Burnaroos v. Colvin (previously Astrue), No. 2:2012cv03073 - Document 26 (E.D. Wash. 2013)
Court Description: ORDER Granting (ECF 23 ) Defendant's Motion for Summary Judgment (Denying (ECF 16 ) Plaintiff's Motion for Summary Judgment). Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)
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Burnaroos v. Colvin (previously Astrue) Doc. 26 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 SUSAN BURNAROOS, Plaintiff, 8 9 10 11 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 Defendant. 12 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-03073-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 14 BEFORE THE COURT are cross-motions for Summary Judgment. ECF 15 No. 16, 23. Attorney D. James Tree represents Susan Burnaroos 16 (Plaintiff); Special Assistant United States Attorney Summer Stinson 17 represents the Commissioner of Social Security (Defendant). The 18 parties have consented to proceed before a magistrate judge. ECF 19 No. 12. 20 by the parties, the court GRANTS Defendant’s Motion for Summary 21 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. After reviewing the administrative record and briefs filed JURISDICTION 22 23 On August 29, 2008, Plaintiff filed a Title II application for 24 a period of disability and disability insurance benefits, along with 25 a Title XVI application for supplemental security income, both 26 1 Carolyn W. Colvin, the current Acting Commissioner of Social 27 Security, is hereby substituted as the Defendant herein. See FED. 28 R. CIV. P. 25(d)(1). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 alleging disability beginning January 4, 2004. Tr. 10; 146-51. 2 Plaintiff reported that she could not work due to ADHD, OCD, 3 depression, bipolar disorder, anxiety disorder, and PTSD. 4 Plaintiff’s claim was denied initially and on reconsideration, and 5 she requested a hearing before an administrative law judge (ALJ). 6 Tr. 83-128. 7 medical expert Ronald Klein, Ph.D., vocational expert Diane K. 8 Kramer, and Plaintiff, who was represented by counsel, testified. 9 Tr. 33-82. Tr. 179. A hearing was held on October 12, 2010, at which ALJ Marie Palachuk presided. Tr. 33. At the hearing, 10 Plaintiff amended her onset date to January 25, 2006. Tr. 40. 11 ALJ denied benefits on November 5, 2010. 12 matter is before this court pursuant to 42 U.S.C. § 405(g). Tr. 10-22. The The instant STATEMENT OF THE CASE 13 The facts of the case are set forth in detail in the transcript 14 15 of proceedings and are briefly summarized here. 16 hearing, Plaintiff was 29 years old, and she had completed the 17 eighth grade. 18 working at a women’s shelter and organizing donated clothing, taking 19 care of dogs and cats at the Humane Society and working as a cleaner 20 and a maintenance worker at a hotel her mother managed. 21 68-69. Tr. 67. At the time of the Plaintiff’s past jobs included briefly Tr. 56-57; In her past, Plaintiff regularly used marijuana, cocaine, and 22 23 methamphetamine. 24 methamphetamine, and she “used it extensively.” Tr. 298. Plaintiff 25 testified that she has been sober since January 25, 2006. 26 55. 27 28 Tr. 298. Plaintiff’s “drug of choice” was Tr. 54- ADMINISTRATIVE DECISION At step one, ALJ Palachuk found that Plaintiff had not engaged ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 in substantial gainful activity since June 30, 2004. 2 step two, she found Plaintiff had the severe impairments of “drug 3 induced 4 personality disorder with anti-social traits, and methamphetamine 5 abuse, in remission since January 2006 per claimant report . . . .” 6 Tr. 12-13. 7 not have an impairment or combination of impairments that meets or 8 medically equal one of the listed impairments in 20 C.F.R., Subpart 9 P, mood Appendix disorder vs. depressive Tr. 12. disorder, At borderline At step three, the ALJ determined that Plaintiff does 1 (20 C.F.R. §§ 404.1520(d), 404.1526, 10 416.920(d), 416.925 and 416.926). 11 Plaintiff has the residual functional capacity (“RFC”) to perform a 12 full range of work at all exertional levels but with the following 13 nonexertional limitations, “the claimant is limited to simple, 14 routine repetitive tasks involving no more than two-step commands. 15 She should be away from the general public and have superficial 16 contact with small groups of coworkers. 17 time to learn new tasks.” 18 Plaintiff could perform past relevant work as a fast food worker and 19 housekeeper. 