Myers v. Commissioner Social Security Administration
Filing
22
OPINION AND ORDER. Signed on 8/3/2016 by Magistrate Judge Youlee Yim You. (pvh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RUTH MYERS,
Plaintiff,
v.
Case No. 6:15-cv-01123-YY
OPINION AND ORDER
COMMISSIONER OF SOCIAL
SECURITY ADMINSTRATION,
Defendant.
YOU, Magistrate Judge:
Plaintiff, Ruth Myers (“Myers”), seeks to reverse and remand the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her applications
for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”) under titles
II and IX of the Social Security Act. This court has jurisdiction under 42 U.S.C. § 405(g) and §
1383(c). All parties have consented to allow a Magistrate Judge to enter final orders and
judgment in this case in accordance with F.R.C.P. 73 and 28 U.S.C. § 636(c) (docket #10).
Because the Commissioner’s decision is supported by substantial evidence, it is affirmed.
ADMINISTRATIVE HISTORY
Myers filed applications for DIB and SSI on March 5, 2012, alleging a disability
beginning February 1, 2012, due to obesity, depression, back problems, anxiety, headaches,
fibromyalgia, and HBP. Tr. 22, 262.1 After the Commissioner denied her applications initially
and upon reconsideration Myers requested a hearing, which was held on November 19, 2013.
Tr. 19, 162-63, 38-85. On February 28, 2014, the Administrative Law Judge (“ALJ”) issued a
decision finding Myers not disabled. Tr. 16-32. The Appeals Council denied Myers’s
subsequent request for review on April 23, 2015. Tr. 1-4. Therefore, the ALJ’s decision is the
Commissioner’s final decision subject to review by this court. 20 C.F.R. §§ 404.981, 422.210.
BACKGROUND
Born in November, 1953, Myers was 58 years old on the alleged onset date. Tr. 258.
She has a high school education and completed four years of college. Tr. 263. Myers has past
work experience as an administrative specialist and care provider. Tr. 24, 263, 268.
ALJ’S FINDINGS
Disability is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or 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 ALJ engages in a five-step sequential inquiry to
determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520;
Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
1
Citations are to the page(s) indicated in the official transcript of the record filed on November
18, 2015 (docket #17).
Page 2 – OPINION AND ORDER
At step one, the ALJ found that Myers had not engaged in substantial gainful activity
after the alleged onset date. Tr. 21. At step two, the ALJ found that Myers has the severe
impairments of morbid obesity, fibromyalgia, chronic lower extremity edema/chronic venous
insufficiency, and lumbago. Tr. 22. At step three, the ALJ found Myers did not have an
impairment or combination of impairments that met or medically equaled a listed impairment.
Tr. 23.
The ALJ next assessed Myers’s RFC and determined that she could perform sedentary
work with the following limitations: she cannot climb ladders/ropes/scaffolds; she can
occasionally climb stairs/ramps; she can occasionally kneel, crouch, and crawl; she can
frequently stoop; she cannot have even moderate exposure to workplace hazards such as
unprotected heights, dangerous, moving machinery, etc.; and she must be allowed to elevate one
and/or both legs to approximately 12 inches off the ground when seated. Tr. 24.
At step four, the ALJ found Myers could perform her past relevant work as a receptionist.
Tr. 30. In the alternative, the ALJ determined Myers could perform jobs that exist in significant
numbers in the national economy, including telephone solicitor. Tr. 31. The ALJ therefore
concluded Myers is not disabled. Tr. 32.
STANDARD OF REVIEW
The reviewing 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. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the
evidence that supports and detracts from the ALJ’s conclusion. Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007), citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The
reviewing court may not substitute its judgment for that of the Commissioner. Ryan v. Comm’r
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of Soc. Sec. Admin., 528 F.3d 1194, 1205 (9th Cir. 2008), citing Parra v. Astrue, 481 F.3d 742,
746 (9th Cir. 2007); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Where
the evidence is susceptible to more than one rational interpretation, the Commissioner’s decision
must be upheld if it is “‘supported by inferences reasonably drawn from the record.’”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008), quoting Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see also Lingenfelter, 504 F.3d at 1035.
DISCUSSION
Myers argues that the ALJ erred at steps two, four, and five.
I.
