United States District Court, W.D. Washington
ORDER REVERSING AND REMANDING CASE FOR FURTHER
Honorable Richard A. Jones United States District Judge
Jean Austin filed a pro se complaint and a
subsequent amended complaint requesting the Court reverse the
Administrative Law Judge's (ALJ) decision finding her not
disabled. Dkt. 6, 9. On July 18, 2014, the ALJ issued a
decision finding fibromyalgia, status post ruptured ovarian
cyst, gastritis and duodenitis, somatization
disorder, and adjustment disorder to be severe
impairments. Tr. 20-36. The ALJ determined Ms. Austin
retained the Residual Functional Capacity (RFC) to perform
medium work, with additional limitations including that she
could perform simple, routine, tasks, could tolerate few, if
any changes in work routine or environment, and could have no
contact with the public. Tr. 26. The ALJ found that with this
RFC Ms. Austin was not disabled because she could perform
other jobs in the national economy including hand packager,
kitchen helper, marker, and garment sorter. Tr. 35-36. The
Appeals Council denied Ms. Austin's request for review
making the ALJ's decision the Commissioner's final
decision. Tr. 8-14.
amended complaint and opening brief, Ms. Austin lists claimed
impairments of: severe anxiety; manic rage; bi-polar;
dysplasia; asthma; chronic respiratory issues; and migraines
due to head trauma. Dkts. 9, 15. As the ALJ's decision
does not discuss these claimed impairments the Court
understands Ms. Austin to argue that the ALJ erred in failing
to consider these impairments severe. Id.; Dkt. 14.
Ms. Austin also lists claimed impairments of: depression;
PTSD; loss of short term memory and some long term memory
loss due to head trauma; neck, shoulder and back pain; severe
nausea daily; fibromyalgia; endometriosis; ovarian cyst;
thyroid disorder; IBS; spastic colon; arthritis and acid
reflux. Id. These claimed impairments are noted by
the ALJ in the decision and the Court understands Ms.
Austin's amended complaint and opening brief to challenge
the ALJ's evaluation of the medical opinion evidence and
lay opinion evidence with respect thereto. Id. The
Court also understands Ms. Austin's amended complaint and
opening brief to challenge the ALJ's decision to find her
not entirely credible with respect to her symptoms.
Id. Ms. Austin also argues that the ALJ erred in
considering the testimony of the vocational expert at the
hearing. Dkt. 15 at 6.
discussed below, the Court concludes the ALJ erred in
evaluating some of the medical and lay opinion evidence. The
Court accordingly REVERSES and
REMANDS this case for further administrative
Standard of Review
Austin asks the Court to review and reverse the ALJ's
decision, which is the Commissioner's final decision in
this case. After the Commissioner's final decision, a
person seeking social security disability benefits “may
obtain a review of such decision by a civil action” in
district court. 42 U.S.C § 405(g). As with other agency
decisions, this Court's review of social security
determinations is limited. The Court may reverse the
ALJ's decision finding a person not disabled “only
if it is not supported by substantial evidence or is based on
legal error.” Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995). Substantial evidence means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See Valentine v.
Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.
2009). Importantly, when the evidence is susceptible to more
than one rational interpretation-the claimant's and the
ALJ's- the Court must uphold the ALJ's interpretation
if it is supported by inferences reasonably drawn from the
record. Tommasetti v. Astrue, 533 F.3d 1035, 1038
(9th Cir. 2008).
an individual's entitlement to disability benefits is a
highly fact-intensive individualized determination, Congress
has placed “a premium upon agency expertise, and, for
the sake of uniformity, it is usually better to minimize the
opportunity for reviewing courts to substitute their
discretion for that of the agency.” Consolo v. Fed.
Mar. Comm'n., 383 U.S. 607, 621 (1966).
Consequently, the ALJ, not the Court, determines credibility
and resolves conflicts in the testimony or ambiguities in the
record. See 42 U.S.C. § 405(g) (directing that
the Commissioner's “findings . . . as to any fact,
if supported by substantial evidence, shall be
conclusive.”). The person seeking review of the
ALJ's determination (the claimant) has the burden of
showing that the ALJ committed harmful error. Molina v.
Astrue, 674 F.3d 1104, 111 (9th Cir. 2012). As such, it
is Ms. Austin, not the Commissioner, who must prove the ALJ
harmfully erred in finding her not disabled. While the Court
may not try Social Security claim cases de novo, it has a
“duty ‘to scrutinize the record as a whole to
determine whether the conclusions reached have a reasonable
basis in law.'” Ainsworth v. Finch, 437
F.2d 446, 446 (9th Cir. 1971) (quoting Hicks v.
