would be
severe. Tr. 79. At step three, the ALJ determined those impairments would not meet or medically
equal a listed impairment. Tr. 80. In this second sequential evaluation, the ALJ made only one
change to the RFC: she removed the final sentence predicting three absences per month. Tr. 81-82.
At step four, the ALJ concluded plaintiff could perform past relevant work as a cannery laborer,
construction worker,janitor, warehouse worker, auto detailer, or painter helper. Tr. 90. At step five,
the ALJ found, in the alternative, that plaintiff could perform other jobs existing in significant
numbers in the national economy, such as motel cleaner and price marker. Tr. 91. Accordingly, the
ALJ found plaintiff not disabled and denied his application for benefits. Tr. 92.
DISCUSSION
Plaintiff argues the ALJ erred by ( 1) improperly reformulating the RFC during the second
sequential evaluation; (2) omitting several necessary limitations from the RFC; and (3) denying
plaintiffs request to reopen a prior disability application. 1 I address each contention in tum.
I.
Formulation of RFC During Second Sequential Evaluation
1
Plaintiff also challenges the ALJ's step-four analysis as internally inconsistent and
inadequately supported by factual findings. It is not necessary to address the merits of these
arguments because the ALJ' s alternatively found at step five that plaintiff could perform other
work available in the national economy. That step five finding, which plaintiff does not
challenge, renders harmless any error at step four. Tommasetti v. Astrue, 533 F.3d 1035, 1042
(9th Cir. 2008).
Page 4 - OPINION AND ORDER
Plaintiffs primary argument on appeal is that the ALJ erred in concluding his substance
abuse disorder was material to the disability decision. A plaintiff is not entitled to benefits "if
alcoholism or drug addiction would ... be a contributing factor material to the Commissioner's
determination thatthe individual is disabled." 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). "The key
factor [the Commissioner] will examine in determining" materiality of drug addiction or alcoholism
"is whether [the Commissioner] would still find a claimant disabled ifhe or she stopped using drugs
or alcohol." SSR 13-2P, 2013 WL 621536, at *4. The plaintiff bears the burden of demonstrating
that substance abuse is not a material contributing factor to the disability. Parra v. Astrue, 481 F .3d
742, 744-45 (9th Cir. 2007).
In the first sequential evaluation, the ALJ included in the RFC a prediction that plaintiff
would be absent from work at least three times per month ("attendance limitation"). The ALJ
deleted the attendance limitation from the RFC in the second sequential evaluation. This deletion
drives the materiality analysis, because the ALJ concluded that three absences per month would
preclude plaintiff from working, but that plaintiff could perform both past work and other work in
the national economy without the attendance limitation. The question before the Court is whether
the attendance limitation is fairly attributable only to plaintiffs substance abuse.
The ALJ' s decision to include the attendance limitation in the first RFC rested primarily on
her interpretation of a series of emails, letters, and case notes written by staff at the Oregon
Department of Human Services Office of Vocational Rehabiliation. Those documents note plaintiff
was "not attending ... classes for his GED completion" despite agreeing to do so and document
problems with "[d]iscernment in choosing friends and activities." Tr. 843. They also mention a
meeting with plaintiffs former significant other, Leslie, in which Leslie stated "she's had it with
[plaintiffs] addictions." Tr. 845. The ALJ reasonably interpreted these documents, in combination
with other evidence of plaintiffs substance abuse, to suggest plaintiff would be likely to have
attendance problems as long as he continued to use substances. The ALJ did not cite any other
evidence, and plaintiff has not pointed to any other evidence, suggesting plaintiff would be likely to
Page 5 - OPINION AND ORDER
have attendance problems as a result of any of his other mental disorders. Indeed, although medical
and lay sources repeatedly mention plaintiffs difficulty staying on-task, paying attention, and
following through, the only clear reference to absenteeism appears in the Office of Vocational
Rehabilitation documents. In sum, the only reason the ALJ included an attendance limitation in the
first RFC was because she rationally concluded plaintiffs substance abuse would cause him to be
absent from work.
Plaintiff contends the ALJ was required to point to reliable medical evidence that his
attendance problems would improve in the absence of substance abuse before omitting that limitation
from the RFC during the second sequential evaluation. But that is not what the Social Security
regulations require. SSR 13-2P states that an ALJ may not predict that a co-occurring mental
impairment would improve ifthe substance abuse ceased. 2013 WL 621536 at *9. Here, however,
the ALJ did not predict any of plaintiffs other mental impairments would improve in the absence
of substance abuse; she simply eliminated a limitation caused only by substance abuse from the RFC.
