O'Neal v. Commissioner, Social Security Administration, No. 6:2009cv00722 - Document 27 (D. Or. 2010)

Court Description: Opinion and Order: The Commissioner's decision is based on substantial evidence, and is therefore, affirmed. This case is dismissed. Signed on October 29, 2010 by Chief Judge Ann L. Aiken. (cp)

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O'Neal v. Commissioner, Social Security Administration Doc. 27 ..... " .. ", 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 Civil No. 09-722-AA OPINION AND ORDER BARBARA O'NEAL, 10 Plaintiff, 11 vs. 12 13 MICHAEL J. ASTRUE, Commissioner of Social Security, 14 Defendant. 15 16 17 Merrill Schneider Attorney At Law PO Box 14490 Portland, Oregon 97293 Attorney for plaintiff 18 19 20 21 22 Dwight Holton United States Attorney District of Oregon Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Avenue Portland, Oregon 97204-2902 25 Thomas M. Elsberry Special Assistant U.S. Attorney Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 901 Seattle, Washington 98104-7075 Attorneys for defendant 26 AIKEN, Chief Judge: 23 24 27 28 Claimant, Barbara O'Neal, brings this action pursuant to the Social Security Act 1 (the Act), 42 U.S.C. - OPINION AND ORDER §§ 405 (g) and Dockets.Justia.com 1 1383 (c) (3), to obtain judicial review of a final decision of the 2 Commissioner denying her application for disability insurance 3 benefits (DIB) under Title 11 of the Act. 4 forth below, the Commissioner's decision is affirmed and this 5 case is dismissed. For the reasons set PROCEDURAL BACKGROUND 6 Plaintiff applied for DIB on May 6, 2004, alleging an onset 7 Tr. 8. 8 of disability on June 15, 2002. 9 was denied initially and upon reconsideration. applied for and Plaintiff's application received a On July 27, 2007, 10 plaintiff 11 Administrative Law Judge (ALJ). 12 ALJ denied her disability application. 13 2009, the Appeals Council denied plaintiff's request for review, 14 and the ALJ's decision was made final. Tr. 29. hearing with an On August 15, 2007, the Tr. 39. On April 27, Tr. 5. STATEMENT OF THE FACTS 15 Plaintiff was born on August 30, 1964, and was 42 years old 16 17 on the day of the ALJ hearing. 18 school diploma. 19 bagger, grocery delivery driver, and office clerical assistant. 20 Tr. 38. 21 rheumatoid 22 psoriasis, depression, and anxiety. Tr. 33. Tr. 79. Plaintiff has a high She has past relevant work as a grocery Plaintiff alleged disability since June 15, 2002, due to arthritis, lumbar degenerative disc disease, Tr. 32, 73, 105. STANDARD OF REVIEW 23 24 This court must affirm the Secretary's decision if it is 25 based on proper legal standards and the findings are supported by 26 substantial evidence in the record. 27 498, 501 (9th Cir. 1989). 28 mere scintilla. 2 Hammock v. Bowen, 879 F.2d Substantial evidence is "more than a It means such relevant evidence as a reasonable - OPINION AND ORDER 1 mind might accept 2 Richardson v. 3 Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). 4 The 5 detracts from the Secretary's conclusion." 6 807 F.2d 771, 772 (9th Cir. 1986). court 7 as adequate Perales, must weigh 402 to U.S. "both the a support 389, conclusion." 401 evidence (1971 ) that (quoting supports and Martinez v. Heckler, The initial burden of proof rests upon the claimant to 8 establish disability. 9 (9th Cir. 1986). Howard v. Heckler, 782 F.2d 1484, 1486 To meet this burden, plaintiff must demonstrate 10 an "inability to engage in any substantial gainful activity by 11 reason 12 impairment which can be expected . . . to last for a continuous 13 period 14 423 (d) (1) (A) . 15 of of The any not medically less determinable than Secretary 12 has physical months. or "42 established a five-step mental U.S.C. § sequential 16 process for determining whether a person is disabled. 17 Yuckert, 18 416.920. 19 engaged in "substantial gainful activity." If so, the claimant 20 is 140; 21 404.1520 (b), 416.920 (b) . 22 not 482 U.S. 137, 140 (1987); 20 C.F.R. Bowen v. 404.1520, §§ First the Secretary determines whether a claimant is disabled. Yuckert, 482 U.S. at 20 C.F.R. §§ In step two the Secretary determines whether the claimant 23 has 24 impairments." 25 §§ 26 disabled. 27 28 a "medically step impairment or combination of Yuckert, 482 U.S. at 140-41; see 20 C.F.R. 404.1520(c), In severe 416.920(c). three the If not, Secretary the claimant determines is not whether the impairment meets or equals "one of a number of listed impairments 3 - OPINION AND ORDER 1 that the Secretary acknowledges are so severe as to preclude 2 substantial 3 404.1520(d),416.920(d). 