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Garcia v. Colvin

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

April 17, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


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. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule MJR 4(a)(4) and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261 (1976). After reviewing the parties' briefs and the remaining record, the undersigned submits the following Report and Recommendation for the Court's review, recommending that for the reasons set forth below, defendant's decision to deny benefits should be reversed and this matter should be remanded for further administrative proceedings.


On April 20, 2010, plaintiff filed an application for supplemental security income. On April, 21, 2010, plaintiff filed an application for disability insurance benefits. In both applications, plaintiff alleged disability beginning February 5, 2009, due to abdominal nerve entrapment and chronic pain. See Administrative Record ("AR") 167-74, 189-97. Plaintiff's applications were denied upon initial administrative review and on reconsideration. See AR 91-94, 99-117. A hearing was held before an administrative law judge ("ALJ") on March 30, 2012, at which plaintiff, represented by a non-attorney representative, appeared and testified, as did Todd Gendreau, a vocational expert. See AR 41-85.

On April 20, 2012, the ALJ issued a decision in which plaintiff was determined to be not disabled. See AR 21-40. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on June 6, 2013, making the ALJ's decision defendant's final decision. See AR 1-7; see also 20 C.F.R. § 404.981, § 416.1481. The ALJ's decision therefore became defendant's final decision after sixty days. Id. On June 27, 2013, plaintiff filed a complaint in this Court seeking judicial review of the ALJ's decision. See Dkt. No. 4. The administrative record was filed with the Court on August 27, 2013. See Dkt. No. 14. The parties have completed their briefing, and thus this matter is now ripe for judicial review and a decision by the Court.

Plaintiff argues the ALJ's decision should be reversed and remanded to defendant for a finding of disability or, in the alternative, further administrative proceedings with instructions to re-evaluate the medical and testimonial evidence, because the ALJ erred:

(1) in evaluating plaintiff's severe impairments at step two of the sequential evaluation;

(2) in evaluating the medical opinion evidence;

(3) in rejecting plaintiff's testimony and the lay witness testimony of plaintiff's wife; and

(4) in finding plaintiff to be capable of performing other jobs existing in significant numbers in the national economy.

The undersigned agrees the ALJ erred in finding plaintiff's interstitial cystitis non-severe and in finding plaintiff's testimony and the lay testimony of plaintiff's wife not credible. For the reasons set forth below, the undersigned recommends defendant's decision should be reversed and this matter should be remanded for further administrative proceedings and to reevaluate the medical and testimonial evidence in light of the new evidence submitted to the Appeals Council. Further development of the functional limitations caused by plaintiff's interstitial cystitis is also warranted in this case.


The determination of the Commissioner of Social Security (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. Comm'r Soc. Sec. 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. Sec'y of Health and Human Serv., 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

Plaintiff argues the ALJ erred in finding that plaintiff's interstitial cystitis ("IC") was not a severe impairment. EFC No. 17, p. 3-6. Defendant responds that the ALJ's conclusions at step-two were reasonable and that plaintiff fails to point to any limitations not addressed in the residual functional capacity determination. The Commissioner maintains plaintiff was not harmed by any errors committed at step-two.

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. At step two of the evaluation process, the ALJ must determine if an impairment is "severe." 20 C.F.R. § 404.1520, § 416.920. The step two inquiry is a de minimis screening device used to dispose of groundless claims. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996);

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." Social Security Ruling ("SSR") 85-28, 1985 WL 56856 *3; see also Smolen, 80 F.3d at 1290; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.1988). 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 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. Plaintiff has the burden of proving 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).

Plaintiff also bears the burden to establish that the severe impairment is expected to last for at least twelve continuous months. 20 C.F.R. §§ 404.1505(a), 404.1512, 416.905, 416.912(a); Bowen v. Yuckert, 482 U.S. 137, 146 (1987); see also Tidwell, 161 F.3d at 601 (citing Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995)). Any impairment that is not expected to last continuously for twelve months does not satisfy the requirement. 20 C.F.R. §§ 404.1505(a), 404.1512, 416.905, 416.912(a); Roberts, 66 F.3d at 182.

The ALJ found plaintiff's IC did not meet the durational requirement to be a severe impairment because plaintiff's IC was not diagnosed until February 2012, just a few months prior to the date of the ALJ decision. AR 27. Plaintiff argues the ALJ misinterpreted the 12-month durational requirement by failing to recognize that impairments expected to last for at least 12 continuous months may also satisfy this requirement. Dkt. No. 17, p 5-6. As defendant concedes, evidence submitted to the Appeals Council suggests plaintiff's diagnosis of IC was retroactive. Dkt. No. 20, p. 17. See also Brewes v. Comm'r Soc. Sec. Admin, 682 F.3d 1157, 1163 (9th Cir. 2012) (holding that evidence submitted for the first time to the Appeals Council, which considers that evidence in denying review of the ALJ decision, becomes part of the administrative record subject to district court review). In this new evidence, Plaintiff's treating urologist Stephen Reznicek, M.D., opined plaintiff's IC could reasonably be expected to cause plaintiff to need restroom breaks-five to ten times per day lasting for five to ten minutes each- as far back as February 2009. AR 782. Dr. Reznicek's ...

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