Reister v. Commissioner Social Security Administration

Filing 22

OPINION AND ORDER: The Commissioner's decision is AFFIRMED and this appeal is dismissed. Signed on 6/25/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

KIMBERLY R., 1

Case No. 6:17-cv-00149-AA
OPINION AND ORDER

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECUR!TY, 2
Defendant.

AIKEN, Judge:
Plaintiff Kimberly R., proceeding pro se, brings this action pursuant to the Social
Security 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 plaintiff's

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case.
2

Nancy A. Berryhill's term as the Acting Commissioner of the Social Security
Administration ended on November 17, 2017, and a new Commissioner has not been appointed.
The official title of the head of the Social Security Administration is the "Commissioner of
Social Security." 42 U.S.C. § 902(a)(l). A "public officer who sues or is sued in an official
capacity may be designated by official title rather than by name[.]" Fed. R. Civ. P. 17(d). I
therefore refer to defendant only as Conm1issioner of Social Security.
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application for Supplemental Security Income ("SSI"). For the reasons set forth below, the
Commissioner's decision is affirmed.
BACKGROUND

In January 2013, plaintiff applied for SSL She alleged disability due to diverticulitis,
aortic aneurysm, herniated diaphragm, chronic obstructive pulmonary disease ("COPD"),
reduced lung capacity, tumors and screws in her feet, back spasms, chronic pain, panic attacks,
high blood pressure, abdominal pain, fatigue, depression, and cataracts. Plaintiffs application
was denied initially and upon reconsideration. On April 2, 2015, plaintiff appeared at a hearing
before an ALJ. On July 24, 2015, the ALJ issued a decision finding plaintiff not disabled. After
the Appeals Council denied review, plaintiff filed a complaint in this Court.
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 of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that supports and the evidence that detracts from the ALJ' s conclusion." A1ayes v.
lVfassanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one

interpretation but the Commissioner's decision is rational, the decision must be affirmed because
"the court may not substitute its judgment for that of the Commissioner." Edlund v. A1assanari,
253 F.3d 1152, 1156 (9th Cir. 2001).

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COMMISSIONER'S DECISION

The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet that burden, the claimant must

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impaitment 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. § 416.920(a)(4). At
step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" since
January 31, 2013. Tr. 10; 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff
suffered from the following severe impai1ments:
degenerative joint disease of the bilateral lower extremities, status post bilateral
ankle factures with retained hardware; peripheral neuropathy with history of right
foot cellulitis ulcerations, stats post amputation distal second right toe and
residual non-ulcerative callus formations; diapluagmatic hernia; chronic
obstructive pulmonary disease (COPD); [and] major depressive disorder in
combination with alcohol dependence.
Tr. 10; see also 20 C.F.R. § 416.920(a)(4)(ii), (c). The ALJ considered evidence in the record
related to plaintiffs thoracic aortic aneurysm, but found that impairment was not severe because
it did not significantly affect plaintiffs ability to work.
At step three, the ALJ dete1mined plaintiffs impairments, whether considered singly or
in combination, did not meet or equal "one of the listed impairments" that the Conunissioner
acknowledges are so severe as to preclude substantial gainful activity. Tr. 12; see also 20 C.F.R.
§ 416.920(a)(4)(iii), (d).

The ALJ found plaintiff retained the residual functional capacity

("RFC") to

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perfom1 sedentary exeiiion work with lifting and carrying of 10 pounds
occasionally and frequently, standing and walking at least two hours of an eight
hour workday and sitting about six hours of an eight hour workday. She can
never climb ladders and frequently stop, kneel, crouch, crawl, and climb ramps
and stairs. The claimant can never use foot controls. She is to avoid concentrated
exposure to fumes, odors, dusts, gases, poor ventilation, etc. The claimant can
have occasional coworker contact and no public contact.
Tr. 14; see also 20 C.F.R. § 416.920(e).
At step four, the ALJ concluded plaintiff could not perform her past relevant work as a
hair stylist or sales clerk because they required both public contact and more than sedentary
physical activity. 20 C.F.R. § 416.920(a)(4)(iv). At step five, the ALJ found plaintiff could
perform other jobs existing in significant numbers in the national economy, such as computer
controlled color photograph printer operator, assembler of small products, and electronics
assembler. 20 C.F.R. § 416.920(a)(4)(v), (g)(l).

Accordingly, the ALJ found plaintiff not

disabled and denied her application for benefits.
DISCUSSION
I.

