United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON PLAINTIFF'S
W. Christel United States Magistrate Judge.
District Court has referred this action, filed pursuant to 42
U.S.C. § 405(g), to United States Magistrate Judge David
W. Christel. Plaintiff seeks judicial review of
Defendant's denial of his application for disability
insurance benefits (“DIB”).
reviewing the record, the Court concludes the Administrative
Law Judge (“ALJ”) erred by failing to evaluate
the opinion of Plaintiff's treating nurse. The ALJ also
erred by failing to properly evaluate the opinion of
Plaintiff's examining psychologist, and by failing to
find Plaintiff's diabetes was a severe impairment at Step
Two of the sequential evaluation. Therefore, the undersigned
recommends this matter be reversed and remanded, pursuant to
sentence four of 42 U.S.C. § 405(g), for further
January 15, 2015, Plaintiff filed an application for DIB.
See Dkt. 10, Administrative Record
(“AR”) 162-68. Plaintiff alleges he became
disabled on March 6, 2014, due to posttraumatic stress
disorder (“PTSD”), diabetes mellitus, high blood
pressure, and knee problems. See AR 162, 184.
Plaintiff's application was denied upon initial
administrative review and on reconsideration. See AR
60, 72. A hearing was held before an ALJ on November 24,
2015, at which Plaintiff, represented by counsel, appeared
and testified. See AR 40.
January 4, 2016, the ALJ found Plaintiff was not disabled
within the meaning of Sections 216(i) and 223(d) of the
Social Security Act. AR 35. Plaintiff's request for
review of the ALJ's decision was denied by the Appeals
Council on April 21, 2016, making that decision the final
decision of the Commissioner of Social Security (the
“Commissioner”). See AR 1, 20 C.F.R.
§ 404.981, § 416.1481. On June 17, 2016, Plaintiff
filed a complaint in this Court seeking judicial review of
the Commissioner's final decision.
argues the denial of benefits should be reversed and remanded
for further proceedings, because the ALJ: 1) failed to find
his diabetes mellitus to be a severe impairment at Step Two
of the sequential evaluation; 2) failed to properly evaluate
the opined limitations from Plaintiff's treating nurse
and Plaintiff's examining psychologist; 3) improperly
discounted Plaintiff's Veteran's Administration
(“VA”) disability rating; and 4) propounded an
incomplete residual functional capacity (“RFC”)
finding. Dkt. 14, p. 2.
42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits only 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)). “Substantial evidence” is
more than a scintilla, less than a preponderance, and is such
“‘relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989) (quoting Davis v. Heckler, 868 F.2d 323,
325-26 (9th Cir. 1989)).
Whether the ALJ Erred by Failing to Consider
Plaintiff's Diabetes Mellitus to be a Severe
Impairment at Step Two of the Sequential Evaluation.
Two of the sequential evaluation, the ALJ must determine if a
claimant has a “severe medically determinable physical
or mental impairment.” 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii) (2015) . See also
Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996)
(internal citation omitted). Impairments must result
“from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable
clinical and laboratory diagnostic techniques.” 20
C.F.R. § 416.908 (2010). A medically determinable
impairment is considered “severe” if it
“significantly limits [a claimant's] physical or
mental ability 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,
” including, for example, “walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying or
handling; capacities for seeing, hearing and speaking;
understanding, carrying out, and remembering simple
instructions; use of judgment; responding appropriately to
supervision, co-workers and usual work situations; and
dealing with changes in a routine work setting.” 20
C.F.R. § 404.1521(b), § 416.921(b); SSR 85- 28,
1985 WL 56856 *3.
Step Two inquiry, however, is merely a threshold
determination as to whether a claimant has raised a
“prima facie case of a disability.” Hoopai v.
Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). See
also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996) (noting the Step Two determination is a de
minimis screening device used to dispose of groundless
claims). “Ample authority cautions against a
determination of nondisability at step two.” Ortiz
v. Commissioner of Social Sec., 425 Fed.Appx. 653, 655
(9th Cir. 2011) (citing Bowen v. Yuckert, 482 U.S.
137, 153 (1987); Webb v. Barnhart, 433 F.3d 683, 686
(9th Cir. 2005), Smolen, 80 F.3d at 1290. An
impairment or combination of impairments may be ...