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Maestas v. Colvin

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

September 10, 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 her application for 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.


On December 28, 2010, plaintiff filed an application for disability insurance benefits and another one for SSI benefits, alleging in both applications she became disabled beginning December 31, 2006. See ECF #14, Administrative Record ("AR") 10. Both applications were denied upon initial administrative review and on reconsideration. See id. A hearing was held before an administrative law judge ("ALJ") on July 16, 2012, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 30-78. Also at that hearing, plaintiff amended her alleged onset date of disability to May 19, 2010, after her date last insured, [1] thereby resulting in the voluntary withdrawal of her application for disability insurance benefits. See AR 10, 33-34.

In a decision dated September 24, 2012, the ALJ determined plaintiff to be not disabled. See AR 10-23. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on August 2, 2013, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1; 20 C.F.R. § 416.1481. On October 10, 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 March 10, 2014. See ECF #14. 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, or in the alternative for further administrative proceedings, because the ALJ erred: (1) in finding plaintiff did not have a severe mental impairment; (2) in evaluating the medical evidence in the record; (3) in discounting plaintiff's credibility; (4) in assessing her residual functional capacity; and (5) in finding her to be capable of both returning to her past relevant work and performing other jobs existing in significant numbers in the national economy. Plaintiff also argues additional evidence submitted to the Appeals Council warrants remand for further proceedings. 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)).[2]

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. § 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." Id. 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. § 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. § 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 found at step two in this case that although plaintiff had medically determinable mental impairments, they were not severe. See AR 12-15. Plaintiff argues the medical evidence in the record supports a finding of severity, but most of the objective clinical findings she cites actually shows her mental impairments have not had more than a minimal impact on her ability to perform basic work activities. See ECF #17, pp. 7-9 (citing AR 433, 829, 831-32, 834-35, 837-38, 875, 890). Plaintiff does point to a global assessment of functioning ("GAF") score of 51 in the record (see id. at p. 8 (citing AR 832)), but such a score is a subjective determination of ability to function. See Pisciotta v. Astrue, 500 F.3d 1074, 1076 n.1 (10th Cir. 2007)[3]; SSR 85-28, 1985 WL 56856 *4 (at step two "medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities"). Nor has plaintiff challenged the ALJ's reasons for not adopting that score. See AR 15; See Carmickle v. Commissioner of Social Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (issue not argued with specificity will not be addressed); Paladin Associates., Inc. v. Montana Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (by failing to make argument in opening brief, objection to district court's order was waived); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir.1998) (matters not specifically and distinctly argued in opening brief ordinarily will not be considered).

Plaintiff also points to a May 4, 2012 evaluation report from Terilee Wingate, Ph.D., who assessed a current GAF score of 45, [4] along with certain specific mental functional limitations. See AR 910-11. That evaluation report was not presented to the ALJ, however, and therefore she cannot be faulted for failing to consider it. In addition, as just noted a GAF score constitutes a subjective determination of ability to function rather than objective clinical evidence thereof, and as discussed in greater detail below, the Court declines to find Dr. Wingate's evaluation report - as well as the other additional evidence submitted to the Appeals Council - provides a sufficient basis for overturning the ALJ's non-disability determination.

Lastly, plaintiff takes issue with the ALJ's decision to accord significant weight to the mild mental functional limitations assessed by examining psychologist, Janis L. Lewis, Ph.D., and non-examining psychologists, Matthew Comrie, Psy.D., and Bruce Eather, Ph.D. (see AR 13-15), asserting it is apparent her mental impairments worsened subsequent to when those assessment were given. Plaintiff fails to point to specific evidence that worsening had occurred, however, nor does the ...

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