20 21 22 23 24 25 26 27 28 Tr. 14. Tr. 13. 404.1525, The ALJ also found that She would need additional At step four, the ALJ found that Tr. 21. STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 2 than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 3 4 5 6 The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 7 8 9 It is the role of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence 10 supports more than one rational interpretation, the court may not 11 substitute its judgment for that of the Commissioner. 12 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 13 Nevertheless, a decision supported by substantial evidence will 14 still be set aside if the proper legal standards were not applied in 15 weighing the evidence and making the decision. Brawner v. Secretary 16 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 substantial evidence exists to support the administrative findings, 18 or if conflicting evidence exists that will support a finding of 19 either 20 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229- 21 1230 (9th Cir. 1987). disability or the If Commissioner’s SEQUENTIAL PROCESS 22 23 non-disability, Tackett, 180 The Commissioner has established a five-step sequential 24 evaluation process for determining whether a person is disabled. 20 25 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 26 137, 140-42 (1987). 27 rests 28 entitlement to disability benefits. upon the In steps one through four, the burden of proof claimant to establish a prima facie case of Tackett, 180 F.3d at 1098-99. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 This burden is met once a claimant establishes that a physical or 2 mental 3 occupation. 4 claimant cannot do his past relevant work, the ALJ proceeds to step 5 five, and the burden shifts to the Commissioner to show that (1) the 6 claimant can make an adjustment to other work; and (2) specific jobs 7 exist in the national economy which claimant can perform. 8 Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). 9 If a claimant cannot make an adjustment to other work in the 10 national economy, a finding of “disabled” is made. 20 C.F.R. §§ 11 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). impairment prevents him from engaging in his previous 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a Batson v. ISSUES 12 13 The question presented is whether substantial evidence exists 14 to support the ALJ's decision denying benefits and, if so, whether 15 that 16 contends that the ALJ erred by finding her testimony about the 17 severity of her symptoms was not credible, by failing to address 18 multiple treating and examining medical source opinions, and by 19 rejecting ADHD as a severe impairment at step two. 20 6. decision is based on 23 legal standards. Plaintiff ECF No. 16 at 5- DISCUSSION 21 22 proper A. Credibility Plaintiff contends that the ALJ erred by finding she lacked 24 credibility. ECF No. 16 at 10-14. Specifically, Plaintiff 25 complains that the ALJ erred by relying upon her statement that she 26 had been receiving mental health treatment in Yakima for five years, 27 when the records revealed she had been receiving treatment in Yakima 28 for two years. Tr. 15; ECF No. 16 at 10-11. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 The ALJ gave several reasons 2 credibility. 3 was that Plaintiff claimed she had been treated at CWCMH in Yakima 4 for five years, or since 2005, but the record revealed no records 5 prior to July 2008. 6 reveals Plaintiff was assessed in May 2008, for a re-evaluation, and 7 an update for any changes to Plaintiff’s condition since her last 8 assessment. 9 Plaintiff’s testimony regarding when she transferred her treatment 10 from the Ellensburg office to the Yakima office was equivocal, and 11 provided only after insistent questioning: See Tr. 15-18. Tr. 15. for discounting Plaintiff’s One of the reasons the ALJ provided As Plaintiff points out, the record Tr. 348; ECF No. 16 at 11. The record reveals Q. ... When did you stop going to Ellensburg Central Washington Comprehensive Mental Health? A. Well, I transferred over here to go to treatment. moved over here to go to treatment. 15 Q. So approximately when – year – 16 A. When I started seeing Nina. 17 Q. Year wise? Did you – stopped going to Ellensburg approximately when? A. It would go with the date of when I saw Nina, started seeing Nina. Q. I’m sorry. I know extremely nervous? A. Yeah. Q. Okay. You’re having a hard time testifying. crying. I’m sorry. 