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Norton v. Berryhill

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

July 25, 2017

EDWARD NORTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION AND DISMISSING THE CASE WITH PREJUDICE

          JOHN C. COUGHENOUR United States District Judge

         Edward 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.

         BACKGROUND

         In 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.

         THE ALJ'S DECISION

Utilizing the five-step disability evaluation process, [2] the ALJ found:
Step one: Mr. Norton has not engaged in substantial gainful activity since August 5, 2005, the alleged disability onset date.
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.[3]
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.

         DISCUSSION

         The 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.

         A. Step Two

         Mr. 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.

         At step 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).

         In 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).

         Mr. 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.

         Even if 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.

         Mr. 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.[4] 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 ...


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