Step Two
Myers first argues the ALJ erred at step two by omitting her mental impairments from the
list of her “severe” impairments.2 At step two, the ALJ determines whether the claimant has a
medically severe impairment or combination of impairments. Step two findings must be based
upon medical evidence. 20 C.F.R. §§ 404.1520(a), 416.920(a). An impairment is “not severe” if
it “does not significantly limit [the claimant’s] ability to do basic work activities.” Id.
“Omissions at step two are harmless if the ALJ’s subsequent evaluation considered the effect of
the impairment omitted at step two.” Harrison v. Astrue, 2011 WL 2619504, at *7 (D. Or. July
1, 2011), citing Lewis, 498 F.3d at 911.
The ALJ resolved step two in Myers’s favor; therefore, any omission is harmless if the
ALJ considered the effect of Myers’s mental impairments in subsequent steps of the disability
evaluation. In a written decision, the ALJ found that Myers’s only medically determinable
mental impairment was major depression with anxiety. Tr. 22. The ALJ found this impairment
2
On page 10 of her brief, Myers also appears to allege that the ALJ omitted a rotator cuff tear
from the RFC finding, but she makes no further mention of this issue. As the court can find no
evidence of this alleged impairment, it will not be discussed further.
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to be non-severe based on the medical record, which showed that “plaintiff engaged in no
meaningful treatment for mental health complaints, aside from requesting periodic refills of
Prozac.” Id. The ALJ also noted that Myers’s depression and anxiety were effectively managed
with medication. Myers’s hearing testimony alleged fatigue and inability to focus, but she
attributed these complaints to her physical limitations. Tr. 23.
Myers began treatment for depression in 2009. Tr. 352. She was prescribed Prozac, and
treatment notes reveal that medication was effective in improving her mood and affect. See, e.g.,
Tr. 350 (treatment note stating that Myers’s “mood is good on 10 mg of Prozac, and she would
like to continue at that dose”). The ALJ may draw inferences about the severity of an
impairment based on the degree of treatment the claimant sought. Flaten v. Sec’y of Health, 44
F.3d 1453, 1464 (9th Cir. 1995). Here, the ALJ acknowledged that Myers’s depression was
controlled with Prozac and did not manifest in symptoms severe enough to cause Myers to seek
further treatment. Tr. 23, 401. On this record, it was reasonable for the ALJ to infer that
Myers’s mental impairment was not severe.
Myers argues that the ALJ’s omission of her mental impairments at step two caused
further error because the ALJ omitted limitations caused by her mental impairments from the
RFC. As evidence of these limitations, Myers cites the following record evidence: First, Dr.
James Hylton, M.D., referred Myers for a mental health intake appointment for anxiety, social
anxiety, and depression in 2012. Tr. 398. Second, Peter Schur, Ph.D., performed a
psychological evaluation in 2013 and assessed Myers’s GAF score at 55, indicating moderate
limitations caused by mental impairments. Tr. 426. Dr. Schur also diagnosed major depression
with anxiety. Id. Finally, nurse practitioner Kathleen Arbunkle, FNP, opined that Myers would
have poor pace and concentration due to pain. Tr. 338-39.
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The ALJ, however, rejected evidence in the record that would substantiate any mental
limitations over and above those included in the RFC. Specifically, the ALJ gave little weight to
Ms. Arbuckle’s opinion (Tr. 30) and found Myers’s subjective symptom reports – which formed
the basis of her GAF score – to be not credible. Tr. 28. As Myers does not contest the ALJ’s
credibility finding or evaluation of the medical record, the court finds no harmful error resulting
in the ALJ’s step two analysis. The ALJ formulated Myers’s RFC based on the evidence in the
record determined to be credible, and considered the effects of Myers’s credible symptoms and
limitations at steps four and five. In sum, the ALJ properly considered all of Myers’s mental
limitations at every subsequent step in the disability analysis; therefore, any error of omission at
step two was harmless. Lewis, 498 F.3d at 911.
II.
Steps Four and Five
Myers argues that the ALJ erred at steps four and five by finding that Myers could
perform her past relevant work and finding in the alternative that Myers could perform work as a
telephone solicitor. Because the ALJ’s step five finding that Myers could work as a telephone
solicitor was sufficient to establish that Myers is not disabled, any error at step four was
harmless. Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012) (the court will not reverse an
ALJ’s decision for errors that are inconsequential to the ultimate nondisability determination)
(citing Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008).
