Brink v. Commissioner Social Security Administration, No. 3:2012cv01131 - Document 15 (D. Or. 2013)
Court Description: OPINION AND ORDER. For the reasons set forth above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. Signed on 04/24/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Case No. 3:12-cv-01131-MA DANIEL BRINK, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. JAMES S. Swanson, 820 S.W. Portland, COON Thomas, Coon & Newton Second Avenue, Suite 200 Oregon 97204 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 LEISA A. WOLF Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge: Plaintiff Daniel Brink brings this action for judicial review of a final decision of the Commissioner of Social Security denying his application for Supplemental Security Income benefits (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. and 42 U.S.C. .405(g) §§ § § For the reasons set forth 1383(c) (3). below, I AFFIRM the final decision of the Commissioner. PROCEDURAL BACKGROUND The This case has a long and complicated procedural history. 2, 2001, with pages, few Plaintiff first applied for SSI on incidences of duplication. January 1,812 constitutes Court this before record alleging effectively of as disability the application date due to residual pain from gunshot wounds sustained depression, in 2000, borderline intellectual His addiction. reconsideration. Judge (ALJ) functioning, application was the ALJ hyperactivity disorder, and denied drug alcohol and initially upon and A hearing was held before Administrative Law Joseph Schloss on May 5, plaintiff admitted hearing; attention deficit that he had 2003. While testifying, smoked marijuana prior immediately adjourned the proceedings, to the to be rescheduled at a time when plaintiff was not under the influence. Accordingly, on June 19, 2003, a supplemental hearing was held. On September 5, 2003, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. 2 - OPINION AND ORDER After the Appeals Council plaintiff filed a complaint in this Court. declined review, July 28, the 2005, Honorable Ann Aiken issued a On decision determining that the ALJ erred and remanded the case for further proceedings. On August 9, 2004, while plaintiff's appeal was pending, filed a second application for SSI. he His application was denied initially and upon reconsideration, after which he timely requested a hearing. . On March 13, plaintiff's consolidated unfavorable decision. 2006, SSI after a third hearing regarding claims, the ALJ issued another The Appeals Council again declined review, after which plaintiff filed a second complaint in this Court. Honorable Michael Hogan affirmed the ALJ's decision. plaintiff filed an appeal with the Ninth Circuit. The Thereafter, On August 18, 2009, the Ninth Circuit reversed the ALJ's decision and issued a remand order (Remand Order), instructing the ALJ to clarify his hypothetical to the Vocational Expert (VE) and determine whether jobs exist in the national economy that plaintiff could perform. Following this Order, the Appeals Counsel vacated the ALJ's 2006 decision and remanded the matter for further proceedings consistent with the Order. A fourth hearing was held on December 23, 2010 before ALJ Dan Hyatt, at which plaintiff testified and was represented by counsel. At the hearing, it was determined that plaintiff would undergo a psychological evaluation. On August 4, 2011, a fifth hearing was held, at which plaintiff was represented by counsel and testified, 3 - OPINION AND ORDER as did a VE. On August 26, 2011, the ALJ issued the third decision finding plaintiff not disabled. After the Appeals Council declined review, plaintiff filed this appeal. FACTUAL BACKGROUND 1980, Born on August 6, plaintiff was 20 years old on the alleged onset date of disability and 31 years old at the time of Plaintiff has a sixth grade education. the fifth hearing. previously laborer. worked as a landscape laborer and automotive He shop Plaintiff receives daily support and assistance from his grandmother, with whom he has also lived periodically throughout the SSI application process. Plaintiff has had numerous problems periods of incarceration and probation. with law, including During his adolescence, plaintiff was sexually abused by his probation officer; at the time of the last hearing, plaintiff was receiving monthly income from a civil settlement arising from that abuse. 1 In addition, plaintiff has a long history of alcohol and drug abuse, 1 including cocaine, As the ALJ noted, plaintiff's resources from this settlement, which equaled approximately $6,000 at the time of the (Tr. 1786, 1431.) 