4 presumed disabled; if not, the Secretary proceeds to step four. 5 Yuckert, 482 6 gainful u.s. Id.; activity." If so, 20 ~ C.F.R. §§ the claimant is conclusively at 141. In step four the Secretary determines whether the claimant 7 can still perform "past 8 404.1520(e), 416.920(e). 9 disabled. relevant work. " 20 I f the claimant can work, C. F. R. §§ she is not If she cannot perform past relevant work, the burden 10 shifts to the Secretary. 11 establish that the claimant can perform other work. 12 U.S. at 141-42; 13 If the Secretary meets this burden and proves that the claimant 14 is 15 economy, she is not disabled. ~ In step 20 C.F.R. §§ five, the Yuckert, 482 404.1520(e)-(g), 416.920(e)-(g). able to perform other work which exists 16 Secretary must in the national 20 C.F.R. §§ 404.1566, 416.966. DISCUSSION 17 1. The ALJ's Findings 18 At Step One, the ALJ found that plaintiff did not engage in 19 substantial gainful activity after her alleged onset date, June 20 15, 2002. 21 following medically determinable severe impairments: rheumatoid 22 arthritis and lumbar degenerative disc disease. 23 plaintiff's other alleged impairments of psoriasis, depression, 24 and anxiety, were non-severe. 25 found plaintiff's severe impairments do not meet or equal the 26 requirements of a listed impairment. 27 determined 28 capacity (RFC) to perform the full range of light work, but she 4 Tr. 31 that At Step Two, the ALJ found plaintiff has the plaintiff - OPINION AND ORDER Tr. 32-36. retained The ALJ found At Step Three, the ALJ Tr. the 36. The ALJ then residual functional 1 is precluded form climbing ropes, ladders, and scaffolding. 2 can 3 crouching, and crawling, but no frequent balancing. 4 avoid concentrated exposure to extreme heat, cold, wet/humidity, 5 fumes, dust, and gases. 6 plaintiff retained the capacity to perform her past relevant work 7 as an office general assistant, and therefore, was not disabled. 8 Tr. 38-39. do occasional bending, balancing, Tr. 36-38. stooping, She kneeling, She should At Step Four, the ALJ found 2. Plaintiff's Allegations of Error 9 Plaintiff alleges the ALJ erred at step two based on his 10 11 consideration of the medical evidence. 12 objects to the ALJ's consideration of the medical opinions from 13 four physicians: 14 Gregory Lorts; and Dr. Peter Bonafede. 15 the 16 evidence from her doctors [of] mental impairments" and "provided 17 medical evidence of her psoriasis and resulting limitations." 18 Plaintiff's obj ections are based almost entirely upon medical 19 evidence outside the relevant time period, post-dating her date 20 last insured from at least 6 months and up to 4 years later. 21 Moreover, 22 support her cited statement. 23 period prior to June 2003, she "presented substantial evidence 24 from her doctors [of] mental impairments" and "provided medical 25 evidence of her psoriasis and resulting limitations." (internal 26 citation omitted). 27 23, 2004, and January 3, 2005. 28 substantive limitation, nor do they indicate a severe impairment, 5 period prior Dr. to Gregory Melby; June 2003, Specifically, plaintiff Lawrence Lyon, Ph. D; Dr. Plaintiff argues that for she plaintiff's citations to the "presented substantial record often fail to Plaintiff asserts that for the The documents at those pages are dated March - OPINION AND ORDER Neither document. describes any 1 and they fail to address whether plaintiff in fact 2 even had psoriasis prior to June 30, 2003. Plaintiff next argues that the ALJ "failed to discuss the 3 4 conclusions and treatment notes" 5 disagree. The ALJ specifically noted Dr. 6 evaluation dated 7 plaintiff's date last insured. 8 " [b] ased on all the medical evidence of record," plaintiff's 9 alleged mental health impairments, through her date last insured, February 8, 2007, Drs. Lyon and Melby. I Lyon's consultative nearly 2 11 Tr. 32, 433-38. The ALJ held, 11 Social Functioning, and Maintaining Concentration, Persistence, 12 or Pace, and no episodes of decompensation. 13 regulations and the Ninth Circuit holds that mild psychological 14 impairments are appropriately considered nonsevere. 15 Chater, 16 404 .1520a (d) (1). 17 severe mental impairment prior to June 30, 2003. 520, 522 (9 th Cir. Daily Living, Tr. 32-33. 