Opinion
No. CV-09-1498-HU.
February 25, 2011
Charles Edelson, JAMES DODGE LAW FIRM, Portland, Oregon, Attorney for Plaintiff.
Dwight C. Holton, UNITED STATES ATTORNEY, District of Oregon, Adrian L. Brown, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon, David Morado, REGIONAL CHIEF COUNSEL, Brett E. Eckelberg, SPECIAL ASSISTANT UNITED STATES ATTORNEY, Social Security Administration, Seattle, Washington, Attorneys for Defendant.
OPINION ORDER
Plaintiff Kelly Earl Pittman brings this action for judicial review of the Commissioner's decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
Both parties have consented to entry of final judgment by a Magistrate Judge in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). I affirm the Commissioner's decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on December 18, 2007, alleging an onset date of April 9, 2003. Tr. 166-69, 170-72. The applications were denied initially and on reconsideration. Tr. 89-94, 95-99, 104-06.
On July 29, 2009, plaintiff, represented by counsel, appeared for a hearing before an Administrative Law Judge (ALJ). Tr. 29-71. On September 8, 2009, the ALJ found plaintiff not disabled. Tr. 74-88. The Appeals Council denied plaintiff's request for review of the ALJ's decision. Tr. 1-3.
FACTUAL BACKGROUND
Plaintiff alleges disability based on post-traumatic stress disorder (PTSD), chronic back pain, a shoulder problem, and a "mental problem. Tr. 41, 184. At the time of the September 8, 2009 hearing, plaintiff was forty-eight years old. Tr. 35. Plaintiff has a twelfth grade education, with some vocational training in horticulture. Tr. 36-37. Plaintiff has past relevant work as a landscape laborer and security guard. Tr. 86. Additional facts are discussed below.
THE ALJ'S DECISION
The ALJ first determined that plaintiff had not engaged in substantial gainful activity from his alleged onset date through his date of last insured, December 31, 2008. Tr. 79. The ALJ found that plaintiff had severe impairments of degenerative disc disease, "post shoulder surgery," malingering, anti-social personality disorder, drug and alcohol abuse, and anxiety disorder, but that the impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 79-80.
The ALJ then determined that plaintiff had the residual functional capacity (RFC) to perform light work, except that he (1) could not climb ladders, ropes, or scaffolds, (2) could only occasionally kneel, crouch, or bend, (3) could not crawl, twist, or reach overhead with his left upper extremity, (4) required simple work that did not require intense concentration, but he could remain on task, (5) was restricted to only minimal interaction with co-workers and brief and superficial contact with the general public, and (6) required routine low stress work that did not involve significant changes or adaptations. Tr. at 81-82.
In making this RFC determination, the ALJ explained that while plaintiff's medically determinable impairments could reasonably be expected to produce plaintiff's alleged symptoms, plaintiff's statements regarding the intensity, persistence, and limiting effects of these symptoms were not entirely credible. Tr. 83. In support of this determination, the ALJ discussed the opinions of plaintiff's treating physicians, the opinions of examining physicians, as well as the opinions of a state agency examining psychologist and medical consultant. Tr. 83-85. Then, the ALJ found that plaintiff had exaggerated his subjective complaints and functional limitations based on evidence that he was able to work after his alleged onset date, that he continued to shop for food and attend his son's school activities despite his assertion that he had panic attacks when he left home, and based on evidence that he had a sporadic work history even before his alleged onset date, raising a question as to whether his continuing unemployment was actually due to his medical impairments. Tr. 86.
Based on the RFC, the ALJ concluded that plaintiff could not perform his past relevant work. Id. However, considering his age, education, work experience, and the RFC, the ALJ found that plaintiff could perform the following jobs which exist in significant numbers in the national economy: call out operator, addresser, and final assembler. Tr. 87. Accordingly, the ALJ concluded that plaintiff was not disabled.