2010 hearing, may make him ineligible for SSI. Because the SSI program was enacted to provide financial assistance to "needy people" who are disabled, the claimant must meet certain income and resource requirements in order to be to See Hart v. Bowen, 799 F.2d 567, 569 (9th entitled to benefits. Cir. 1986) (citing 42 U.S.C. §§ 1381, 1382; 20 C.F.R. § 416.1205(a)); see also 20 C.F.R. § 416.110(a). Notably, a single SSI recipient may not receive benefits for any month in which his See 42 U.S.C. § 1382(a); 20 countable resources exceed $2,000. There is no evidence in the record C.F.R. §§ 416.1205, 416.1201. relating to whether this settlement qualifies for exception from plaintiff's countable resources pursuant to 42 U.S.C. § 1382b. 4 - OPINION AND ORDER gasoline, heroin, LSD, marijuana, hearing, 2010 that, testified plaintiff At the and methamphetamines. occasionally and smoking marijuana, drinking from aside for which he holds a medical marijuana card, he is no longer abusing substances. THE ALJ'S DISABILITY ANALYSIS Commissioner The has established a sequential five-step process for determining whether a person is disabled. Bowen v. 416.920. Each step Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § is potentially dispositive. The claimant bears the burden of proof at Steps One through Four. See Tackett v. Apfel, 180 F.3d 1094, 1098 The burden shifts to the Commissioner at (9th Cir. 1999). Step Five to show that a significant number of jobs exist in the national economy that the claimant can perform. Yuckert, 482 U.S. at 141-42. At Step One, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date. C.F.R. §§ See 20 416.920(b), 416.971 et seq. At Step Two, the ALJ found that plaintiff has the following severe residuals impairments: from multiple gunshot wounds, including chronic pain due to lumbar regional spondylosis with myelopathy; an organic mental disorder; an affective disorder; an anxiety disorder; a personality disorder; polysubstance abuse; and cannabis dependence. 416.920(c). 5 - OPINION AND ORDER a history See 20 C.F.R. of § At Step Three, the ALJ found that plaintiff's impairments, either singly or in combination and including the substance use disorders, 12.09. did not meet listings 12.02, See 20 C.F.R. The ALJ §§ 12.04, 12.06 1 12.08, or 416.920(d), 416.925, 416.926. determined that, including the substance use disorders, plaintiff has the residual functional capacity ("RFC") to perform light exertion work except that he needs to change position at will. He can occasionally kneel, crouch, and crawl. He can frequently engage in reaching with the right dominant upper extremity. He is limited to simple repetitive tasks of one to three steps, involving no contact with the general public and no more than occasional interaction with cocorkers. In addition, he experiences marked deficits in concentration, persistence or pace on an occasional basis, i.e. up to one-third of the workday. (Tr. 1293.) See 20 C.F.R. §§ 416.927, 416.929. At Step Four, work. the ALJ found plaintiff had no past relevant See 20 C.F.R. At Step Five, § 416.965. the ALJ found that considering his age, education, work experience, and RFC, including his substance abuse disorders, there are no jobs that exist in significant numbers in the national economy that plaintiff can perform. See 20 C.F.R. §§ 416.960(c), 416.966. However, the ALJ also found that plaintiff's substance abuse was a material factor in causing his disability. 1382c(a) (3) (J). See 42 U.S.C. § Thus, the ALJ continued the evaluation process to determine how plaintiff's medical impairments affected his ability to work absent his substance abuse. 6 - OPINION AND ORDER See 20 C.F.R. § 416.935. The ALJ reassessed plaintiff's impairments and determined that, if he stopped using substances, he would have the RFC to perform light work except that he needs to change position at .will. He can occasionally kneel, crouch, and crawl. He can frequently engage in reaching with the right dominant upper He is limited to simple repetitive tasks of extremity. one to three steps involving occasional interaction with (Tr. 1298.) others. See 20 C.F.R. §§ 416.927, 416.929. Because plaintiff had no past relevant work, the ALJ proceeded to Step Five and found that, if plaintiff stopped the substance use, and considering his age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that plaintiff can perform. 416.965, 416.966. See 20 C.F.R. §§ 416.960(c), The ALJ therefore concluded that plaintiff is not disabled within the meaning of the Act. ISSUE ON REVIEW Plaintiff asserts that the ALJ erred by failing to comply with the Remand Order. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Andrews v. Shalala, 53 F. 3d 1035, 1039 42 U.S.C. § (9th Cir. 1995). "Substantial evidence means 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." 