IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

JOHN T. RIVERA, 

Plaintiff, 

V. 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

Richard F. Mc Ginty 

McGinty & Belcher, Attorneys 

P.O. Box 12806 

Salem, OR 97301 

Attorney for plaintiff 

Janice E. Hebert 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97201 

Lars J. Nelson 

Social Security Administration 

Office of the General Counsel 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, Washington 98104 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case No. 6:15-cv-00796-AA 

OPINION AND ORDER 

Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 1 of 8
AIKEN, Judge: 

Plaintiff John T. Rivera brings this action pursuant to the Social Security Act ("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 plaintiffs applications for Supplemental Security 

Income ("SSI") and Disability Insurance Benefits ("DIB"). For the reasons set forth below, the 

Commissioner's decision is affirmed. 

BACKGROUND 

On June 22, 2011, plaintiff applied for SSI and DIB. Tr. 276, 281. He alleged disability 

beginning August 31, 2007 due to attention deficit hyperactivity disorder, post-traumatic stress 

disorder with agoraphobia, major depressive disorder, and various learning disorders. Tr. 397. His 

applications were denied initially and upon reconsideration. Tr. 136, 153, 172, 189. On February 

20, 2014, a hearing was held before an Administrative Law Judge ("ALJ"). Tr. 230. Plaintiff, 

represented by counsel, testified, as did a vocational expert ("VE"). Tr. 7. On May 23, 2014, the 

ALJ issued an unfavorable decision. Tr. 92. After the Appeals Council denied his request for review, 

plaintiff filed a complaint in this Court. Tr. 1. 

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) (internal quotation marks omitted). The court must weigh "both the evidence that supports 

and the evidence that detracts from the ALJ's" decision. Mayes v. Massanari, 276 F.3d 453, 459 

(9th Cir. 2001 ). If the evidence is susceptible to more than one interpretation but the 

Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may 

not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 

Page 2 - OPINION AND ORDER 

Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 2 of 8
1156 (9th Cir. 2001). 

COMMISSIONER'S DECISION 

The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability 

to engage in any substantial gainful activity by reason of any medically determinable physical or 

mental impairment 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. § 404.1502(a)(4). At 

step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged 

disability onset date. Tr. 74; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found 

plaintiff had the following severe impairments: affective disorder, anxiety disorder, learning 

disorder, and polysubstance abuse disorder. Tr. 74; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step 

three, the ALJ determined plaintiffs impairments, whether considered singly or in combination, did 

not meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges 

are so severe as to preclude substantial gainful activity." Tr. 75; 20 C.F.R. §§ 404.1520(a)(4)(iii), 

(d). 

The ALJ found plaintiff retained the residual functional capacity ("RFC") 

to perform a full range of work at all exertional levels but with the following 

nonexertional limitations: The claimant can perform simple, routine tasks in twohour increments. He can occasionally work with the general public, and can work 

in the same room with an unlimited number of coworkers but should not work in 

coordination with them. He can have superficial interaction with coworkers. The 

claimant can make simple judgments for simple, routine tasks, and should not work 

at a job where the General Educational Development for language exceeds level two 

(2). The claimant is likely to be absent from work three times a month or more due 

to substance abuse issues. 

Tr. 77-78; 20 C.F.R. § 404.1520(e). At step four, the ALJ concluded the level of absenteeism 

reflected in the RFC precluded plaintiff from performing any of his "past relevant work." Tr. 78, 

20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step five, the ALJ found plaintiff could not perform any jobs 

Page 3 - OPINION AND ORDER 

Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 3 of 8
existing in significant numbers in the national economy because his nonexertional limitations "so 

narrow[ed] the range of work [he] could perform that a finding of 'disabled' is appropriate[.]" Tr. 

79, 20 C.F.R. §§ 404.1520(a)(4)(v), (g). Specifically, theALJ noted plaintiffs "inability to maintain 

work activity on a regular and continuous basis of a five-day, 40-hour workweek[.]" Tr. 79. 

The ALJ then repeated steps two through five of the sequential process, this time eliminating 

plaintiffs substance abuse from consideration. See SSR 13-2P, 2013 WL 621536, *6 (setting out 

the process for determining whether substance abuse is "material" to a disability determination and 

directing a finding of not disabled when substance abuse is material). At step two, the ALJ found 

that even if plaintiff stopped substance use, his remaining mental heath impairments still would be 

severe. Tr. 79. At step three, the ALJ determined those impairments would not meet or medically 

equal a listed impairment. Tr. 80. In this second sequential evaluation, the ALJ made only one 

change to the RFC: she removed the final sentence predicting three absences per month. Tr. 81-82. 