STANDARD OF REVIEW SEQUENTIAL EVALUATION
A claimant is disabled if unable 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). Disability claims are evaluated according to a five-step procedure. Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). The claimant bears the burden of proving disability. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; see 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; see 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, he is not disabled. If he cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42;see 20 C.F.R. §§ 404.1520(e) (f), 416.920(e) (f). If the Commissioner meets its burden and proves that the claimant is able to perform other work which exists in the national economy, he is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
The court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Baxter, 923 F.2d at 1394. Substantial evidence means "more than a mere scintilla," but "less than a preponderance." Id. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
DISCUSSION
Plaintiff raises only a single error, conceding that the findings at "steps 1 through 4 are not at issue." Pltf's Op. Brief at p. 4. Plaintiff disputes the ALJ's step five finding, generally arguing that substantial evidence does not support the ALJ's decision, but specifically arguing that the hypothetical presented by the ALJ to the vocational expert (VE) who testified at the hearing, was inconsistent with the ALJ's own findings.At the hearing, the ALJ posed the following hypothetical to VE Diane Weber: an individual restricted to light work, who (1) cannot climb ladders, ropes, or scaffolds, (2) can only occasionally kneel, crouch, or bend, (3) cannot reach overhead with the left upper extremity, (4) is restricted to simple, unskilled work that does not involve maintaining intense concentration, although the person can remain on task, (5) is restricted to positions requiring only minimal interaction with co-workers and brief and superficial contact with the general public, which the ALJ described as something like "brief sales" such as grocery line sales, but not helping in a store where one is expected to interact with customers and help them find items, and (6) requires routine, low-stress work that does not involve significant changes or adaptations. Tr. 66.
In response, the VE testified that such a person could not perform plaintiff's past relevant work as he performed it or as it is customarily performed. Id. But, the VE identified several jobs that such a person could perform, including laundry sorter, mail clerk, and dining room attendant. Tr. 67.
The ALJ then asked the VE if there were significant jobs the hypothetical individual could perform if the person was restricted to sedentary work instead of light work. Id. In response, the VE identified the jobs of cashier, call-out operator, addresser, and final assembler as jobs such a person could perform. Tr. 68.
As noted above, in the ALJ's discussion of steps four and five, she relied on an RFC which included a restriction to "simple unskilled work that does not require intense concentration, although he can remain on task[.]" Tr. 82. This is consistent with the hypothetical presented to the VE. And, the ALJ's step five decision that there are other jobs in the economy which plaintiff can perform, was based on the VE's testimony in response to the ALJ's hypothetical. Tr. 87.
Plaintiff points to an earlier part of the ALJ's decision, when the ALJ is discussing steps two and three of the sequential analysis. The ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 79. In support of this finding, the ALJ discussed plaintiff's medical impairments first, then discussed his alleged mental impairments, concluding that they did not meet, either singly or in combination, Listings 12.06 (anxiety disorders), 12.08 (personality disorders), or 12.09 (substance addiction disorders). Tr. 80.
As part of the mental impairment discussion, the ALJ noted plaintiff's limitations in four areas referred to as the "Paragraph B" criteria, which refers to Paragraph B of each of the listed impairments. The Paragraph B criteria for each of the three relevant listed impairments are activities of daily living, social functioning, concentration, persistence, and pace, and episodes of decompensation. Tr. 81. The ALJ wrote that "[w]ith regard to concentration, persistence, or pace, the claimant has marked difficulties. The claimant testified at the hearing that he sometimes goes `brain dead' and has problems following the story line when watching television." Id..
At the end of this section of her decision, the ALJ noted that the "limitations identified in the `paragraph B' criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process." Id. She further noted that at steps 4 and 5, the mental residual functional capacity assessment "requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of Impairments." Id.
Plaintiff argues that the ALJ's hypothetical to the VE, which assumed "simply, unskilled work that does not involve maintaining intense concentration, although he would be able to remain on task," is inconsistent with the ALJ's earlier finding that plaintiff has marked difficulties with regard to concentration, persistence, and pace. Because an invalid hypothetical undermines an ALJ's step five conclusion, plaintiff contends this case must be reversed and remanded for further proceedings. See Valentine v. Commissioner, 574 F.3d 685, 690 (9th Cir. 2009) (hypothetical derived from RFC, and to be valid, it must incorporate all of a plaintiff's limitations); Nguyen v. Chater, 100 F.3d 1462, 1466 n. 3 (9th Cir. 1996) (incomplete hypothetical cannot "constitute competent evidence to support a finding that claimant could do the jobs set forth by the vocational expert.").