Gardner, 393 F.3d 299, 302 (4th Cir. 1968).
Additionally, where a party proceeds pro se, the Court must
construe the allegations of the pleading liberally and afford
her the benefit of any doubt. See Bretz v. Kelman,
773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc) (citation
Social Security Act regulations provide a five-step
sequential evaluation process for determining whether a
claimant is disabled. Tackett v. Apfel, 180 F.3d
1094, 1097 (9th Cir.1999); 20 C.F.R. §§ 404.1520,
416.920. The claimant has the burden of proof at steps one
through four and the Commissioner has the burden of proof for
step five. Id. The five steps of inquiry include:
1. Is the claimant engaged in substantial gainful activity?
If so, the claimant is not disabled within the meaning of the
SSA. If not, the inquiry proceeds to step two.
2. Does the claimant have a severe impairment or impairments?
If so, the inquiry proceeds to step three. If not, the
claimant is not disabled.
3. Does the impairment or impairments meet or equal one of a
list of specific impairments described in 20 C.F.R. Part 404,
Subpart P, App. 1? If so, the claimant is disabled. If not,
the inquiry proceeds to step four.
4. Is the claimant able to perform past work? If so, the
claimant is not disabled. If not, the inquiry proceeds to
5. Is the claimant able to do any other work that exists in
significant numbers in the national economy? If so, the
claimant is not disabled. If not, the claimant is disabled.
See 20 C.F.R. §§ 404.1520, 416.920.
Evaluation of Severe Impairmentsat Step Two
Austin contends the ALJ erred in failing to properly consider
her anxiety, manic rage, bi-polar disorder, dysplasia,
asthma, chronic respiratory issues and migraines due to head
trauma. Dkts. 9, 15. The ALJ did not discuss these claimed
impairments in his decision. Ms. Austin, as the claimant, has
the burden at step two of the sequential evaluation to show
that (1) she has a medically determinable physical or mental
impairment, and (2) the medically determinable impairment is
severe. See Bowen v. Yuckert, 482 U.S. 137, 146
(1987). A “‘physical or mental impairment' is
an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3),
1382c(a)(3)(D). “‘Regardless of how many symptoms
an individual alleges, or how genuine the individual's
complaints may appear to be, the existence of a medically
determinable physical or mental impairment cannot be
established in the absence of objective medical
abnormalities; i.e., medical signs and laboratory
findings[.]'” Ukolov v. Barnhart, 420 F.3d
1002, 1005 (9th Cir. 2005) (quoting SSR 96-4p). In addition
to producing evidence of a medically determinable physical or
mental impairment, the claimant bears the burden of
establishing that the impairment or impairments is
“severe.” See Bowen, 482 U.S.
at 146. An impairment or combination of impairments is severe
if it significantly limits the claimant's physical or
mental ability to do basic work activities. 20 C.F.R.
§§ 404.1520(c), 404.1521(a).
while “manic rage” is a symptom Ms. Austin claims
to experience, it is not diagnosed separately as a medically
determinable impairment or supported by medical signs and
laboratory findings. Dkts. 9, 15 at 1. Moreover, migraines,
dysplasia, asthma and respiratory issues are mentioned very
infrequently in the medical record and typically in the
medical history section of the records, not as current or
ongoing impairments or complaints. Furthermore, Ms. Austin
fails to point to any evidence indicating that these claimed
impairments affect her ability to perform basic work
activities. Accordingly, the Court cannot conclude the ALJ
erred in failing to find these claimed impairments to be
severe. Ms. Austin also contends she has anxiety and bipolar
disorder. Dkts. 9, 15. However, these impairments do not
appear to be established as separate impairments by objective
medical evidence from an acceptable medical source in the
record. See 20 C.F.R. §§
404.1521, 20 C.F.R. § 416.921 (a physical or mental
impairment must be established by objective medical evidence
from an acceptable medical source); 20 C.F.R. §404.1502
(listing acceptable medical sources as licensed physicians,
licensed psychologists, licensed optometrist, licensed
podiatrist, qualified speech-language pathologist, licensed
audiologist, and for claims filed on or after March 27, 2017,
licensed advanced practice registered nurses and licensed
physician assistants); see SSR 06-03p (licensed
clinical social workers and therapists are not considered
“acceptable medical sources”). Accordingly, the
Court also does not find the ALJ erred in failing to consider
these claimed impairments severe.
The ALJ's Evaluation of the Medical Evidence
Austin also challenges the ALJ's evaluation of the
medical opinion evidence with respect to her mental and
physical impairments. Dkts. 9, 15. The Court agrees
the ALJ erred in evaluating some of the medical opinion