At step four, the ALJ concluded plaintiff could perform past relevant work as a cannery laborer, 

construction worker,janitor, warehouse worker, auto detailer, or painter helper. Tr. 90. At step five, 

the ALJ found, in the alternative, that plaintiff could perform other jobs existing in significant 

numbers in the national economy, such as motel cleaner and price marker. Tr. 91. Accordingly, the 

ALJ found plaintiff not disabled and denied his application for benefits. Tr. 92. 

DISCUSSION 

Plaintiff argues the ALJ erred by ( 1) improperly reformulating the RFC during the second 

sequential evaluation; (2) omitting several necessary limitations from the RFC; and (3) denying 

plaintiffs request to reopen a prior disability application. 1 I address each contention in tum. 

I. Formulation of RFC During Second Sequential Evaluation 

1 Plaintiff also challenges the ALJ's step-four analysis as internally inconsistent and 

inadequately supported by factual findings. It is not necessary to address the merits of these 

arguments because the ALJ' s alternatively found at step five that plaintiff could perform other 

work available in the national economy. That step five finding, which plaintiff does not 

challenge, renders harmless any error at step four. Tommasetti v. Astrue, 533 F.3d 1035, 1042 

(9th Cir. 2008). 

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Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 4 of 8
Plaintiffs primary argument on appeal is that the ALJ erred in concluding his substance 

abuse disorder was material to the disability decision. A plaintiff is not entitled to benefits "if 

alcoholism or drug addiction would ... be a contributing factor material to the Commissioner's 

determination thatthe individual is disabled." 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). "The key 

factor [the Commissioner] will examine in determining" materiality of drug addiction or alcoholism 

"is whether [the Commissioner] would still find a claimant disabled ifhe or she stopped using drugs 

or alcohol." SSR 13-2P, 2013 WL 621536, at *4. The plaintiff bears the burden of demonstrating 

that substance abuse is not a material contributing factor to the disability. Parra v. Astrue, 481 F .3d 

742, 744-45 (9th Cir. 2007). 

In the first sequential evaluation, the ALJ included in the RFC a prediction that plaintiff 

would be absent from work at least three times per month ("attendance limitation"). The ALJ 

deleted the attendance limitation from the RFC in the second sequential evaluation. This deletion 

drives the materiality analysis, because the ALJ concluded that three absences per month would 

preclude plaintiff from working, but that plaintiff could perform both past work and other work in 

the national economy without the attendance limitation. The question before the Court is whether 

the attendance limitation is fairly attributable only to plaintiffs substance abuse. 

The ALJ' s decision to include the attendance limitation in the first RFC rested primarily on 

her interpretation of a series of emails, letters, and case notes written by staff at the Oregon 

Department of Human Services Office of Vocational Rehabiliation. Those documents note plaintiff 

was "not attending ... classes for his GED completion" despite agreeing to do so and document 

problems with "[d]iscernment in choosing friends and activities." Tr. 843. They also mention a 

meeting with plaintiffs former significant other, Leslie, in which Leslie stated "she's had it with 

[plaintiffs] addictions." Tr. 845. The ALJ reasonably interpreted these documents, in combination 

with other evidence of plaintiffs substance abuse, to suggest plaintiff would be likely to have 

attendance problems as long as he continued to use substances. The ALJ did not cite any other 

evidence, and plaintiff has not pointed to any other evidence, suggesting plaintiff would be likely to 

Page 5 - OPINION AND ORDER 

Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 5 of 8
have attendance problems as a result of any of his other mental disorders. Indeed, although medical 

and lay sources repeatedly mention plaintiffs difficulty staying on-task, paying attention, and 

following through, the only clear reference to absenteeism appears in the Office of Vocational 

Rehabilitation documents. In sum, the only reason the ALJ included an attendance limitation in the 

first RFC was because she rationally concluded plaintiffs substance abuse would cause him to be 

absent from work. 

Plaintiff contends the ALJ was required to point to reliable medical evidence that his 

attendance problems would improve in the absence of substance abuse before omitting that limitation 

from the RFC during the second sequential evaluation. But that is not what the Social Security 

regulations require. SSR 13-2P states that an ALJ may not predict that a co-occurring mental 

impairment would improve ifthe substance abuse ceased. 2013 WL 621536 at *9. Here, however, 

the ALJ did not predict any of plaintiffs other mental impairments would improve in the absence 

of substance abuse; she simply eliminated a limitation caused only by substance abuse from the RFC. 

