United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY BENEFITS
KAREN L. STROMBOM, Magistrate Judge.
Plaintiff, appearing pro se in this case, seeks judicial review of defendant's denial of her applications for disabled widow's 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 affirmed.
FACTUAL AND PROCEDURAL HISTORY
On December 9, 2010, plaintiff filed applications for disabled widow's benefits and another one for SSI benefits, alleging in both applications that she became disabled beginning December 10, 2004. See ECF #19, Administrative Record ("AR") 13. Both applications were denied upon initial administrative review on December 17, 2010, and on reconsideration on September 14, 2011. See AR 13. A hearing was held before an administrative law judge ("ALJ") on August 29, 2012, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 34-72. Subsequent to the hearing, plaintiff amended her alleged onset date of disability to October 5, 2010. See AR 13.
In a decision dated October 9, 2012, the ALJ determined plaintiff to be not disabled. See AR 13-27. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on July 29, 2013, making the ALJ's decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1; 20 C.F.R. § 404.981, § 416.1481. On September 30, 2013, plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. See ECF #3. The administrative record was filed with the Court on January 7, 2014. See ECF #19. 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 an award of benefits, because the ALJ erred: (1) in failing to find plaintiff had a severe impairment consisting of cervical sprain with facet dysfunction; (2) in assessing plaintiff's residual functional capacity; (3) in finding plaintiff to be capable of returning to her past relevant work; and (4) in finding plaintiff to be capable of performing other jobs existing in significant numbers in the national economy. 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; 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 her "impairments or their symptoms affect her 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 degenerative disc disease of the lumbar spine and right knee tendinitis/osteoarthritis to be severe impairments. See AR 17. Plaintiff argues the ALJ erred in not also finding she had a severe impairment consisting of a cervical sprain with facet dysfunction based on a diagnosis of the same made by Vatche Cabayan, M.D., in an evaluation report dated August 3, 2005. See ECF #22, pp. 6, 25. That evaluation report, however, is not part of the administrative record that is before the Court. Accordingly, the ALJ cannot be faulted for failing to consider it. Further, the Court agrees with defendant that even if that report should have been made part of the record, it would not have changed the ALJ's ultimate determination of non-disability in this case.
This is because, as defendant points out, Dr. Cabayan offered this diagnosis more than five years prior to plaintiff's amended alleged onset date of disability, and therefore is of little, if any, relevance to the issue of impairment severity in this case. See Carmickle v. Commissioner, Social Sec. Admin. , 533 F.3d 1155, 1165 (9th Cir. 2008) ("Medical opinions that predate the alleged onset of disability are of limited relevance."). In addition, none of the medical evidence in the record pertaining to the relevant time period subsequent to the amended alleged onset date of disability contains a diagnosis of cervical sprain with facet dysfunction, let alone indicates the presence of any work-related functional limitations related thereto. Even if the ALJ did err in failing to find this to be a severe impairment at step two, furthermore, such error was harmless given that as discussed in ...