24 A. I’m sorry. 25 . . . 26 A. The year, I can’t remember the year to pinpoint it. I’m sorry. Q. But could you – A. Five years I think. 12 13 14 I 18 19 20 you’re extremely – are you 21 22 23 You’re 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 Q. You think it’s been about five years. Around five years ago you stopped going to the Ellensburg Central Washington Comprehensive Mental Health. Correct? A. 1 Yes. 2 3 4 Tr. 52-53. In light of Plaintiff’s equivocal answer and highly 5 charged emotional state, the ALJ’s characterization of Plaintiff’s 6 uncertainty as dishonesty was not reasonable. 7 Plaintiff’s incorrect guess about the date she transferred her 8 treatment from Ellensburg to Yakima was not a valid reason to 9 discount Plaintiff’s credibility. The ALJ’s use of 10 The Plaintiff also complains that the ALJ erred by finding the 11 testimony of Plaintiff’s mother, Karen Poe, established Plaintiff 12 could perform daily activities that contradicted her claims of total 13 disability. 14 consideration” to Plaintiff’s mother’s third-party function report. 15 Tr. 20; 202-09. 16 Plaintiff is able to perform routine, simple activities of daily 17 living. 18 supported by the record. 19 Plaintiff cares for her own young child, prepares meals, performs 20 routine household chores, and grocery shops, but she has trouble 21 getting along with other people and with concentrating. Tr. 202-07. 22 Where the court concludes that one or more of the ALJ's reasons 23 supporting an adverse credibility finding are invalid, the court 24 examines whether the ALJ's reliance on such reasons was harmless 25 error. 26 2008); Batson, 359 F.3d at 1195-97 (applying harmless error standard 27 where 28 credibility finding was held invalid). The Ninth Circuit explained, ECF No. 16 at 11-12. Tr. 20. The ALJ stated she gave “full The ALJ concluded that the report confirmed The ALJ’s assessment of Ms. Poe’s report is For example, Ms. Poe reported that Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1162 (9th Cir. one of the ALJ's several reasons supporting an ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 adverse 1 "So long as there remains 'substantial evidence supporting the ALJ's 2 conclusions on credibility' and the error 'does not negate the 3 validity of the ALJ's ultimate credibility conclusion,' such [error] 4 is deemed harmless." Carmickle, 533 F.3d at 1162 (quoting Batson, 5 359 6 inaccurate memory of when she transferred treatment from Ellensburg 7 to Yakima was legally insufficient. 8 remains, supported by clear and convincing reasons, for the adverse 9 credibility determination and therefore the error was harmless. 10 B. F.3d at 1197). Here, the finding regarding Plaintiff's However, substantial evidence Medical Opinions 11 Plaintiff argues that the ALJ erred by failing to address the 12 opinions from Drs. Birdelbough, Nordyke, Martini and Toews, and by 13 failing to include the limitations assessed by these doctors in the 14 hypothetical and in Plaintiff’s RFC. 15 is not required to discuss all evidence presented to him. 16 Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (citing 17 Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981)). 18 ALJ need only explain why "significant probative evidence has been 19 rejected." ECF No. 16 at 7-10. The ALJ See Rather, the Vincent, 739 F.2d at 1394-95. 20 1. Jay M. Toews, Ed.D. and Shahm Martini, M.D. 21 Jay M. Towes, Ed.D., examined Plaintiff on March 2, 2002, well 22 in advance of Plaintiff’s onset date, and before Plaintiff stopped 23 using methamphetamine in January 2006.2 Tr. 40; 313-318. Similarly, 24 Shahm 25 slightly before Plaintiff’s onset date and while she was still using Martini, M.D., examined Plaintiff on December 2, 2005, 26 27 2 Plaintiff informed Dr. Toews that she was in substance abuse 28 treatment at the time of the examination. Tr. 313. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 methamphetamine. 2 alleged onset of disability are of limited relevance. Carmickle, 533 3 F.3d at 1165. 4 that Plaintiff is incapable of work.3 In light of the fact that both 5 records were dated prior to Plaintiff’s onset date and date she 6 stopped using methamphetamine, the ALJ was not required to address 7 these because the evidence was neither significant nor probative. 8 2. 