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Truett v. Berryhill

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

March 9, 2017

MICHAEL TRUETT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT

          David W. Christel United States Magistrate Judge.

         The 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”).

         After 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 proceedings.

         PROCEDURAL& FACTUAL HISTORY

         On 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.

         On 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.

         Plaintiff 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.

         STANDARD OF REVIEW

         Under 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)).

         DISCUSSION

         I. Whether the ALJ Erred by Failing to Consider Plaintiff's Diabetes Mellitus to be a Severe Impairment at Step Two of the Sequential Evaluation.

         A. Standard

         At Step 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.

         The 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 ...


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