Plaintiff also argues the ALJ' s finding he would have "moderate" difficulties with 

concentration, persistence, or pace even without the substance abuse disorder requires the inclusion 

of an attendance-related limitation in the second RFC. Plaintiff contends "no absences" cannot be 

fairly categorized as "moderate" difficulties. However, attendance problems are merely one of many 

types of difficulties with concentration, persistence, or pace. As noted, the record contains numerous 

references to plaintiffs difficulty staying on-task, paying attention, and following through. Medical 

and other sources clearly connect these difficulties to plaintiffs anxiety, affective disorder, and 

learning disabilities. 

The Ninth Circuit has squarely held that a limitation to simple tasks may adequately account 

for problems with concentration, persistence, or pace. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 

1174 (9th Cir. 2008). Plaintiffs RFC included not only a limitation to simple tasks, but a 

requirement those tasks be repetitive and performed only in two-hour increments. This adequately 

accounts for the moderate problems in this area found by the ALJ and reflected in the record. 

Page 6 - OPINION AND ORDER 

Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 6 of 8
Plaintiff has not connected the attendance limitation to any of his mental disorders other than 

substance abuse. Accordingly, he has failed to carry his burden to show his substance abuse disorder 

was not material to the ultimate disability determination. 

IL Omission of Limitations from RFC 

Plaintiff next challenges the ALJ' s failure to include in the RFC limitations consistent with 

those recommended in a letter detailing approved classroom accommodations for plaintiff while he 

was taking classes at Chemeketa Community College. The letter, written by an Accommodation 

Specialist in the college's Disability Services office, directs instructors to give plaintiff double the 

usual amount of time to complete tests, with a ten-minute break after each forty-minute increment 

of testing. Tr. 300-01. The ALJ found the classroom limitations "d[id] not describe workplace 

limitations." Tr. 89. This reflects a rational conclusion plaintiff would require more frequent breaks 

when testing - a high-intensity mental activity requiring significant concentration - than when 

performing the simple, routine work permitted by the RFC. 

Plaintiff also asserts the ALJ erred in her treatment of a third-party function report completed 

by plaintiffs former foster father. The ALJ found the statement "somewhat persuasive." Tr. 87. 

Plaintiff argues the RFC does not account for certain limitations included in the statement: that 

plaintiff needs verbal reminders to take medication, that his attention tends to wander, and that he 

is paranoid and has difficulty in large groups and social situations. Tr. 378, 380-81, 383. The ALJ 

adequately addressed each of these problems by limiting plaintiff to simple, routine tasks in two-hour 

increments and restricting his contact with coworkers and the public. 

Finally, plaintiff avers the ALJ erred by limiting his contact with the public on the basis of 

quantity but not quality. The RFC allows occasional contact with the public but does not specify 

whether that contact can be more than superficial. Plaintiff asserts this limitation does not 

adequately address his moderate difficulties with social functioning, including his agoraphobia and 

paranoia. Any error in the omission of a qualitative limitation here was harmless. The ALJ relied 

on the testimony of a VE in making his findings at step four and step five. The ALJ asked the VE 

Page 7 - OPINION AND ORDER 

I 

Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 7 of 8
about jobs requiring no more than superficial and occasional work with the public. Tr. 56. 

Accordingly, any deficiency in the written RFC did not harmfully affect the ultimate disability 

determination. 

III. Denial of Petition to Reopen Prior Application 

Plaintiff filed a prior application for SSI and DIB September 16, 2010. Tr. 262, 269. Those 

applications were denied November 16, 2010. Tr. 108, 118. In the instant application for benefits, 

filed within a year of the first denial, plaintiff sought to reopen the prior disability denial. Tr. 92. 

He contends the ALJ erred in denying that request. 

A decision not to reopen a prior, final benefits decision is not subject to judicial review 

unless the denial of the petition to reopen is challenged on constitutional grounds. Udd v. 

Massanari, 245 F.3d 1096, 1098-99 (9th Cir. 2001). Plaintiff contends that the ALJ's denial of the 

petition to reopen violated 20 C.F.R. § 404.988(a), which permits a disability determination to be 

reopened "for any reason" within twelve months of the decision. Standing alone, an agency's failure 

to follow its own regulations is not a violation of due process. Brown v. Holder, 763 F.3d 1141, 

1148 (9th Cir. 2014). To state a constitutional claim, plaintiff would have to explain how the 

"underlying government conduct" violates the Due Process Clause. Id. Here, however, plaintiff did 

not mention due process or any other constitutional right in his brief. Accordingly, this Court lacks 

jurisdiction to review the denial of the petition to reopen. 

CONCLUSION 

The Commissioner's decision is AFFIRMED and this case is dismissed. 

IT IS SO ORDERED.~ fy\.. . 0-1 tiW 

Dated this .h_ day of 016. 

Ann Aiken 

United States District Judge 

Page 8 - OPINION AND ORDER 

Case 6:15-cv-00796-AA Document 22 Filed 09/06/16 Page 8 of 8