9 Dr. Tr. 297-99. Medical opinions that predate the Moreover, neither record reveals a medical opinion Billy R. Nordyke, D.O. Nordyke completed a Documentation Request for Tr. 430-31. In 10 Medical/Disability Condition on January 23, 2008. 11 that 12 preclude her from working for two weeks. 13 Security Act, in order to qualify as a disability, the impairment 14 must be “expected to last for a continuous period of not less than 15 twelve months." 16 physician that a Plaintiff’s impairment will last just two weeks is 17 not significant or probative to determining if Plaintiff is disabled 18 under the Social Security guidelines. form, Dr. Nordyke indicated Plaintiff’s condition Tr. 431. 42 U.S.C. § 423(d)(1)(A). would Under the Social The opinion of a 19 20 3 Dr. Toews noted that Plaintiff reported Wellbutrin helped her 21 feel less depressed and improved her concentration and memory. Tr. 22 315. He opined Plaintiff demonstrated borderline range of 23 intelligence, was capable of routine, repetitive activity and would 24 have difficulty relating to co-workers and would work better in 25 isolation. Tr. 317-18. Dr. Martini noted Plaintiff’s affect was 26 “euthymic-to-happy,” appropriate, and her prognosis was mixed; good, 27 dependent upon her current presentation of wanting to obtain her GED 28 and move on with life, and guarded, based on her history. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 Tr. 299. Dr. Nordyke also examined Plaintiff on July 17, 2008. Tr. 342- 1 2 43. 3 prescribed 4 recommended she return in three months. 5 reveals Dr. Nordyke did not administer any tests, nor did he provide 6 an opinion regarding Plaintiff’s capabilities. 7 Nordyke’s second treatment record provides no opinion related to the 8 duration or severity of Plaintiff’s impairments and, thus, it is 9 neither significant nor probative. 10 Dr. Nordyke diagnosed Plaintiff with depressive disorder, medication including the antidepressant Tr. 343. Celexa, and The record In short, Dr. As a result, the ALJ was not required to address either of Dr. Nordyke’s treatment records. 11 3. Sandy Birdlebough, Ph.D., ARNP 12 Sandy Birdlebough, Ph.D., ARNP, first conducted a psychiatric 13 examination of Plaintiff on August 27, 2008, because Plaintiff was 14 seeking to restart treatment at Central Washington Comprehensive 15 Mental Health. 16 with ADHD, major depression, recurrent, polysubstance dependence in 17 reported remission, rule-out bipolar, and personality disorder, not 18 otherwise specified. 19 a GAF score of 45. 20 weeks 21 Plaintiff, adjusted her medications and assigned her a GAF score of 22 48. 23 major depressive disorder, recurrent, moderate, combined substance 24 dependence, 25 unspecified personality disorder. later, Tr. 345-46. on Tr. 387. Dr. Birdlebough diagnosed Plaintiff Tr. 346. Tr. 346. September Dr. Birdlebaugh assigned Plaintiff Plaintiff began treatment, and a few 10, 2008, Dr. Birdlebaugh examined Dr. Birdlebaugh modified Plaintiff’s diagnoses to unspecified hyperkinetic syndrome, childhood, and Tr. 386. 26 Plaintiff argues that the ALJ erred by failing to address Dr. 27 Birdlebough’s psychiatric exam report and later treatment note, 28 because both records indicate she “still had serious symptoms/ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 impairments, i.e., inability to work, opining a GAF score of 45.” 2 ECF No. 16 at 7. 3 Plaintiff could not work is apparently based solely upon the GAF 4 assessment, because neither medical record contains an explicit 5 opinion that Plaintiff is unable to work. 6 A GAF Plaintiff’s argument that Dr. Birdlebaugh opined score is a rough See Tr. 345-47; 386-87. estimate of an individual's 7 psychological, social, and occupational functioning used to reflect 8 the individual's need for treatment. 9 Manual of Mental Disorders 20 (3rd. ed. rev. 1987). and 50 denotes "serious symptoms A GAF score 10 between 11 ideation, severe obsessional rituals, frequent shoplifting) OR any 12 serious impairment in social, occupational, or school functioning 13 (e.g., no friends, unable to keep a job)." 14 the ALJ has no obligation to credit or even consider GAF scores in 15 the disability determination. 16 (Aug. 21, 2000)("The GAF scale . . . does not have a direct 17 correlation to the severity requirements in our mental disorders 18 listings."). 19 ALJ in formulating the RFC, it is not essential to the RFC's 20 accuracy.” 21 Cir. 2002). 