Plaintiff also argues the ALJ' s finding he would have "moderate" difficulties with
concentration, persistence, or pace even without the substance abuse disorder requires the inclusion
of an attendance-related limitation in the second RFC. Plaintiff contends "no absences" cannot be
fairly categorized as "moderate" difficulties. However, attendance problems are merely one of many
types of difficulties with concentration, persistence, or pace. As noted, the record contains numerous
references to plaintiffs difficulty staying on-task, paying attention, and following through. Medical
and other sources clearly connect these difficulties to plaintiffs anxiety, affective disorder, and
learning disabilities.
The Ninth Circuit has squarely held that a limitation to simple tasks may adequately account
for problems with concentration, persistence, or pace. Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1174 (9th Cir. 2008). Plaintiffs RFC included not only a limitation to simple tasks, but a
requirement those tasks be repetitive and performed only in two-hour increments. This adequately
accounts for the moderate problems in this area found by the ALJ and reflected in the record.
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I
Plaintiff has not connected the attendance limitation to any of his mental disorders other than
substance abuse. Accordingly, he has failed to carry his burden to show his substance abuse disorder
was not material to the ultimate disability determination.
IL
Omission of Limitations from RFC
Plaintiff next challenges the ALJ' s failure to include in the RFC limitations consistent with
those recommended in a letter detailing approved classroom accommodations for plaintiff while he
was taking classes at Chemeketa Community College. The letter, written by an Accommodation
Specialist in the college's Disability Services office, directs instructors to give plaintiff double the
usual amount of time to complete tests, with a ten-minute break after each forty-minute increment
of testing. Tr. 300-01. The ALJ found the classroom limitations "d[id] not describe workplace
limitations." Tr. 89. This reflects a rational conclusion plaintiff would require more frequent breaks
when testing -
a high-intensity mental activity requiring significant concentration -
than when
performing the simple, routine work permitted by the RFC.
Plaintiff also asserts the ALJ erred in her treatment of a third-party function report completed
by plaintiffs former foster father. The ALJ found the statement "somewhat persuasive." Tr. 87.
Plaintiff argues the RFC does not account for certain limitations included in the statement: that
plaintiff needs verbal reminders to take medication, that his attention tends to wander, and that he
is paranoid and has difficulty in large groups and social situations. Tr. 378, 380-81, 383. The ALJ
adequately addressed each ofthese problems by limiting plaintiffto simple, routine tasks in two-hour
increments and restricting his contact with coworkers and the public.
Finally, plaintiff avers the ALJ erred by limiting his contact with the public on the basis of
quantity but not quality. The RFC allows occasional contact with the public but does not specify
whether that contact can be more than superficial.
Plaintiff asserts this limitation does not
adequately address his moderate difficulties with social functioning, including his agoraphobia and
paranoia. Any error in the omission of a qualitative limitation here was harmless. The ALJ relied
on the testimony of a VE in making his findings at step four and step five. The ALJ asked the VE
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I
about jobs requiring no more than superficial and occasional work with the public. Tr. 56.
Accordingly, any deficiency in the written RFC did not harmfully affect the ultimate disability
determination.
III.
Denial of Petition to Reopen Prior Application
Plaintiff filed a prior application for SSI and DIB September 16, 2010. Tr. 262, 269. Those
applications were denied November 16, 2010. Tr. 108, 118. In the instant application for benefits,
filed within a year of the first denial, plaintiff sought to reopen the prior disability denial. Tr. 92.
He contends the ALJ erred in denying that request.
A decision not to reopen a prior, final benefits decision is not subject to judicial review
unless the denial of the petition to reopen is challenged on constitutional grounds.
Udd v.
Massanari, 245 F.3d 1096, 1098-99 (9th Cir. 2001). Plaintiff contends that the ALJ's denial of the
petition to reopen violated 20 C.F.R. § 404.988(a), which permits a disability determination to be
reopened "for any reason" within twelve months of the decision. Standing alone, an agency's failure
to follow its own regulations is not a violation of due process. Brown v. Holder, 763 F.3d 1141,
1148 (9th Cir. 2014). To state a constitutional claim, plaintiff would have to explain how the
"underlying government conduct" violates the Due Process Clause. Id. Here, however, plaintiff did
not mention due process or any other constitutional right in his brief. Accordingly, this Court lacks
jurisdiction to review the denial of the petition to reopen.
CONCLUSION
The Commissioner's decision is AFFIRMED and this case is dismissed.
IT IS SO ORDERED.~
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Ann Aiken
United States District Judge
Page 8 - OPINION AND ORDER
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