United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed ( see ECF Nos. 13, 14, 15).
After considering and reviewing the record, the Court finds that the ALJ did not commit harmful error when evaluating the lay evidence or when making the step two determination regarding severe impairments. In addition, the ALJ provided a germane reason for failing to credit fully the opinion of lay source ARNP Smalley, noting that her opinion was inconsistent with the mild objective medical evidence. Also, the ALJ did not commit harmful error when assessing plaintiff's credibility. Finally, the ALJ's reliance on the VE's testimony at step five was proper.
Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
Plaintiff, CHRISTOPHER LEE NEELEY, was born in 1967 and was 41 years old on the alleged date of disability onset of December 23, 2008 ( see Tr. 228, 236). Plaintiff did not complete high school, or obtain a GED (Tr. 40). He has taken some classes through the union pertaining to painting (Tr. 41). Plaintiff was a painter until his back "was too far gone" and he "couldn't take the recall" back to work ( id. ). Plaintiff has at least the severe impairments of obesity and degenerative disc disease (20 CFR 404.1520(c) and 416.920(c)) (Tr. 12).
At the time of the hearing, plaintiff was living in a house with a roommate and two dogs (Tr. 39).
After plaintiff's application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and following reconsideration, plaintiff's requested hearing was held before Administrative Law Judge Kimberly Boyce ("the ALJ") on May 14, 2012 ( see Tr. 30-88; see also Tr. 93-ORDER 96, 100-04, 105-10, 228-35, 236-38). On June 15, 2012, the ALJ issued a written decision in which she concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 7-28).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Did the ALJ fail to include all of plaintiff's severe impairments at step 2 of the sequential evaluation process leading to an incorrect RFC; (2) Did the ALJ use an improper legal standard in rejecting the functional limitations assessed by Cheryl Smalley, ARNP; (3) Did the ALJ fail to properly articulate legally correct reasons for rejecting the statements from the two lay witnesses; (4) Is the credibility assessment of the plaintiff by the ALJ flawed because the reasons given are not clear and convincing; (5) Did the ALJ's RFC assessment fail to take into consideration all of plaintiff's impairments, both exertional and nonexertional; (6) Did the ALJ fail to incorporate all of plaintiff's functional limitations in the hypothetical question posed to the VE; and (7) Did the VE use an incorrect legal standard in testimony about job numbers ( see ECF No. 13, pp. 1-2).
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
(1) Did the ALJ fail to include all of plaintiff's severe impairments at step 2 of the sequential evaluation process leading to an incorrect RFC?
Plaintiff contends that the ALJ erred by failing to find that plaintiff's chronic pain syndrome and depression were severe impairments. However, defendant's arguments on these contentions are persuasive ( see Response, ECF No. 14, pp. 2-4 ( citing Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005)).
Regarding plaintiff's pain, an ALJ is not "required to believe every allegation of disabling pain;" and, the ALJ's rejections of plaintiff's allegations and symptoms will be discussed subsequently by the Court in the discussion on plaintiff's credibility, see infra, section 4. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ( citing 42 U.S.C. § 423(d)(5)(A) (other citations and footnote omitted)). Plaintiff has not directed the Court to any diagnosis by an acceptable medical source that plaintiff suffered from a distinct impairment of a pain disorder.
Regarding plaintiff's alleged depression, plaintiff admits that no mental health condition was diagnosed by Dr. Catherine Howe, M.D., after an examination in 2010, and admits that he was not diagnosed with depression by an acceptable medical source until April 26, 2012 ( see Opening Brief, ECF No. 13, p. 7 ( citing Tr. 740-42)). Reports of symptoms alone generally are insufficient to establish ...