7 - OPINION AND ORDER Id. The court must weigh all the evidence, whether it supports or detracts Martinez v. Heckler, 807 F.2d from the Commissioner's decision. 771, (9th Cir. 772 upheld, if even The Commissioner's decision must be 1986). the one rational interpretation. to susceptible is evidence than more Andrews, 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." 253 F. 3d 1152, Edlund v. Massanari, 1156 (9th Cir. 2001). DISCUSSION Plaintiff contends that the ALJ was required to "include [a] as limitation to or persistence concentration, pace" in the dispositive hypothetical question posed to the VE at Step Five pursuant to constitutes the Remand reversible the Order; error immediate payment of benefits. 2 and entitles not specifically 2 to plaintiff do to so the (Plaintiff's Opening Brief (#12) p. 6-10; Plaintiff's Reply Brief (#14) p. 5.) does failure ALJ's challenge any of Plaintiff, however, the ALJ's findings, Plaintiff also suggests that, because the "Ninth Circuit previously identified only one outstanding issue," the ALJ was acting outside of the Remand Order by requiring an additional evaluation and undertaking the entire sequential process anew. (Plaintiff's Opening Brief (#12) p. 11; Plaintiff's Reply Brief (#14) p. 4-6; Tr. 1795.) While the Remand Order outlines certain areas for reconsideration, it does not articulate exactly what In fact, because procedures the ALJ may or may not use to do so. Remand Order specifically instructed the ALJ to "clarify the the hypothetical," which must be based on the record as a whole, the ALJ was required to reevaluate the evidence, especially the new evidence that emerged after the 2006 ALJ decision, and (Tr. 1316.) reformulate the RFC. 8 - OPINION AND ORDER including his determinations regarding plaintiff's credibility, his analysis of the medical evidence, or his finding that plaintiff's (See generally id.) drug and alcohol abuse was material. I. Compliance with the Remand Order The reviewing court's remand order may "detailed include instructions concerning the scope of the remand, the evidence to be adduced, and the legal issues factual or Sullivan v. Hudson, 490 U.S. 877, 885-86 (1989) addressed.n be to (citation omitted). The ALJ "shall take any action that is ordered by the Appeals Council 3 and may take additional any that action 416.1477(b); see also 20 C.F.R. In this case, §§ not 20 C.F.R. inconsistent with the Appeals Council's remand order.n § is 416.1483, 416.1484. the Ninth Circuit held that, because the ALJ found that plaintiff was moderately impaired in concentration, persistence, or pace and "did not equate 'simple, repetitive work' with work requiring concentration, persistence, or pace, conclusion that plaintiff substantial evidence. was (Tr. not disabled 1314-16.) As a n not was result, the ALJ' s based on the Ninth Circuit concluded that the "hypothetical question to the vocational expert should have included not only the limitation to repetitive work,' but also Brink's concentration, persistence, or pace.n 3 moderate 'simple, limitations (Tr. 1315-16.) in Accordingly, The Appeals Council "remand[ed] this case to an Administrative Law Judge for further proceedings consistent with (Tr. 1318.) Therefore, Ninth Circuit's the order of the court .. n Remand Order is synonymous with that of the Appeals Council in this case. 9 - OPINION AND ORDER the Ninth Circuit remanded plaintiff's claim ftso that the ALJ can clarify his hypothetical and determine whether Brink is able to perform gainful employment in the national economy.n (Tr. 1316.) psychological evaluation, On remand, the ALJ ordered a reassessed the five-step sequential process, including plaintiff's RFC and the hypothetical question posed to the VE, and found that plaintiff was not disabled he when was not using substances. Because he does not raise any errors outside of the ALJ's alleged lack of compliance with the Remand Order,' plaintiff neglected to provide a basis to reverse and remand the ALJ's decision. This is because failure to follow a remand order is not a proper basis for the reviewing court to reverse or remand the ALJ's final decision regarding a claimant's disability. Soc. Sec. Admin., See Strauss v. Comm'r of the 635 F.3d 1135, 1136-1138 (9th Cir. 2011) (court erred in awarding benefits for failure to follow remand orders from the Appeals Council and district court, without determining whether the claimant was disabled) . Rather, ft[t]he ALJ's errors are relevant only as they affect analysis that on the 4 merits. A claimant is not entitled to The court ftordinarily will not consider matters on appeal that are not specifically and distinctly arguedn in the Carmickle v. Comm'r, Soc. Sec. Admin., 533 claimant's briefs. n.2 (9th Cir. 2008) (citation and internal F.3d 1155, 1161 quotations omitted); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n. 7 (9th Cir. 2009) (arguments not raised in the claimant's opening brief are ftdeem[ed] waivedn); see also McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (as amended) (ft[w]here harmfulness of the error is not apparent from the circumstances, the party seeking reversal must explain how the error caused harmn). 