22 41 Diagnostic and Statistical (e.g., DSM-IV at 32. suicidal However, See 65 Fed. Reg. 50746, 50764-65 “While a GAF score may be of considerable help to the Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Plaintiff’s reliance upon the assigned GAF score as a 23 definitive opinion about Plaintiff’s level of disability within the 24 social security context is misplaced. Dr. Birdlebaugh did not offer 25 an explicit opinion that Plaintiff was incapable of work under the 26 Social Security Administration guidelines. As such, the ALJ was not 27 required to address Dr. Birdlebough’s opinion. 28 Moreover, the circumstances of the examinations reveal Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 Birdlebough’s opinion was not material to the ALJ’s disability 2 determination. 3 exam that was based solely upon Plaintiff’s subjective reports, and 4 thus was not material or probative to the disability determination. 5 Tr. 345-46. 6 2008) (an ALJ may reject a physician's opinion if it is based to a 7 large extent on plaintiff's self- reports that have been properly 8 discounted as incredible); see also Thomas v. Barnhart, 278 F.3d 9 947, 957 (9th Cir. 2002) ("The ALJ need not accept the opinion of any 10 physician, including a treating physician, if that opinion is brief, 11 conclusory, and inadequately supported by clinical findings."). 12 Additionally, at the time of the exam, Plaintiff was not regularly 13 taking medication that alleviated her symptoms and, thus, her 14 condition on that date was not illustrative of Plaintiff’s actual 15 abilities. 16 1006 (9th Cir. 2006) (impairments that are effectively controlled 17 with medication are not disabling). As a result, the evaluations by 18 Dr. Birdlebough do not amount to significant, probative evidence 19 and, thus, the ALJ was not required to address this opinion. 20 ALJ did not err. The August 27, 2008, exam was essentially an intake See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, The 21 4. Nina Rapisarda, M.S.W. 22 The Plaintiff contends that the ALJ erred by rejecting the 23 opinions of Nina Rapisarda, Plaintiff’s treating therapist. ECF No. 24 16 at 17-18. 25 medical source statement for several reasons. 26 noted that Ms. Rapisarda’s assessment was contradicted by her 27 treatment records, by Plaintiff’s activities of daily living, by 28 other medical assessments in the record, and the assessment was made The ALJ gave little weight to Ms. Rapisarda’s mental Tr. 21. The ALJ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 when Plaintiff was not 2 taking controlled her symptoms. medication that had previously Tr. 21. 3 Plaintiff argues that Ms. Rapisarda is a treating source, and 4 her assessment was consistent with the medical record as a whole. 5 However, 6 meaningful analysis to support her allegation. ECF No. 16 at 17-18; 7 ECF No. 24 at 5. The court ordinarily will not consider matters on 8 appeal not 9 appellant’s opening brief. 10 Plaintiff that are fails to cite specifically to the and record, distinctly or argued provide in an See, Carmickle, 533 F.3d at 1161 n.2 (9th Cir. 2008). 11 Notwithstanding Plaintiff’s failure to adequately brief the 12 issue, the ALJ’s reasons for giving little weight to Ms. Rapisarda’s 13 opinion are specific and legitimate. 14 (internal inconsistencies within a physician's report supports the 15 decision 16 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (ALJ permissibly 17 rejected 18 observations); 19 416.927(d)(2) 20 depends in part on whether it is consistent with other evidence in 21 the record); and see Warre, 439 F.3d at 1006 (impairments that are 22 effectively 23 Moreover, the ALJ’s specific and legitimate reasons for rejecting 24 Ms. Rapisarda’s mental medical source statement are supported by the 25 record. 26 not err by giving little weight to the opinion of Ms. Rapisarda. 27 C. 28 to discount treating the opinion physician's and see (weight controlled 20 given with See, Morgan, 169 F.3d at 603 of a opinion C.F.R. to a physician); containing §§ 404.1527 treating medication See Tr. 382-91; 420-22; 434-61. Bayliss contradictory (d)(2) physician's are not v. and opinion disabling). As a result, the ALJ did Step Two Plaintiff contends that the ALJ erred by failing to find ADHD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 among her severe impairments. ECF No. 16 at 14-16. 