At step five, the burden shifts to the Commissioner to “show that, taking into account a
claimant’s age, education, and vocational background, she can perform any substantial gainful
work in the national economy.” Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001); 20
C.F.R. §§ 404.1520(f) and 416.920(f). “There are two ways for the Commissioner to meet his
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Step Five burden: (1) the testimony of a VE; or (2) by reference to the Medical–Vocational
Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th
Cir. 2001), citing Tackett v. Apfel, 180 F.3d 1094, 1100–01 (9th Cir.1999). Here, the ALJ based
the step five findings on the VE’s testimony and grid Rules 201.07 and 201.00(f). Tr. 32. At the
administrative hearing, VE Jacklyn Benson-Dehaan testified that Myers’s past work as a
receptionist utilized skills transferable to the position of telephone solicitor. Tr. 77-78. The VE
stated that Myers’s transferable skills included “customer service, verbal/written communication
skills, multitasking, computer skills, [and] time management.” Tr. 80. She further explained that
telephone solicitors generally use headsets and are able to elevate their feet. Tr. 78-79.
Myers contends that the single occupation of receptionist does not constitute a
“significant range of skilled or semiskilled work” for the purposes of the grid Rule under
Lounsburry v. Barnhart, and is therefore an insufficient basis for the ALJ’s step five finding.
468 F.3d 1111 (9th Cir. 2006). In Lounsburry, the court found that a single occupation did not
constitute a significant range of work for the purpose of determining whether a claimant of
advanced age could perform light work under grid Rule 202.07. Id. at 1116-17. In Tommasetti,
however, the Ninth Circuit declined to extend the Lounsburry rule - that a single occupation is
insufficient to meet the “significant range” language for the purposes of determining if a
claimant is able to perform light work under Rule 202.07 - to grid Rule 201.07, which concerns
sedentary work. Tommasetti, 533 F.3d 1035, 1043-44 (9th Cir. 2008) (upholding a step five
finding based on a claimant’s transferable skills from one occupation). Because the ALJ’s step
five conclusion in the instant case was based on grid Rule 201.07, the rule in Lounsburry does
not apply. Id. Following Tommasetti, the court therefore finds that Myers’s list of transferable
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skills from the single occupation of receptionist was a sufficient basis for the ALJ’s step five
reasoning.
Myers next argues that the ALJ erred in finding that she learned skills in her past work as
a receptionist that are readily transferable to the job of telephone solicitor. She contends that the
Dictionary of Occupational Titles (“DOT”) definitions of telephone solicitor, receptionist, and
general clerk show that significant vocational adjustment is required to transfer the skills of a
receptionist or general clerk to the job of telephone solicitor and therefore could not be
performed by a claimant of advanced age like herself. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule
201.00(f); SSR 82-41.
This argument lacks merit. The Regulations provide that transferability of skills “means
applying work skills which a person has demonstrated in vocationally relevant past jobs to meet
the requirements of other skilled or semiskilled jobs.” SSR 82-14, 1982 WL 31389 at *2.
Where occupational skills “have universal applicability across industry lines, e.g., clerical,
professional, administrative, or managerial types of jobs, transferability of skills to industries
differing from past work experience can usually be accomplished with very little, if any,
vocational adjustment where jobs with similar skills can be identified as being within an
individual’s RFC.” Id. at *6.
Here, Myers’s past work as a receptionist conferred the type of universally applicable
skills requiring little vocational adjustment noted in the Regulations. Further, the ALJ based the
step five findings on the VE’s testimony regarding Myers’s ability to perform work in the
national economy. Tr. 30. The ALJ is entitled to rely on the VE or other specialist if there is an
issue in determining whether a claimant’s work skills can be used in other work. 20 C.F.R. §§
404.1566(d)-(e), 416.966(d)-(e). At the administrative hearing, the ALJ asked the VE whether
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“there would be transferable skills from [Myers’s] past work into [Myers’s RFC] that would not
require significant vocational readjustment.” Tr. 75-76. The VE answered in the affirmative,
identified the occupation of telephone solicitor, and described Myers’s transferable skills that
applied to this work. Tr. 77-80. The ALJ was entitled to conclude based on the VE’s testimony
that Myers retained the ability to perform work that exists in the national economy. 20 C.F.R. §§
404.1566(e), 416.966(e). The ALJ’s step five findings are affirmed.
ORDER
For the reasons discussed above, the Commissioner’s decision that Myers is not disabled
is affirmed.
DATED this 3rd day of August, 2016.
s/Youlee Yim You
Youlee Yim You
United States Magistrate Judge
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