10 - OPINION AND ORDER the under benefits unless statute is, claimant the in disabled, no matter how egregious the ALJ' s errors may be." Thus, 1138. fact, Id. at irrespective of whether the ALJ complied with the the issue before this Court is whether the ALJ's Remand Order, decision is based on substantial evidence and is free of legal See Strauss, error. 635 F. 3d at 1138; see also Wick v. As true, 2009 WL 2393106, *2-15 (D.Or. July 31, 2009) with the Ninth Circuit's remand but order the to other (citing plaintiff) Hernandez-Devereau x v. 2009) issues Astrue, raised expressly 614 and at U.S. 490 Sullivan, reversal only was found harmful error in warranted to the extent that the court regard (ALJ failed to comply F.Supp.2d 1125, argued by 885-86); 1134 (D.Or. ("to the extent that the ALJ here failed to properly follow the [remand] instructions, she committed reversible error unless the errors were harmless, i.e., they would not have affected the ALJ' s ultimate (citation conclusions") omitted). Accordingly, because the Remand Order concerns the RFC and Step Five finding, the Court will review these aspects of the ALJ's decision in order to provide the most complete review of this appeal. II. RFC Assessment and Step Five Finding The RFC is the most a claimant can do despite his limitations. See 20 C.F.R. § 416.945(a) (1). In assessing the RFC, the ALJ must consider limitations imposed by all of a claimant's impairments, even those that are not severe. WL 374184, *1-5; Robbins v. 11 - OPINION AND ORDER See SSR 96-8p, available at 1996 Soc. Sec. Admin., 466 F.3d 880, 883 In addition, the ALJ is required to consider all (9th Cir. 2006). the medical evidence and assess the weight to be afforded each See 20 C.F.R opinion. limitations incorporate "hypothetical 416.927. § the on found [to the VE must be) the RFC need only However, record and ALJ's the based on medical assumptions supported by substantial evidence." Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). It in well-established is this District ¢ "the that term does not necessarily indicate a degree of limitation 'moderate' Davis v. that must be expressly reflected in the RFC assessment." Astrue, 2012 WL 4005553, *10 (D.Or. June 12), adopted by 2012 WL 3614310 (D.Or. Aug. 21, 2012) (citing Bagby v. 2012 WL Astrue, 1114298, *10 (D.Or. Feb. 7), adopted by 2012 WL 1114288 (D.Or. Apr. 3, 2012); and Hoopai v. Astrue, 499 F. 3d 1071, 2007) ) ; see also West v. As true, 2012 WL 3202079, *7 13), adopted by 2012 WL 3186091 Astrue, 2012 WL 5037257, *8 (D. Or. Aug. 2, (9th Cir. 1077 (D. Or. July 2012); Cruise v. (D.Or. Sept. 28), adopted by 2012 WL 4966462 (D.Or. Oct. 17, 2012); Arnold v. Astrue, 2012 WL 6025744, *5 (D.Or. Dec. 4, 2012). Moreover, "an RFC to perform simple, repetitive tasks can be sufficient to accommodate a claimant's moderate limitations abilities." in attention, concentration, and social Davis, 2012 WL 4005553 at *10-11 (citations omitted); Sabin v. Astrue, 337 Fed.Appx. 617, 620-21 (9th Cir. 2009) 5 (ALJ did The parties have not cited to, and the Court is not aware of, any published Ninth Circuit precedent that addresses this precise issue. 12 - OPINION AND ORDER not err in that, determining despite moderate difficulties in concentration, persistence, or pace, claimant could perform "simple and repetitive tasks on a consistent basis"); Rogers v. Comm'r of Soc. Sec. Admin., 490 Fed.Appx. 15, 17-18 (9th Cir. 2012) (same). The dispositive inquiry is whether the ALJ's RFC assessment is supported by substantial evidence. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) ("an ALJ's assessment of a claimant adequately captures restrictions related to concentration, pace where the assessment in the medical persistence, or restrictions identified is consistent testimony") with (citations omitted); Bickford v. Astrue, 2010 WL 4220531, *11 (D.Or. Oct. 19, ("so 2010) long as the ALJ' s supported by medical is decision evidence, a limitation to simple, repetitive work can account for moderate difficulties in concentration, persistence or pace") (citations omitted); Gillock v. Astrue, 2011 WL 2011 WL 4916499, *5 (D.Or. June 29), adopted by 2011 WL 4935996 (D.Or. Oct. 17, 2011) (same) . This is because, as the ALJ noted, the term "moderate" does not inherently translate to a concrete functional limitation. 