Gale Gunderson v. Michael Astrue

FILED
NOT FOR PUBLICATION MAR 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GALE GUNDERSON, No. 09-35566
Plaintiff - Appellant, D.C. No. 3:08-cv-00183-BR
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 5, 2010
Portland, Oregon
Before: PAEZ, TALLMAN, and M. SMITH, Circuit Judges.
Gale Gunderson appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Gunderson’s application for disability
insurance benefits under Title II of the Social Security Act and for supplemental
security income under Title XVI. Because the parties are familiar with the facts
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and procedural history of this case, we will discuss them only as necessary to
explain our decision. We have jurisdiction under 28 U.S.C. § 1291.
First, Gunderson argues that the administrative law judge (ALJ) failed to
properly adhere to the procedures and apply the “special technique” set forth in 20
C.F.R. § 404.1520a. The “special technique” is used by “adjudicators to assess an
individual’s limitations and restrictions from a mental impairment[] in categories
identified in the ‘paragraph B’ and ‘paragraph C’ criteria of the adult mental
disorders listings.” SSR 96-8p, 1996 WL 374184, at *4; see also 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.00 et seq. The “special technique” requires the
adjudicator to determine whether the claimant has “a medically determinable
mental impairment[],” 20 C.F.R. § 404.1520a(b)(1), and if so, to “rate the degree
of functional limitation resulting from the impairment[]” in four specific functional
areas—activities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation, id. § 404.1520a(b)(2), (c). Further, the
adjudicator must document the application of the special technique in the decision.
The regulations explicitly provide that the adjudicator’s decision “must include a
specific finding as to the degree of limitation in each of the [four] functional
areas.” Id. § 404.1520a(e)(2) (emphasis added).
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In Gutierrez v. Apfel, we held that “where there is a colorable claim of
mental impairment,” failure to adhere to section 404.1520a “requires remand to the
Social Security Administration.”1 199 F.3d 1048, 1051 (9th Cir. 2000). In this
case, Gunderson raised a “colorable claim” of mental impairment. The ALJ herself
found at step two that Gunderson’s anxiety disorder qualified as a severe mental
impairment. The ALJ, however, failed to make a specific finding as to each of the
functional areas, as required under section 404.1520a. As for the first three
functional areas, the ALJ merely stated that Gunderson did not have any “marked”
limitations. But the regulations required the ALJ to identify and record where
Gunderson’s limitations exactly fell along the following five-point scale—none,
mild, moderate, marked, and extreme—for each of those functional areas. 20
C.F.R. § 404.1520a(c)(4).
We acknowledge that in certain circumstances, the failure to explicitly use
the special technique may constitute harmless error. In this case, however, after
having reviewed the record and the totality of the ALJ’s findings, it is not clear
whether the ALJ would have arrived at the same conclusion regarding Gunderson’s
residual functional capacity (RFC) to perform work had the ALJ adhered to the
1
Although Gutierrez dealt with the prior version of section 404.1520a, the
current version, although different, imposes similar obligations on the ALJ.
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requirements of section 404.1520a. Accordingly, we remand this matter so the
ALJ can make specific findings as to the degree of Gunderson’s limitations in each
of the paragraph B functional areas as required by section 404.1520a and to
proceed with the remainder of the five-step sequential analysis in light of those
findings.2
Second, Gunderson argues that the ALJ committed a legal error by finding at
step two that Gunderson’s anxiety disorder and hepatitis were “severe” and then
failing to incorporate the limitations resulting from those impairments into the
ALJ’s final construction of Gunderson’s RFC at steps four and five. Gunderson
fails to appreciate that “the step-two inquiry is a de minimis screening device to
dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996). “The step two and step five determinations require different levels of
severity of limitations such that the satisfaction of the requirements at step two
does not automatically lead to the conclusion that the claimant has satisfied the
requirements at step five.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007).
Nevertheless, the ALJ is not required, as a matter of law, to include all the
2
At oral argument, counsel for Gunderson conceded that even if the ALJ
fully complies with section 404.1520a, Gunderson cannot prevail at step three.
Therefore, upon remand, the ALJ is required to perform the special technique
solely for the purpose of the ALJ’s analysis at steps four and five.
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limitations from the impairments the ALJ deems to be severe at step two in the
ALJ’s final RFC analysis. As a result, in this case, the ALJ did not commit a legal
error by omitting functional limitations related to Gunderson’s anxiety and
hepatitis from the RFC simply because she determined they were severe for
purposes of step two. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1228-29 (9th Cir. 2009) (rejecting the petitioner’s argument that the ALJ failed to
account for her mental disorder, which the ALJ had found to be severe at step two,
in the final construction of her RFC, and noting the lack of “authority to support
the proposition that a severe mental impairment must correspond to limitations on
a claimant’s ability to perform basic work activities”). Upon remand, after
complying with section 404.1520a, the ALJ may find it necessary to revise her
prior RFC evaluation to reflect any limitations from Gunderson’s anxiety disorder.
But that is for the ALJ to decide on remand.
Third, Gunderson argues that the ALJ erred by failing to properly consider
the medical opinions of Dr. William Trueblood. However, Dr. Trueblood
conducted a psychological evaluation of Gunderson in December 1998, nearly two
years before the alleged onset date of Gunderson’s disabilities. Because “[m]edical
opinions that predate the alleged onset of disability are of limited relevance,”
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008), the
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ALJ did not err in according less weight to the opinions of Dr. Trueblood. See
Burkhart v. Bowen, 856 F.2d 1335, 1340 n.1 (9th Cir. 1988) (concluding that the
ALJ correctly rejected medical evidence because it predated the relevant time
period).
Finally, Gunderson argues that the ALJ erred by not considering his
individual reactions to the demands of work-related stress in accordance with SSR
85-15. This court has held 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). Because
Gunderson asserts that his impairments include the exertional imairment of chronic
back pain, SSR 85-15 does not apply. See Sandgathe v. Chater, 108 F.3d 978,
980-81 (9th Cir. 1997) (holding SSR 85-15 was inapplicable because the claimant
had exertional and nonexertional impairments).
Each side to bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, VACATED, AND
REMANDED WITH INSTRUCTIONS.
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