United States District Court, W.D. Washington, Seattle
DAWNA T. USE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
ORDER ON PLAINTIFF'S COMPLAINT
W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE
filed this action, pursuant to 42 U.S.C § 405(g),
seeking judicial review of the denial of Plaintiff's
applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) benefits. The parties have consented to
proceed before a United States Magistrate Judge. See
28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate
Judge Rule MJR 13. See also Consent to Proceed
before a United States Magistrate Judge, Dkt. 6.
reviewing the record, the Court concludes the Administrative
Law Judge (“ALJ”) erred by failing to properly
evaluate whether Plaintiff's macular degeneration
constituted a severe impairment at Step Two of the sequential
evaluation. The ALJ also erred in failing to properly
evaluate the opinion of one non-examining psychologist.
Therefore, this matter is reversed and remanded, pursuant to
sentence four of 42 U.S.C. § 405(g), for further
10, 2013, Plaintiff filed applications for DIB and SSI.
See Dkt. 9, Administrative Record (“AR”)
198-211. Plaintiff alleges she became disabled on January 1,
2009, due to Post-Traumatic Stress Disorder
(“PTSD”), lumbar stenosis, gender identity
disorder, macular degeneration with vision loss, and frequent
cellulitis infections. See AR 198, 241.
Plaintiff's applications were denied upon initial
administrative review and on reconsideration. See AR
86-87, 122-23. A hearing was held before an ALJ on May 19,
2015, at which Plaintiff, represented by counsel, appeared
and testified. See AR 31. During the hearing,
Plaintiff amended her disability onset date to April 24,
2012. AR 33.
26, 2015, the ALJ found Plaintiff was not disabled within the
meaning of Sections 216(i), 223(d), and 1614(a)(3)(A) of the
Social Security Act. AR 22. Plaintiff's request for
review of the ALJ's decision was denied by the Appeals
Council on September 19, 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 October 27, 2017,
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) improperly found
Plaintiff's macular degeneration was not a severe
impairment at Step Two of the sequential evaluation; 2)
failed to properly evaluate the opinions of one non-examining
and one examining psychologist; and 3) the ALJ improperly
discounted Plaintiff's subjective symptom testimony Dkt.
11, p. 1.
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 Macular Degeneration 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 found
“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.” Smolen, 80
F.3d at 1290.
Plaintiff argues she presented sufficient evidence to
demonstrate her macular degeneration was a severe medically
determinable impairment. The record reflects Plaintiff had
20/200 visual acuity on a Snellen eye test in August, 2013,
despite a prior history of eye surgery. AR 603, 615.
Plaintiff was referred to an ophthalmologist at that time. AR
615. At her hearing, Plaintiff testified she had difficulty
seeing out of her right eye, and her prior ophthalmologist
had advised her they would be unable to help her. AR 42.
Further, two state agency medical consultants opined
Plaintiff's macular degeneration constituted a ...