1305; see also Tr. across Rather, 1801 (VE testifying that he has "never come the definition of moderate" the mild, (Tr. moderate, in the context of a or severe limitations, RFC) . ) in the broad categories of activities of daily living, social functioning, and concentration, persistence, or pace, that are assessed as part of the psychiatric review technique "are not an RFC assessment but are 13 - OPINION AND ORDER used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process." 1996 WL 374184, *4. 6 the assessment by available at The "RFC assessment used at steps 4 and 5 of evaluation sequential SSR 96-Bp, itemizing process various requires a detailed more This functions." more detailed assessment is based on all of the relevant evidence of record, including "statements about what you can still do made by nonexamining physicians and psychologists." 20 C.F.R. § 416.913(c); see also SSR 96-Bp, available at 1996 WL 374184, *5; Rogers, 490 Fed.Appx. at 17-18 (moderate impairments assessed on a psychiatric review technique form "in broad functional areas used at steps two and three" did not equate to concrete work-related limitations for RFC; rather, "the RFC assessment adequately captures restrictions in broad functional areas if it is consistent with the concrete limitations in the medical opinions") . In this case, the medical opinions and other evidence support a finding that plaintiff is capable of simple, repetitive tasks, consisting of one to three steps, despite any moderate limitations in concentration, persistence, or pace. For example, plaintiff testified at the December 2010 hearing that he spends his days 6 Plaintiff asserts that the ALJ's reliance on the Social Security Rulings was erroneous because "Social Security Rulings (Plaintiff's do not supersede orders from the Court of Appeals." Even assuming that plaintiff is Opening Brief (#12) p. 7.) correct, it is equally erroneous for an ALJ to disregard the See Orn v. Astrue, 495 F.3d 625, 635-36 Social Security Rulings. 2007) (citations omitted). Thus, the ALJ was required (9th Cir. to follow the Social Security Rulings. 14 - OPINION AND ORDER "tak[ing) care of my puppies and rid[ing) my bike and pretty much He also reported (Tr. 1780, 1298.) just maintain[ing] the house." that he can read and watch television or movies, and can "follow what's going on." In addition, Dick Wimmers, (Tr. 1782, 1298.) Ph.D., a consulting source who reviewed the record in April 2001, marked on a "Psychiatric Review Technique" form that plaintiff has (Tr. moderate limitations in concentration, persistence, or pace. 4 76.) Dr. Wimmers concluded that plaintiff In assessing an RFC, extended for "is able to maintain attention and concentration periods when performing simple tasks" and, as such, his impairment in this would category a [or). short restriction to "simple two or three step operations simple instructions." with accommodated adequately be (Tr. 480-82.) Similarly, Bill Hennings, Ph.D., a consulting source, opined in November 2001 that, despite plaintiff's moderate limitation in or persistence, concentration, capable was he pace, of: remembering, understanding, and carrying out simple two to three step instructions; performing decisions. within maintaining a schedule; (Tr. 614-16, 610.) concentration and making for simple simple tasks; work-related In December 2004, Paul Rethinger, Ph.D., a consulting source, determined that, while plaintiff was moderately impaired in concentration, persistence, retained "the capacity to understand, remember simple instructions" on a sustained basis. Accordingly, Dr. Rethinger 15 - OPINION AND ORDER "restricted or pace, [and) he carry out (Tr. 1104-06, 1075). [plaintiff) to simple, ( Id.) routine type work" in order to account for this impairment. Robert Henry, affirmed Dr. Ph.D., opinion in April Rethinger' s (Tr. 1108.) 2005. The ALJ fully credited the opinions of Drs. and Henry found "'moderate' that· plaintiff's Rethinger and in impairment concentration, persistent and pace expressed in work related terms equates to a restriction to simple repetitive tasks of one to three steps." (Tr. assessment expressly of Plaintiff does not challenge the ALJ's 1305-06.) the medical evidence this incorporated and, restriction hypothetical question posed to the VE. into the ALJ the additionally, dispositive (Tr. 1298, 1800.) Moreover, plaintiff's most recent psychological examination', which was performed by Gregory Cole, on March 19, Ph.D., 2011, indicates that this restriction is sufficient to account for his (Tr. moderate limitation in concentration, persistence, or pace. 1756-1769.) During the examination, plaintiff stated that he showers, cooks, washes dishes, and does laundry daily, and sweeps, mops, and vacuums once a week; he also stated that he enjoys riding his bicycle and playing video games. remarked also that he had (Tr. 1759-60.) smoked marijuana earlier despite the ALJ's express instruction not to do so, Plaintiff that day, and became "increasingly agitated because he was not able to smoke marijuana 7 Prior to his examination with Dr. Cole, plaintiff had not (Tr. 1391-93.) received mental health treatment since May 2008. These treatment notes, from 2007 and 2008, do not outline any (Tr. 1393-1437.) functional limitations. 