United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING THE CASE WITH PREJUDICE
C. COUGHENOUR United States District Judge
Norton seeks review of the denial of his application for
Title II Disability Insurance Benefits and Title XVI
Supplemental Security Income. Mr. Norton contends the ALJ
erred in: (1) failing to find chronic pain syndrome and
sacroiliac (SI) joint arthritis severe impairments at step
two; (2) evaluating the opinions of Oscar Cogan, M.D. and
Lynn L. Staker, M.D., with respect to his physical
impairments; (3) evaluating the opinions of examining
psychologists Kimberly Wheeler, Ph.D., Norma Brown, Ph.D.,
Katrina Higgins, Psy.D., and Dan Neims, Psy.D. with respect
to his mental impairments; (4) evaluating his own symptom
testimony; and, (5) evaluating the lay witness testimony.
Dkt. 9. As relief, Mr. Norton contends this matter should be
reversed and remanded for further proceedings. Id.
at 19. As discussed below, the Court AFFIRMS
the Commissioner's final decision and
DISMISSES the case with prejudice.
September 2006, Mr. Norton applied for Title II benefits,
alleging disability as of August 5, 2005. Tr. 1457. Mr.
Norton's claim was denied initially and on
reconsideration and by Administrative Law Judge (ALJ) M.J.
Adams in a hearing level decision dated March 30, 2009.
Id. ALJ Adams' decision was remanded and Mr.
Norton's subsequent claim for Title II and Title XVI
benefits were associated with the original claim.
Id. ALJ Adams issued another unfavorable decision on
March 14, 2013. Id. ALJ Adams' decision was
remanded again by the Appeals Council pursuant to an order by
the District Court. Id. On March 17, 2016, ALJ Larry
Kennedy conducted a hearing and on May 16, 2016, issued a
decision finding Mr. Norton not disabled. Tr. 1457-1473.
Utilizing the five-step disability evaluation process,
Step one: Mr. Norton has not engaged in substantial gainful
activity since August 5, 2005, the alleged disability onset
Step two: Mr. Norton has the following severe impairments:
degenerative disc disease, obesity, dyslexia, learning
disorder (reading and writing), major depressive disorder
versus adjustment disorder, anxiety disorder versus panic,
and personality disorder.
Step three: These impairments do not meet or equal the
requirements of a listed impairment.
Residual Functional Capacity: Mr. Norton can perform light
work with additional limitations. He can occasionally
balance, stoop, kneel, and crouch. He cannot climb or crawl.
He must avoid concentrated exposure to vibration and hazards.
He can perform simple, routine tasks and follow short, simple
instructions. He can do work that needs little or no judgment
and can perform simple duties that can be learned on the job
in a short period. He requires a work environment with
minimal supervisor contact. (Minimal contact does not
preclude all contact, rather it means that contact does not
occur regularly. Minimal contact also does not preclude
simple and superficial exchanges and does not preclude being
in proximity to the supervisor.). He can work in proximity to
coworkers, but not in a cooperative or team effort. He
requires a work environment that has more than superficial
interactions with coworkers. He requires a work environment
that is predictable and with few work setting changes. He
requires a work environment without public contact. He cannot
be required to read detailed or complex instructions, to
write reports, or to do detailed or complex math calculations
such as in a teller or a cashier position.
Step four: Mr. Norton cannot perform past relevant work.
Step five: As there are jobs that exist in significant
numbers in the national economy that Mr. Norton can perform,
he is not disabled.
Tr. 1459-1463. Mr. Norton now appeals ALJ Kennedy's
decision denying him benefits.
Court may reverse an ALJ's decision only if it is not
supported by substantial evidence or if the ALJ applied the
wrong legal standard. See Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012). Even then, the Court will reverse
the ALJ's decision only if the claimant demonstrates that
the ALJ's error was harmful. Id.
Norton contends the ALJ harmfully erred in failing to include
chronic pain syndrome and mild SI joint arthritis as severe
impairments at step two. Dkt. 9. The Court disagrees.
two of the sequential evaluation, the Commissioner must
determine “whether the claimant has a medically severe
impairment or combination of impairments.” See
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20
C.F.R. § 404.1520(a)(4)(ii). The claimant has the burden
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). Thus, a medically
determinable impairment must be established by objective
medical evidence from an acceptable medical source. 20 C.F.R.
§ 404.1521. “‘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).
addition to producing evidence of a medically determinable
physical or mental impairment, the claimant bears the burden
at step two 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). “The step two inquiry is a de
minimus screening device to dispose of groundless
claims.” 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.'” Id. (citing Yuckert v.
Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). However, the
claimant has the burden of proving her “impairments or
their symptoms affect her ability to perform basic work
activities.” Edlund v. Massanari, 253 F.3d
1152, 1159-60 (9th Cir. 2001).
Norton notes that he was diagnosed with chronic pain syndrome
by several providers. Dkt. 9 at 4. However, the providers who
mention chronic pain syndrome discuss Mr. Norton's
chronic pain only in the context of his lower back problems.
Mr. Norton fails to explain how harmful error resulted from
the ALJ's failure to consider chronic pain as a separate
syndrome rather than a symptom of his lower back problems.
Mr. Norton fails to identify any evidence indicating that
chronic pain syndrome produces pain independent of or
different from the pain he alleges flows from his lower back
impairment, and the ALJ included degenerative disc disease as
a severe impairment. Moreover, a diagnosis alone is not
sufficient to establish a severe impairment. Instead, a
claimant must show that her medically determinable
impairments are severe. 20 C.F.R. §§ 404.1520(c),
416.920(c). In this case, Mr. Norton has not demonstrated
that chronic pain syndrome limits his ability to perform
basic work activities to a greater extent than considered by
the ALJ in evaluating the pain and symptoms allegedly flowing
from his lumbar degenerative disc disease.
the ALJ should have included chronic pain syndrome as a
separate severe impairment at step two, any error was
harmless as he considered Mr. Norton's pain symptoms in
assessing his RFC and, as discussed below, properly
discounted Mr. Norton's pain testimony. See Lewis v.
Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that
an ALJ's failure to list an impairment as severe at step
two is harmless error where limitations caused by that
impairment were considered at step four). Mr. Norton
speculates that “chronic pain syndrome may
explain the degree of limitation Plaintiff experiences from
pain, and may result in a more significantly limited
residual functional capacity assessment.” Dkt. 9 at 5.
However this argument is purely speculative and Mr. Norton
fails to identify evidence establishing that chronic pain
syndrome produced a limitation beyond what was considered by
the ALJ or included in the RFC. See id.
Norton also notes that he was diagnosed with mild SI joint
arthritis. Dkt. 9 at 5. However, Mr. Norton has not
demonstrated that SI joint arthritis significantly limits his
ability to perform basic work activities. Mr. Norton fails to
identify any evidence indicating that SI joint arthritis
produces pain or symptoms independent of or different from
the pain the ALJ considered as flowing from his lower back
degenerative disc disease, which the ALJ did include as a
severe impairment. In fact, the ALJ specifically notes that
“[r]egardless of the exact diagnoses, I have considered
the claimant's pain in connection with his spinal
impairment, along with all of his mental ...