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Geiger v. Colvin

United States District Court, W.D. Washington, Tacoma

March 31, 2014

DAVID ALLEN GEIGER, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER REVERSING AND REMANDING 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 applications for disability insurance and supplemental security income ("SSI") 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 reversed and that this matter should be remanded for further administrative proceedings.

FACTUAL AND PROCEDURAL HISTORY

On August 20, 2009, plaintiff filed an application for disability insurance benefits and another one for SSI benefits, alleging he became disabled beginning June 10, 2006, due to headaches, depression and a back injury. See ECF #7, Administrative Record ("AR") 11, 149. Both applications were denied upon initial administrative review on October 28, 2009, and on reconsideration on March 3, 2010. See AR 11. A hearing was held before an administrative law judge ("ALJ") on July 7, 2011, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 27-51.

In a decision dated August 18, 2011, the ALJ determined plaintiff to be not disabled. See AR 11-22. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on February 21, 2013, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1; 20 C.F.R. § 404.981, § 416.1481. On April 10, 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 June 28, 2013. See ECF #7. The parties have completed their briefing, and thus this matter is now ripe for the Court's review.

Plaintiff argues defendant's decision to deny benefits should be reversed and remanded for further administrative proceedings, because the ALJ erred: (1) in finding plaintiff did not have a severe mental impairment and in failing to give significant weight to the opinions of April Leaveck, Psy.D., ; (2) in discounting plaintiff's credibility; and (3) in giving limited weight to the disability rating decision issued by the United States Department of Veterans Affairs ("VA"). For the reasons set forth below, the Court agrees the ALJ erred in finding plaintiff did not have a severe mental impairment, in giving minimal weight to the opinion of Dr. Leaveck and in giving limited weight to the VA rating decision - and thus in determining plaintiff to be not disabled - and therefore finds that defendant's decision to deny benefits should be reversed, and that this matter should be remanded for further administrative proceedings.

DISCUSSION

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)).[1]

I. The ALJ's Step Two Determination and Evaluation of Dr. Leaveck's Opinions

Defendant employs a five-step "sequential evaluation process" to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. 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, § 416.920. 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), § 416.920(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), § 416.921(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 migraine headaches to be a severe impairment. See AR 13. The ALJ further found in relevant part at step two:

Depressive disorder is one of the bases for a 90% disability rating by the Veterans Administration (VA) on August 3, 2007 (Exhibit 14E at 7). However, the state-agency consultant, Ray Conroe, Ph.D., summarized from the longitudinal record that the claimant's mental impairments are "mild" in all 4 major functional areas evaluated, and the claimant "was able to attend fulltime psychology grad school and maintain a variety of home and community services" including going out daily, having occasional lunch with friends, calling others twice a week, and playing computer games with friends (Exhibit 4F at 13). Dr. Conroe's assessment was affirmed by Owen Nelson, Ph.D., ...

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