Scope of this Appeal

In her brief, plaintiff assetis that a thoracic aotiic aneurysm caused her to be unable to
work. She states that symptoms from the aneurysm were present for years before she was
diagnosed and that providers incorrectly attributed those symptoms to anxiety. She requests an
award of SSI dating "back to the time the anemysm should have been discovered." Pl.'s Br. 2
(doc. 19).
Plaintiff was first diagnosed with an aneurysm in January 2013. Plaintiff appears to be
requesting benefits back to 2007, when she left her last job as a hairdresser for Precision Cuts.
At the hearing, plaintiff testified that she was fired from that job because she "thought [she] was

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having a heart attack." Tr. 52.

In her reply brief, plaintiff asserts that the symptoms she

experienced that day at Precision Cuts were caused by her then-undiagnosed aneurysm.
The present appeal concerns only the Commissioner's denial of plaintiffs January 2013
application for benefits. Plaintiff has applied for disability benefits multiple times in the past. In
connection with previous SSI applications, plaintiff was found not disabled on August 21, 2012;
on September 12, 2011; and on April 22, 2011. Plaintiff did not pursue any of those claims
through the judicial review level, which means the Commissioner's prior determinations of
nondisability are "final and binding" unless the Commissioner reopens them.

20 C.F.R.

§ 416.1487.
This Court lacks authority to reopen any of plaintiffs previous SSI claims.

Social

Security regulations specify that a request to reopen a final disability decision must be directed to
the Commissioner, not to the couti. 20 C.F.R. § 416.1487(b). It is thus up to the Commissioner
to decide whether plaintiff satisfies the requirements to reopen a prior decision. See 20 C.F.R.
§ 416.1488. In addition, because reopening is discretionary, federal courts lack jurisdiction to
review the Commissioner's denial of a request to reopen unless the plaintiff can show that the
denial violated her due process right to notice and an oppmtunity to be heard. Udd v. Massanari,
245 F.3d 1096, 1098-99 (9th Cir. 2001). To the extent that plaintiff is asking me to find her
disabled at any time other than the period of time related to the application now under review,
that request is dismissed for lack of jurisdiction.
The ALJ' s finding of nondisability is tied to January 31, 2013, which the ALJ identified
as the application date. The ALJ e11'ed in assessing disability beginning January 31, 2013, and

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should instead have considered the period beginning August 22, 2012. 3 That enor, however, was
harmless. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
Nothing in the record indicates that plaintiff's symptoms and limitations were appreciably
different or worse in late 2012 than they were in early 2013 and later.
I will now proceed to consider the merits of plaintiff's arguments with respect to a period
of alleged disability beginning August 22, 2012.
II.

Failure to ClassifY Aortic Anewysm as "Severe" at Step Two

Plaintiff argues that the ALJ ened by failing to give due consideration to symptoms
caused by her heart aneurysm, leading him to misclassify the aneurysm as not severe. The step
two inquiry is a de minimis screening device used to dispose of groundless claims. Bowen, 482
U.S. at 153-54. The claimant bears the burden of establishing that he has a severe impaim1ent at
step two by providing medical evidence. 20 C.F.R. § 416.912. An impairment or combination
of impainnents is "not severe only if the evidence establishes a slight abn01mality that has no
more than a minimal effect on the individual's ability to work." Webb v. Barnhart, 433 F.3d
683, 686 (9th Cir. 2005) (emphasis in original).

Where an ALJ fails to identify a severe

impairment at step two, but nonetheless considers at all subsequent steps the effect of the
enoneously omitted severe impairment, the error at step two is harmless. Lewis v. Astrue, 498
F.3d 909, 911 (9th Cir. 2007).
Plaintiff contends that symptoms attributable to her aneurysm were misdiagnosed for
years as panic attacks. That may be true, but even assuming that it is, the misdiagnosis could not

3

Plaintiff filed the relevant SSI application on January 17, 2013, alleging disability
beginning, at the latest, December 31, 2007. However, as explained above, the Appeals
Council's August 21, 2012 nondisability decision is final and binding on this Court. As a result,
August 22, 2012 is the earliest date on which plaintiff could be found disabled with respect to the
application now under review.
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have affected the ALJ' s decision with respect to this application because plaintiff submitted
records related to her aneurysm diagnosis to the ALJ before the hearing. It is clear that the ALJ
reviewed those records, as he asked questions about the aneurysm at the hearing and discussed
the aneurysm in his decision. Any misdiagnosis earlier in plaintiffs medical records did not
affect the ALJ' s decision here.
In disability decisions, "severe" is a tenn of mt "Severe" does not describe whether the
impahment in question canies a risk of severe consequences. Instead, "severe" refers to the
extent to which a given impairment affects a claimant's ability to work-for example, how much
weight she can carry, how long she can stand without resting, and how much she can interact
with others.

