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Use v. Berryhill

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

April 21, 2017

DAWNA T. USE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.



         Plaintiff 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.

         After 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 proceedings.


         On May 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.

         On June 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.

         Plaintiff 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.


         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)).


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

         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 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.

         Here, 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 ...

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