16 - OPINION AND ORDER [during testing], and then he appeared to diminish his efforts of tasks requested of him." 1765, (Tr. As such, 1788.) Dr. Cole recommended that plaintiff would benefit from follow-up substance abuse treatment services. (Tr. 1764.) Further, Dr. Cole reported that plaintiff "did not appear to give his best effort" and his personality inventory "suggested the possible exaggeration of symptomology; which brings up the question as to the possibility of malingering." Cole Dr. that, noted difficulty sustaining simple, mild problems Accordingly, plaintiff was routine tasks, completing more pursuant to SSR 96-8p, in Dr. his have to observed he experienced only (Tr. complicated tasks. restricted not was plaintiff while For instance, (Tr. 1765.) Cole ability 17 64.) concluded to that understand, remember, and carry out simple instructions, and to make judgments on simple work-related decisions, on a (Tr. sustained basis. 17 67. ) The ALJ gave "little weight" to this assessment "in light of and Dr. the claimant's use of marijuana prior to testing Cole's diagnosis of possible malingering." (Tr. 1303.) Nonetheless, the Court notes that the most recent medical evidence from Dr. Cole is largely consistent with that from Drs. Wimmers, Hennings, Rethinger, and Henry. Lastly, plaintiff does not identify any evidence evincing that he is unable to perform simple, routine tasks on a sustained basis despite his moderate impairment in concentration, persistence, or pace. 17 - OPINION AND ORDER The Court's own review of the record reveals that some of plaintiff's treating or examining doctors have opined, as recently as 2007, that he was more limited 1139-41, Ph.D., 1151, 1187-89, 1608-11.) 1049-56, (Tr. in this category or outright disabled. For instance, 1118-24, John Thickins, reported in March 2004 that plaintiff "is trainable in a trade or vocation [but] should receive social security benefits so he can live independently and become more self-sufficient.n 1118-24.) Ph.D., concrete However, restrictions 2006, Cynthia Steinhauser, Brink is simply a disabled individual. stated that "Mr. 1139-41.) (Tr. in January In addition, (Tr. these doctors did not articulate any plaintiff's concerning n impairment in concentration, persistence, or pace and, further, the ALJ addressed each of these doctors' opinions and rejected them, findings which plaintiff does not now challenge. 8 (Tr. 1302-05.) Therefore, the ALJ translated plaintiff's moderate limitation in concentration, restriction - i.e. persistence, for simple, outlined steps in the or pace into the only concrete repetitive tasks of one to three medical evidence. Because this determination is reasonable in light of the entire record and is supported by substantial evidence, finding are affirmed. 8 the ALJ' s RFC and Step Five See Osenbrock, 240 F.3d at 1163-65; see also The Court also notes that, while not dispositive, plaintiff was abusing illegal drugs and alcohol concurrent with many of these assessments. As the ALJ acknowledged, the last reference in the record to plaintiff's substance abuse, outside from his use of medical marijuana, is from 2008 when he reported (Tr. 1300, 1398-99.) drinking daily. 18 - OPINION AND ORDER Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (the court "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation") . As such, to the extent that the ALJ erred in failing to follow the Remand Order, such an error was harmless. Cir. 2012); See Molina v. Astrue, 674 F.3d 1104, 1115 (9th see also Hamilton v. Astrue, 2012 WL 3314303, *7-11 (D.Or. June 15), adopted by 2012 WL 3312366 (D.Or. Aug. 10, 2012) (in a nearly identical case, the court found that the ALJ's failure to comply with the remand order was harmless error because the medical evidence of record established that the plaintiff was capable of performing simple, routine tasks despite her impairment in concentration, persistence, or pace) . CONCLUSION For the reasons set forth above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. DATED this /t~ day of April, 2013. Malcolm F. Marsh United States District Judge 19 - OPINION AND ORDER
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