1996); and 20 The SSA Saelee v. C.F.R. § Plaintiff has failed to present any evidence of During the relevant time period, 18 of after re suI ted in mild F.3d in Acti vi ties years 10 94 limitations of June 2002 through June 19 2003, plaintiff was treated at the Dalles Clinic by Dr. Robert 20 Mishra, and Erika Wilson, PA-C. 21 report of depression was May 27, 22 that, "[iJncidentally, she mentioned that she has been depressed 23 about having chronic pain. and she answers positively to 24 suicidal ideation." Ms. 25 plaintiff 26 excellent response, but she [discontinued taking the medication] 27 as she felt she was doing so well." 28 that treatment with Zoloft was again successful. 6 Tr. 228. Tr. 227-35. "has been treated with - OPINION AND ORDER 2003, Plaintiff's first when Ms. Wilson noted Wilson further noted that Zoloft in the past with an Tr. 228. The record shows On August 13, 1 2003, plaintiff was noted to have an "excellent response" and 2 "near remission of depression symptoms" with Zoloft. 3 226. 4 however, 5 plaintiff 6 plaintiff felt her "depression has remitted." 7 depression diagnosis was then dropped from plaintiff's diagnoses 8 in 9 discontinued her medication and her diagnoses was modified to Tr. 32, Plaintiff then switched to Lexapro for insurance reasons, by September had subsequent an 15, 2003, "excellent visits and Ms. response by May Wilson to 2004, reported Lexapro" that and that Tr. 32, 225. plaintiff had The again 10 seasonal affective disorder. Tr. 32, 219-20, 221-25. Plaintiff 11 fails to a 12 impairment, or combination of impairments, which lasted or was 13 expected to last for a period of twelve months. 14 423 (d) (1) (A) . 15 mental impairment prior to June 30, 2003. 16 to meet her burden show that she had 42 severe u. S. c. § Plaintiff fails to present evidence of a severe Moreover, contrary to plaintiff's assertions, Dr. Melby did 17 not treat plaintiff during the relevant time period. 18 first saw plaintiff on August 2, 2004. 19 not provide any material from Dr. Melby prior to the August 2, 20 2004 date. 21 anxiety, made on December 5, 2006, and May 2, 2007, respectively, 22 were three and four years after her date last insured. 23 be no dispute 24 suffered severe mental impairment prior to June 30, 2004, 25 therefore, they fail to provide substantial evidence of mental 26 impairment. 27 three years prior to his October 2004 disability letter, the ALJ 28 correctly found it conclusory and unsupported by any evidence. 7 Tr. 372. Dr. Melby The record does Therefore, Dr. Melby's diagnoses of depression and that none of these reports There can suggest plaintiff and Also, because Dr. Melby did not treat plaintiff for - OPINION AND ORDER 1 In fact, Dr. Melby had seen plaintiff only twice prior to the 2 October 2004 disability opinion, with the second visit occuring 3 on the date of the letter. 4 Dr. Melby's check-the-box report. 5 finding 6 plaintiff 7 November 2002, 8 actually lists "depression" as the fourth of five problems, and 9 he omits it completely from his "impressions," other than noting was supported asserts I find the ALJ's Step Three by substantial she that by Dr. Similarly, the ALJ properly rejected was evidence. assessed Daniel Sager. Dr. with Finally, depression in Sager's progress note 10 plaintiff's tearfulness in the clinic that day. 11 months later, 12 reference to depression as either a "problem" or "impression." 13 Tr. 14 depression, standing alone, fails to satisfy plaintiff's burden 15 of proving a severe mental impairment. 16 U.S. 212, 217 (2002). 574. 17 I on February 3, find that Dr. 2003, Dr. Tr. 579. Two Sager again omits any Sager's November 2002 reference to Barnhart v. Walton, 535 Plaintiff also asserts that the ALJ failed to consider the 18 medical evidence of Drs. Lorts and Bonafede. 19 ALJ specifically considered these opinions and properly found 20 there 21 impairment. 22 psoriasis arises after plaintiff's date last insured, she fails 23 to prove psoriasis was a severe impairment during the relevant 24 time period. 25 was The no substantial Tr. court 32, evidence 35-36. fails to I disagree. of psoriasis as a The severe Because the only suggestion of find merit in any of plaintiff's 26 remaining allegations of error. 27 was supported by substantial evidence and that the ALJ applied 28 correct legal 8 standards. - OPINION AND ORDER 42 I find that the ALJ's decision U.S.C. § 405 (g); Tommasetti v. 1 Astrue, 533 2 F.3d 1035, 1038 (9 th Cir. omitted) . 3 2008) (internal citation CONCLUSION The 4 Commissioner's decision 5 evidence, and is therefore, affirmed. 6 is based on substantial This case is dismissed. IT IS SO ORDERED. 7 Dated thiS.lq day of October 2010. 8 9 10 11 Ann Aiken United states District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 - OPINION AND ORDER

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