IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HASSAN CROSS, 3:16-CV-00018-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

GEORGE J. WALL

1336 E. Burnside

Suite 130

Portland, OR 97214

(503) 236-0068 

Attorney for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1 - OPINION AND ORDER

Case 3:16-cv-00018-BR Document 19 Filed 11/03/16 Page 1 of 13
DAVID MORADO

Regional Chief Counsel

ERIN F. HIGHLAND 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2495 

Attorneys for Defendant

BROWN, Judge.

Plaintiff Hassan Cross seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's application

for Supplemental Security Income (SSI) under Title XVI of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for SSI on July 5, 2011, and

alleged a disability onset date of July 2, 2004. Tr. 187.1 His

application was denied initially and on reconsideration. An

Administrative Law Judge (ALJ) held a hearing on March 31, 2014. 

Tr. 36. At the hearing Plaintiff and a vocational expert (VE)

1

 Citations to the official transcript of record filed by

the Commissioner on May 12, 2015, are referred to as "Tr."

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testified. Plaintiff was represented by an attorney. On 

April 24, 2014, the ALJ issued an opinion in which he found

Plaintiff is not disabled and, therefore, is not entitled to

benefits. Tr. 16. On November 4, 2015, that decision became the

final decision of the Commissioner when the Appeals Council

denied Plaintiff's request for review. Tr. 1-6. See Sims v.

Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND

Plaintiff was born on October 28, 1979, and was 34 years old

at the time of the hearing. Tr. 189. Plaintiff graduated from

high school. Tr. 43. Plaintiff does not have any past relevant

work experience. Tr. 29. 

Plaintiff alleges disability due to cerebral palsy, a

personality disorder, and post-traumatic stress disorder (PTSD). 

Tr. 229. 

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 22-26.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

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Cir. 2012). To meet this burden a claimant must demonstrate his

inability "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). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). It is more than a mere scintilla [of evidence]

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

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2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 416.920. Each step is potentially

dispositive. 

 At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm’r of

Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe

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impairment or combination of impairments. 20 C.F.R. 

§ 416.920(c). See also Keyser, 648 F.3d at 724. 

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of a

number of listed impairments that the Commissioner acknowledges

are so severe they preclude substantial gainful activity. 20

C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724.

The criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s Residual Functional Capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

§ 416.945(a). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

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work he has done in the past. 20 C.F.R. § 416.920(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also

Keyser, 648 F.3d at 724. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity since his July 5, 2011,

application date. Tr. 18.

At Step Two the ALJ found Plaintiff has the severe

impairments of PTSD, vision loss, bipolar disorder, and substance

abuse in remission. Tr. 18. The ALJ found Plaintiff’s

conditions of degenerative disc disease, HIV infection, and

cerebral palsy are not medically determinable impairments. 

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Tr. 19. 

At Step Three the ALJ concluded Plaintiff's impairments do

not meet or equal the criteria for any Listed Impairment from 20

C.F.R. part 404, subpart P, appendix 1. The ALJ found Plaintiff

has the RFC to perform a full range of work at all exertional

levels. The ALJ also found Plaintiff is limited to “simple,

routine tasks” and “work that does not require fine visual

acuity.” Tr. 20.

At Step Four the ALJ found Plaintiff does not have any past

relevant work experience. Tr. 24. 

At Step Five the ALJ found Plaintiff could perform jobs that

exist in significant numbers in the national economy. Tr. 29. 

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) did not find

Plaintiff’s migraine headaches to be a severe impairment at Step

Two, (2) did not identify at Step Firve a substantial number of

jobs in the national economy that Plaintiff could perform, and

(3) failed to consider the effect of stress on Plaintiff’s

ability to work.

I. The ALJ did not err at Step Two.

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

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impairment or combination of impairments. Stout, 454 F.3d at

1052. See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). A

severe impairment "significantly limits" a claimant's "physical

or mental ability to do basic work activities." 20 C.F.R. 

§ 404.1521(a). See also Ukolov, 420 F.3d at 1003. The ability

to do basic work activities is defined as "the abilities and

aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(a),

(b). Such abilities and aptitudes include walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying, handling,

seeing, hearing, speaking; understanding, carrying out, and

remembering simple instructions; using judgment; responding

appropriately to supervision, co-workers, and usual work

situations; and dealing with changes in a routine work setting. 

Id.

As noted, Plaintiff asserts the ALJ erred at Step Two when

he did not find Plaintiff’s migraines to be a severe impairment. 

Plaintiff, however, did not allege migraines were a limiting

condition in his application for benefits or in his disability

reports nor did he testify at the hearing that he suffered from

disabling migraines. The record reflects Plaintiff reported to

the emergency room for headaches four times between April 2010

and July 2013, at which time Plaintiff was treated and

discharged. Plaintiff did not seek follow-up treatment for

migraines. 