See 20 C.F.R. § 416.920(c) (stating that an impairment is "severe" if it

"significantly limits" a claimant's "physical or mental ability to do basic work activities[.]").
Here, the medical record clearly shows that plaintiffs aneurysm may have serious consequences
in the future; neither this decision nor the ALJ' s decision states or suggests that being diagnosed
with an aneurysm is insignificant in that broader sense. But there is no evidence in the medical
record that symptoms caused by plaintiffs aneurysm have more than a minimal effect on her
ability to do basic work activities.

To the contrary, one treating physician characterized

plaintiffs aneurysm as "stable" and "asymptomatic." Tr. 560. He recommended "periodic
radiographic surveillance" and instructed plaintiff to follow up "in 2 years for evaluation in
coajunction with a non-contrast CT of the chest." Id Plaintiff points to a medical record in
which a different treating physician reported that plaintiff could not lie flat or on her left side due
to her heart racing. As the govermnent points out, none of the jobs the ALJ identified at step five
require her to lie flat or lie on her left side, so that observation is immaterial to the disability
analysis.

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Plaintiff is correct that her reports about how she subjectively experiences her symptoms
are relevant to the disability dete1mination. The Social Security regulations specifically list a
claimant's description of her own symptoms among the evidence the Commissioner must
consider in making a disability decision. See 20 C.F.R. § 416.929(a). However, a claimant's
statements about her symptoms are not conclusive proof of disability. Instead, the ALJ must
decide how much evidentiary weight to give to those statements by comparing the claimant's
testimony to other evidence in the record. If the ALJ decides to give less than full weight to a
claimant's symptom testimony, he must justify that decision with "specific, clear and convincing
reasons[.]" Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996).
Here, the ALJ concluded that plaintiffs statements "concerning the intensity, persistence
and limiting effects" of her symptoms were "not entirely credible." Tr. 15. He provided several
specific reasons for that decision. For example, the ALJ noted that plaintiffs statements about
her problems standing and walking conflicted with evidence in the record that she had walked
and stood extensively on a trip to Disneyland. Such a conflict is a clear, convincing reason to
give Jess weight to a claimant's symptom testimony. See Orn v. Astrue, 495 F.3d 625, 639 (9th
Cir. 2007) (stating that an ALJ may conclude, based on a claimant's testimony about her own
activities, that she is "more fi.mctional than alleged").

The ALJ also found that plaintiff's

resistance to the treatment suggestions of her providers and general preference for conservative
treatment undern1ined her statements about the severity of her symptoms. That, too, is a clear,
convincing reason to discredit a claimant's symptom statements. See Tommasetti v. Astrue, 533
F.3d 1035, 1040 (9th Cir. 2008) (holding that an ALJ permissibly may infer from conservative
treatment that an impairment is not as disabling as alleged). The ALJ did what the regulations
require: he considered plaintiffs description of her symptoms as one piece of evidence in the

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record. Because his decision to give less than full weight to her testimony is supported by clear,
convincing reasons, I am bound to uphold it. 4
The ALJ reasonably determined, based on all the evidence in the record, that plaintiffs
aneurysm does not significantly limit her ability to do basic work activities. Thus, his finding at
step two is supported by substantial evidence.
CONCLUSION

The Commissioner's decision is AFFIRMED and this appeal is dismissed.
IT IS SO ORDERED.
Dated this ;IS day of June 2018.

Ann Aiken

United States District Judge

4

Plaintiff did not expressly challenge the ALJ's decision to give less weight to her
testimony about her symptoms. But such a challenge is implicit in her reply brief. See Pl.'s
Reply 2 (doc. 21) ("[T]he entire record is based on my statements to my Doctors! Furthermore,
only the person experiencing events/symptoms knows the severity of anxiety, when something is
not right."). Because plaintiff is pro se, I have carefully considered whether the ALJ ened in
evaluating her symptom statements. For the reasons set out above, I find no error.
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