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Malang v. Colvin

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

September 8, 2014

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


KAREN L. STROMBOM, Magistrate Judge.

Plaintiff has brought this matter for judicial review of the Defendant Commissioner's denial of her application for disability insurance benefits ("DIB"). 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, the Commissioner's decision to deny benefits is AFFIRMED.


On November 5, 2010, Plaintiff protectively filed a DIB application, alleging disability as of October 30, 2008, due to neck and shoulder problems, hearing loss, and sleep problems. See Administrative Record ("AR") 151-57, 221, 225, 247. Her application was denied upon initial administrative review and on reconsideration. See AR 103-05, 107-08. A hearing was held before an administrative law judge ("ALJ") on May 8, 2012, at which Plaintiff, represented by counsel, appeared and testified, as did a vocational expert ("VE"). See AR 43-80.

On May 25, 2012, the ALJ issued a decision finding Plaintiff not disabled. See AR 25-37. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on October 18, 2013, making the ALJ's decision the Commissioner's final decision. See AR 1-6; see also 20 C.F.R. § 404.981, § 416.1481. On December 7, 2013, Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's decision. See ECF # 1. The administrative record was filed with the Court on February 13, 2014. See ECF ## 11, 12. 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 the Commissioner for payment of benefits, because the ALJ erred: (1) in failing to include urge incontinence as a severe impairment at step two, (2) in evaluating the medical evidence in the record; (3) in discounting Plaintiff's credibility; and (4) in assessing Plaintiff's residual functional capacity ("RFC"). For the reasons set forth below, the Court disagrees that the ALJ erred in determining Plaintiff to be not disabled, and therefore affirms the Commissioner's decision. Although Plaintiff requests oral argument (ECF # 13), the Court finds such argument to be unnecessary here.


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. Comm'r of Social 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 Hum. Servs., 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 that the ALJ erred in failing to include urinary urge incontinence as a severe impairment at step two. The ALJ noted that Plaintiff experienced incontinence issues, but that post-bladder surgery they caused "only transient and mild symptoms and limitations, did not persist for twelve continuous months, and do not have greater than [] minimal limitations on the claimant's ability to perform basic work activities and are therefore considered non severe." AR 28. Plaintiff argues that she continued to experience urge incontinence issues post-surgery, and that even if urge incontinence was not a severe impairment, the ALJ should have considered the limitations it causes when assessing her RFC.

A. Legal Standards

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, at *1 (Jul. 2, 1996). 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, at *3 (Jan. 1, 1985); 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.

B. Urge Incontinence

The medical record contains evidence that Plaintiff complained of urge incontinence, but does not contain any medical opinion regarding the limitations caused by Plaintiff's urge incontinence. See AR 699, 717. The only evidence of record establishing the limitations caused by Plaintiff's urge incontinence is Plaintiff's hearing testimony. See AR 58-59, 68. The record does not show that Plaintiff sought treatment for her urge incontinence post-surgery, even though her treating physician believed that treatment was available. AR 717.

The dearth of objective evidence establishing the existence of limitations caused by Plaintiff's urge incontinence is fatal to her assignment of error, because there is no medical evidence establishing the severity of the impairment. See SSR 96-3p, at *2 (Jul. 2, 1996) (instructing an ALJ to perform "a careful evaluation of the medical findings that describe the impairment(s) (i.e., the objective medical evidence and any impairment-related symptoms), and an informed judgment about the limitations and restrictions the impairment(s) and related symptom(s) impose on the individual's physical and mental ability to do basic work activities"). As explained infra, the ALJ's adverse credibility determination is supported by substantial evidence, and thus the ALJ was not required to credit ...

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