2 the ALJ found Plaintiff had severe impairments of “drug induced mood 3 disorder vs. depressive disorder, borderline personality disorder 4 with anti social traits, and methamphetamine abuse, in remission 5 since January 2006 per claimant report.” 6 the sequential evaluation, the ALJ determines whether a claimant 7 suffers from a "severe" impairment, i.e., one that significantly 8 limits the physical or mental ability to do basic work activities. 9 20 C.F.R. §§ 404.1520, 416.920(c). Tr. 12-13. At step two, At step two of At step two, a claimant must 10 make a threshold showing that her medically determinable impairments 11 significantly limit her ability to perform basic work activities. 12 See Bowen, 482 U.S. 137; 20 C.F.R. §§ 404.1520(c), 416.920(c). 13 "Basic work activities" refers to "the abilities and aptitudes 14 necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b). 15 To satisfy step two's requirement of a severe impairment, the 16 claimant must prove the existence of a physical or mental impairment 17 by providing medical evidence consisting of signs, symptoms, and 18 laboratory findings; the claimant's own statement of symptoms alone 19 will not suffice. 20 medically determinable condition exists does not automatically mean 21 the symptoms are "severe," or "disabling" as defined by the Social 22 Security regulations. 23 v. Bowen, 885 F.2d 597, 602-03 (9th Cir. 1989); Key v. Heckler, 754 24 F.2d 1545, 1549-50 (9th Cir. 1985). 20 C.F.R. §§ 404.1508, 416.908. The fact that a See, e.g., Edlund, 253 F.3d at 1159-60; Fair 25 In this case, the ALJ found that Plaintiff complained of ADHD, 26 but she reported related symptoms only prior to her sobriety date. 27 Tr. 28 Plaintiff’s reported ADHD symptoms existed during her period of 19. The record supports the ALJ’s determination ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 that 1 methamphetamine and cocaine use. 2 Ed.D., examined Plaintiff and noted several times that she was 3 evasive about substance abuse. 4 Plaintiff with methamphetamine and cocaine dependence and alcohol 5 abuse in self-reported remission with rule-out substance abuse, and 6 “Attention 7 complicated by substance abuse.” Deficit In March 2002, Jay M. Toews, Tr. 316-17. Hyperactivity Dr. Toews diagnosed Disorder, impulsive type, Tr. 318. 8 In April 2004, examining psychiatrist Paul Michels, M.D., 9 opined, “I don’t think there is clear evidence for a diagnosis of 10 ADHD. Instead, she seems to describe a lack of interest in 11 motivation consistent with her severe character disturbance.” 12 312. 13 chose to not medicate her ADHD. 14 see Warre, 439 F.3d at 1006. 15 Plaintiff 16 obtaining 17 significantly limited her ability to do basic work activities. Tr. Also, as the ALJ found, for a significant period Plaintiff failed to sobriety, carry she her See, e.g, Tr. 541; 549; 557; and In light of the medical evidence, burden suffered to from establish ADHD that after symptoms that 18 Moreover, an ALJ's error in failing to find a severe impairment 19 at step two may be harmless, where ALJ considered the limitations 20 resulting from the impairment later in the sequential disability 21 evaluation process. 22 2007); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 23 this case, Plaintiff’s RFC accommodated ADHD-related difficulties 24 Plaintiff might experience with sustained concentration by limiting 25 her to “simple, routine repetitive tasks involving no more than two 26 step commands.” 27 find ADHD as a severe impairment was error, such error was harmless. 28 Accordingly, on this record, the ALJ did not err in failing to find Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. Tr. 14. In As a result, even if the ALJ’s failure to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 ADHD as a severe impairment at step two. CONCLUSION 2 3 Having reviewed the record and the ALJ's findings, the court 4 concludes the ALJ's decision is supported by substantial evidence 5 and is not based on legal error. 6 IT IS ORDERED: 7 1. Accordingly, 8 Defendant’s Motion for Summary Judgment, ECF No. 23, is GRANTED. 9 2. 10 Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 11 The District Court Executive is directed to file this Order and 12 provide a copy to counsel for Plaintiff and Defendant. Judgment 13 shall be entered for DEFENDANT and the file shall be CLOSED. 14 DATED September 30, 2013. 15 16 S/ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16
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