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Lane v. Colvin

United States District Court, Western District of Washington, Tacoma

April 1, 2015

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


Karen L. Strombom United States 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 October 1, 2010, Plaintiff protectively filed a DIB application, alleging disability as of September 7, 2009, due to partial thumb amputation, depression, memory loss, blurred vision, and dizziness. See Administrative Record (“AR”) 204-05, 214, 218. Her application was denied upon initial administrative review and on reconsideration. See AR 136-38, 145-49. A hearing was held before an administrative law judge (“ALJ”) on May 30, 2012, at which Plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 55-103.

On August 27, 2012, the ALJ issued a decision finding Plaintiff not disabled. See AR 11-23. Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals Council on July 21, 2014, making the ALJ’s decision the Commissioner’s final decision. See AR 1-7; see also 20 C.F.R. §§ 404.981, 416.1481.

On August 19, 2014, Plaintiff filed a complaint in this Court seeking judicial review of the ALJ’s decision. See ECF ## 1, 3. The administrative record was filed with the Court on November 4, 2014. See ECF ## 12, 13. 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 a finding of disability, or further proceedings in the alternative, because the ALJ erred: (1) in failing to include depression as a severe impairment at step two, (2) in evaluating the medical opinions of an examining psychologist and a treating physician, and (3) in discounting Plaintiff’s credibility.[1] For the reasons set forth below, the Court disagrees that the ALJ erred in finding Plaintiff to be not disabled, and therefore affirms the Commissioner’s decision.


The Commissioner’s determination that a claimant is not disabled must be upheld by the Court if the “proper legal standards” have been applied 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 & Human 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))).[2]

I. The ALJ’s Step-Two Determination

Plaintiff argues that the ALJ erred in failing to find her depression to be a severe impairment at step two. Plaintiff does not identify any functional limitations that were caused by her depression that were therefore omitted from consideration at later steps in the disability evaluation.

The Commissioner argues that the ALJ’s failure to list depression at step two was a harmless oversight, given that the ALJ considered whether Plaintiff met the listing that corresponds to depression and considered Plaintiff’s subjective complaints of depression and medical opinions regarding the effect of Plaintiff’s depression when assessing her residual functional capacity. ECF # 17 at 11 (citing AR 16-17).

Plaintiff argues on Reply that the ALJ is nonetheless required to specifically consider each severe impairment at “all levels of the disability evaluation sequence[, ]” citing Hill v. Astrue, 698 F.3d 1153, 1161. Hill does not address whether an error at step two can be harmless, however, and other Ninth Circuit authority makes clear that a step-two error is harmless where the ALJ considers all limitations in assessing the claimant’s RFC. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding that a failure to ...

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