United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY BENEFITS
KAREN L. STROMBOM, Magistrate Judge.
Plaintiff has brought this matter for judicial review of defendant's denial of his application for disability insurance benefits. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. After reviewing the parties' briefs and the remaining record, the Court hereby finds that for the reasons set forth below defendant's decision to deny benefits should be affirmed.
FACTUAL AND PROCEDURAL HISTORY
On August 19, 2009, plaintiff filed an application for disability insurance benefits, alleging disability as of August 1, 2008. See ECF #8, Administrative Record ("AR") 27. That application was denied upon initial administrative review on April 22, 2010, and on reconsideration on September 13, 2010. See id. A hearing was held before an administrative law judge ("ALJ") on November 7, 2011, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 38-73.
In a decision dated December 30, 2011, the ALJ determined plaintiff to be not disabled. See AR 27-33. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on February 21, 2013, making the ALJ's decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1; see also 20 C.F.R. § 404.981. On March 19, 2013, plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. See ECF #1. The administrative record was filed with the Court on May 22, 2013. See ECF #8. The parties have completed their briefing, and thus this matter is now ripe for the Court's review.
Plaintiff argues the Commissioner's final decision should be reversed and remanded for an award of benefits, or in the alternative for further administrative proceedings, because the ALJ erred: (1) in failing to find his cervical and lumbar spine conditions were severe impairments; (2) in failing to properly consider whether his impairments met or medically equaled the criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.02 (major dysfunction of a joint(s)) and § 1.04 (disorders of the spine); and (3) in assessing his residual functional capacity. For the reasons set forth below, however, the Court disagrees that the ALJ erred in determining plaintiff to be not disabled, and therefore finds defendant's decision to deny benefits should be affirmed.
The determination of the Commissioner that a claimant is not disabled must be upheld by the Court, if the "proper legal standards" have been applied by the Commissioner, and the "substantial evidence in the record as a whole supports" that determination. Hoffman v. Heckler , 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Commissioner of Social Security Admin. , 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan , 772 F.Supp. 522, 525 (E.D. Wash. 1991) ("A decision supported by substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.") (citing Brawner v. Secretary of Health and Human Services , 839 F.2d 432, 433 (9th Cir. 1987)).
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) (citation omitted); see also Batson , 359 F.3d at 1193 ("[T]he Commissioner's findings are upheld if supported by inferences reasonably drawn from the record."). "The substantial evidence test requires that the reviewing court determine" whether the Commissioner's decision is "supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required." Sorenson v. Weinberger , 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). "If the evidence admits of more than one rational interpretation, " the Commissioner's decision must be upheld. Allen v. Heckler , 749 F.2d 577, 579 (9th Cir. 1984) ("Where there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made.") (quoting Rhinehart v. Finch , 438 F.2d 920, 921 (9th Cir. 1971)).
I. The ALJ's Step Two Determination
Defendant employs a five-step "sequential evaluation process" to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520. If the claimant is found disabled or not disabled at any particular step thereof, the disability determination is made at that step, and the sequential evaluation process ends. See id. At step two of the evaluation process, the ALJ must determine if an impairment is "severe." 20 C.F.R. § 404.1520. An impairment is "not severe" if it does not "significantly limit" a claimant's mental or physical abilities to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(iii), (c); see also Social Security Ruling ("SSR") 96-3p, 1996 WL 374181 *1. Basic work activities are those "abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b); SSR 85-28, 1985 WL 56856 *3.
An impairment is not severe only if the evidence establishes a slight abnormality that has "no more than a minimal effect on an individual[']s ability to work." SSR 85-28, 1985 WL 56856 *3; see also Smolen v. Chater , 80 F.3d 1273, 1290 (9th Cir. 1996); Yuckert v. Bowen , 841 F.2d 303, 306 (9th Cir.1988). Plaintiff has the burden of proving that his "impairments or their symptoms affect [his] ability to perform basic work activities." Edlund v. Massanari , 253 F.3d 1152, 1159-60 (9th Cir. 2001); Tidwell v. Apfel , 161 F.3d 599, 601 (9th Cir. 1998). The step two inquiry described above, however, is a de minimis screening device used to dispose of groundless claims. See Smolen , 80 F.3d at 1290.
The ALJ in this case found plaintiff's osteoarthritis of the right knee and hip to be a severe impairment, but not his history of recurrent osteomyelitis. See AR 29. Plaintiff argues the ALJ erred by failing to address the issue of whether his cervical and lumbar spine conditions also constitute severe impairments. At least in regard to plaintiff's cervical spine condition, the Court agrees. The record contains the opinion of non-examining, consultative physician, Robert Hoskins, M.D., whose functional assessment indicated plaintiff was limited to a modified range of light work, based on a primary diagnosis of degenerative changes in his bilateral hips and a secondary diagnosis of cervical spondylosis. See AR 304-11, 315. The ALJ, furthermore, stated she was giving significant weight to that assessment in finding plaintiff had significant physical functional limitations. See AR 30, 32.
Given that it appears that more than de minimis physical functional limitations assessed by Dr. Hoskins and adopted by the ALJ are based at least in part on plaintiff's cervical spine condition, the Court finds the ALJ erred in failing to find that condition severe at step two. That being said, the Court also finds this error to be harmless, because the ALJ went on to consider the functional assessment of Dr. Hoskins during the remaining steps of the sequential disability evaluation process (see AR 32), and plaintiff has not argued or shown the ALJ's stated reasons ...