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Tr. 332-33, 337-38, 551-51, 667-68. Moreover, the record does

not reflect any doctor diagnosed Plaintiff with migraine

headaches or assessed Plaintiff with any functional limitations

from migraine headaches. Plaintiff, therefore, has not

established the ALJ erred at Step Two when he did not find

Plaintiff’s migraine headaches to be a severe impairment.

In addition, the Ninth Circuit has held when the ALJ has

resolved Step Two in a claimant's favor, any error in designating

specific impairments as severe does not prejudice a claimant at

Step Two. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)

(any error in omitting an impairment from the severe impairments

identified at Step Two was harmless when Step Two was resolved in

claimant's favor). Because the ALJ resolved Step Two in

Plaintiff's favor, the Court concludes any error by the ALJ in

failing to find Plaintiff’s migraine headaches to be a severe

impairment is harmless. 

II. The ALJ identified a significant number of jobs in the

national economy that Plaintiff could perform.

Plaintiff contends the ALJ erred at Step Five when he found

Plaintiff could perform jobs that exist in significant numbers in

the national economy. The ALJ found Plaintiff could perform

three jobs: janitor, auto detailer, and hand packager. 

Plaintiff asserts and Defendant does not dispute that the

job of janitor is inconsistent with the ALJ’s evaluation of

Plaintiff’s RFC. Plaintiff also asserts the jobs of auto

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detailer and hand packager do not exist in sufficient numbers in

Oregon to satisfy the Commissioner’s burden at Step Five. 

Specifically, the jobs of auto detailer and hand packager have a

combined total of 680 jobs in Oregon. The Social Security Act,

however, makes clear that at Step Five the requirement of work

that exists in the national economy can be satisfied by “work

which exists in significant numbers either in the region where

[an] individual lives or in several regions of the country.” 42

U.S.C. § 1382(a)(3)(B) (emphasis added). As the Ninth Circuit

explained in Gutierrez v. Commissioner of Social Security:

Section 1382c(a)(3)(B) defines “work in the

national economy” in the disjunctive. . . . “The

statute in question indicates that the

‘significant number of jobs’ can be either

regional jobs (the region where a claimant

resides) or in several regions of the country

(national jobs) . . . . If we find either of the

two numbers significant, then we must uphold the

ALJ's decision.”

740 F.3d 519, 523-24 (9th Cir. 2014)(quoting Beltran v. Astrue,

700 F.3d 386, 389–90 (9th Cir. 2012)). 

The record reflects the jobs of auto detailer and hand

packager have a combined total of 91,000 jobs nationally. In

Gutierrez the Ninth Circuit found the ALJ did not err when he

concluded 25,000 national jobs constituted work that exists in

significant numbers in several regions of the country. 740 F.3d

at 528. In other cases the Ninth Circuit has concluded numbers

fewer than 91,000 satisfy the standard. See, e.g., Moncada v.

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Chater, 60 F.3d 521, 524 (9th Cir. 1995)(64,000 jobs nationwide

is significant).

On this record the Court concludes the ALJ did not err at

Step Five when he found Plaintiff could perform jobs that exist

in significant numbers in the national economy. 

III. The ALJ did not err when he did not consider the effect of

stress on Plaintiff’s ability to maintain employment.

Plaintiff contends the ALJ erred when he failed to consider

the effect of stress on Plaintiff’s ability to maintain

employment. Plaintiff, however, fails to point to evidence in

the record showing how stress specifically limits his ability to

maintain employment. Plaintiff relies on the reports of his

mother, his sister, and himself that he sometimes “goes on rants”

in response to stress and that he does not respond well to

stress. Tr. 240, 271, 565. The ALJ, however, provided

sufficient reasons supported by substantial evidence in the

record for finding that Plaintiff was not entirely credible and

for giving limited weight to the statements of his mother and

sister. Plaintiff does not challenge those findings.

In addition, to the extent that Plaintiff asserts the ALJ

should have evaluated his mental impairments under the standard

set out in SSR 85-15, the Ninth Circuit has made clear that “SSR

85-15 provides guidance only for cases in which the claimant

asserts ‘solely nonexertional impairments.’” Roberts v. Shalala,

66 F.3d 179, 183 (9th Cir. 1995)(quoting SSR 85-15)). Here

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Plaintiff asserted both exertional and nonexertional impairments,

and, therefore, SSR 85-15 does not apply. See, e.g., Gunderson

v. Astrue, 371 F. App’x 807, 809-10 (9th Cir. 2010)(SSR 85-15 did

not apply when the claimant alleged exertional and nonexertional

impairments); Sandgathe v. Chater, 108 F.3d 978, 980-81 (9th Cir.

1997)(same).

On this record the Court concludes the ALJ did not err when

he did not consider the effect of stress on Plaintiff’s ability

to maintain employment.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 3rd day of November, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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