Plaintiff notes that in the Social Security Administration's Program Operations Manual System (POMS), the discussion of "marked" indicates that an inability to perform complex tasks alone is not a "marked" limitation unless it is accompanied by a limitation requiring extra supervision or assistance to perform simple tasks, or if the performance of simple tasks cannot be accomplished consistent with quality and accuracy standards, or without an unreasonable number and length of rest periods, or without undue interruptions or distractions.
Available at:
As defendant notes, however, the ALJ's findings at step three are not an RFC assessment, but instead are used to rate the severity of mental impairments at steps two and three of the sequential evaluation process. Soc. Sec. Ruling (SSR) 96-8p, available at 1996 WL 374184, at *4 (explaining difference between assessing "Paragraph B" criteria as part of a step two/three analysis, and part of the step four/five analysis). Notably, the POMS discussion of a "marked" limitation appears in the section of the POMS regarding assessing listed impairments at steps two and three, and not regarding the RFC used for steps four and five.
The RFC assessment at steps four and five requires a more detailed assessment based on itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorder listings. Id. The ALJ is required to incorporate into his or her written decision the pertinent findings and conclusions based on the Psychiatric Review Technique Form. 20 C.F.R. §§ 404.1520a(e)((2), 416.920a(e)(2).
Here, the ALJ cited plaintiff's testimony regarding his sometimes inability to follow a storyline on television as support for her step two/three determination that he has marked limitations in concentration, persistence, or pace. She relied on the Psychiatric Review Technigue Form findings of state agency psychologist Dorothy Anderson, Ph.D., in formulating the RFC for plaintiff. Tr. 85. There, based on her review of the record, Dr. Anderson found that plaintiff had adjustment disorder with mixed reaction of anxiety and depression, PTSD, anti-social personality disorder, and polysubstance abuse in remission. Tr. 765-73. In the functional limitation section of the form, she found that plaintiff had mild difficulties in maintaining concentration, persistence, and pace. Tr. 775.
In her itemized findings, Dr. Anderson found plaintiff moderately impaired in the ability to understand and remember detailed instructions, the ability to carry out detailed instructions, and the ability to work in coordination with or proximity to others without being distracted by them. Tr. 779. In a narrative section of the report, she noted that plaintiff was capable of completing simple, two-step tasks without special instructions. Tr. 781. However, he was not capable of completing detailed projects because of a mild memory impairment. Id.
I agree with defendant that the ALJ's hypothetical to the VE was based on substantial evidence in the record given that it accounted for Dr. Anderson's findings. The ALJ expressly noted Dr. Anderson's finding that plaintiff had mild limitations in concentration, persistence, and pace, and also noted her ultimate conclusion that he could complete simple, two-step tasks without special instruction. Tr. 85. The ALJ's RFC addressed Dr. Anderson's findings by limiting plaintiff to simple work not requiring intense concentration. The ALJ also considered Dr. Anderson's finding regarding plaintiff's distractability by limiting him to minimal interaction with co-workers, and brief, superficial contact with the general public. And, the ALJ limited plaintiff to routine, low-stress work, not involving significant changes or adaptations.
While at first glance the ALJ's remark, in her step two and three discussion, regarding plaintiff's marked limitation in maintaining concentration, persistence, and pace, could appear to be inconsistent with the RFC, the inconsistency is explained first by noting that the assessment is different at the various steps with the step four and five RFC based on itemized findings requiring a more detailed analysis of the plaintiff's actual functional limitations, and second, by noting that the ALJ, at the step two/three discussion, had not yet thoroughly analyzed the medical evidence in the record and based her finding only on plaintiff's testimony about his inability to follow a storyline while watching television. A more thorough discussion of the record as a whole, including the negative credibility determination which is unchallenged in this case, followed the ALJ's step two/three discussion and carefully explained the basis for the ALJ's RFC.
Because the RFC is based on substantial evidence in the record, and because the hypothetical to the VE incorporated the RFC and accounted for plaintiff's limitations, the ALJ did not err.
CONCLUSION
The Commissioner's decision is affirmed.
IT IS SO ORDERED.
Dated this 25th day of February, 2011
https://secure.ssa.gov/apps10/poms.nsf/lnx/0434001032#di34001032_mentalconcentration.