United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge
Karen Lynne Bonifas filed this action, pursuant to 42 U.S.C.
§ 405(g), for judicial review of Defendant's denial
of Plaintiff's applications for supplemental security
income (“SSI”) and disability insurance benefits
(“DIB”). Pursuant to 28 U.S.C. § 636(c),
Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the
parties have consented to have this matter heard by the
undersigned Magistrate Judge. See Dkt. 7.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred when she
failed to consider all of Plaintiff's severe impairments
at Step Two. The ALJ also failed to give proper weight to
medical opinion evidence. Had the ALJ properly considered
this evidence, the residual functional capacity
(“RFC”) may have included additional limitations.
The ALJ's error is therefore not harmless, and this
matter is reversed and remanded pursuant to sentence four of
42 U.S.C. § 405(g) to the Acting Commissioner of Social
Security (“Commissioner”) for further proceedings
consistent with this Order.
AND PROCEDURAL HISTORY
April 5, 2013, Plaintiff filed an application for SSI and
DIB, alleging disability as of October 1, 2009. See
Dkt. 10, Administrative Record (“AR”) 23. The
application was denied upon initial administrative review and
on reconsideration. See AR 21. A hearing was held
before ALJ Virginia M. Robinson on May 14, 2015. AR 21. At
the hearing, Plaintiff amended her disability onset date to
February 11, 2013. AR 21.
decision dated July 31, 2015, the ALJ determined Plaintiff to
be not disabled. See AR 21-32. Plaintiff's
request for review of the ALJ's decision was denied by
the Appeals Council, making the ALJ's decision the final
decision of the Commissioner. See AR 1-4; 20 C.F.R.
§ 404.981, § 416.1481.
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred by: (1) failing to find Plaintiff's bipolar
disorder, post-traumatic stress disorder
(“PTSD”), panic disorder, and pain disorder were
severe impairments at Step Two; and (2) discounting the
medical opinions of Drs. Faulder Colby, Ph.D., and Michael
Picco, D.O. Dkt. 14, p. 4-17.
to 42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits 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
Whether the ALJ failed to properly consider all of
Plaintiff's severe mental impairments at
asserts the ALJ erred by failing to find her bipolar
disorder, PTSD, panic disorder, and pain disorder were severe
impairments at Step Two of the sequential evaluation process.
Dkt. 13, pp. 15-17.
Two of the administration's evaluation process requires
the ALJ to determine whether the claimant “has a
medically severe impairment or combination of
impairments.” Smolen v. Chater, 80 F.3d 1273,
1290 (9th Cir. 1996) (citation omitted); 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (1996). An
impairment is “not severe” if it does not
“significantly limit” the ability to conduct
basic work activities. 20 C.F.R. §§ 404.1521(a),
416.921(a). Regarding mental impairments, the ALJ will
consider four broad functional areas: activities of daily
living; social functioning; concentration, persistence, or
pace; and episodes of decompensation. 20 C.F.R. §
404.1520a(c)(3). If the ALJ rates the degree of a
claimant's limitation “in the first three
functional areas as ‘none' or ‘mild' and
‘none' in the fourth area, [the ALJ] will generally
conclude that [the claimant's] impairment(s) is not
severe, unless the evidence otherwise indicates that there is
more than a minimal limitation in [the claimant's]
ability to do basic work activities.” Id. at
(d)(1). “An impairment or combination of impairments
can be found ‘not severe' only if the evidence
establishes a slight abnormality having ‘no more than a
minimal effect on an individual[']s ability to
work.'” Smolen, 80 F.3d at 1290 (quoting
Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)
(adopting Social Security Ruling “SSR” 85-28)).
Two, the ALJ found Plaintiff had the following severe
impairments: “osteoarthritis, right rotator cuff
syndrome, obesity, affective disorder, and anxiety
disorder.” AR 23. The ALJ further opined Plaintiff had
the non-severe impairments of GERD and fatty infiltration of
the liver. AR 23. While the ALJ discussed Plaintiff's
affective and anxiety disorders at Step Two, the ALJ failed
to discuss four of Plaintiff's other diagnosed mental
impairments - bipolar disorder, PTSD, panic disorder, and
pain disorder - at Step Two. See AR 23. The ALJ also
did not discuss these mental impairments in any other part of
her decision. See AR 21-32.
Sylvia A. Thorpe, Ph.D., Jeffrey Nelson, M.D., and Faulder
Colby, Ph.D. - each an acceptable medical source - diagnosed
Plaintiff as having one or more of these four mental
impairments. See AR 293, 384, 435. Plaintiff's
mental impairments cause functional limitations which impact
her ability to perform basic work activities. For example,
Dr. Thorpe opined Plaintiff has mild limitations in her
ability to learn new tasks, work safely, and communicate with
and perform for the public. AR 296. When Plaintiff saw Dr.
Nelson, she complained her depression had increased. AR 433.
She reported excessive sleep and reduced energy, motivation,
and interest. AR 433. Plaintiff also told Dr. Nelson she was
having difficulty concentrating and decision-making, and both
self-care and house upkeep had “deteriorated.” AR
Colby opined Plaintiff has moderate limitations in her
ability to understand, remember, and persist through tasks
accompanying short and simple instructions. AR 385. He found
Plaintiff moderately limited in her ability to communicate
and perform effectively in a work setting. AR 385. Dr. Colby
further opined Plaintiff has marked limitations in several
areas, including her ability to understand, remember, and
persist in tasks accompanying detailed instructions, and her
ability to adapt to change in routine work settings. AR 385.
Additionally, Dr. Colby found Plaintiff is severely impaired
in her ability to complete a normal work day and work week
without interruptions from psychological symptoms. AR 385.
the record establishes that acceptable medical sources
diagnosed Plaintiff with these four mental impairments, and
these impairments significantly limit Plaintiff's ability
to conduct basic work activities. Plaintiff is limited in
several areas, including her ability to learn new tasks,
communicate and perform effectively in a work setting, and
complete a normal work day and work week without
interruptions from psychological symptoms. Therefore, the
Court finds the record shows Plaintiff's four mental
impairments, which were not discussed by the ALJ, are severe
impairments. Thus, the ALJ erred at Step Two when she failed
to find these four mental impairments were severe.
argues, even if the ALJ erred at Step Two, any error was
harmless. Dkt. 15, pp. 10-11. “[H]armless error
principles apply in the Social Security context.”
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012). An error is harmless, however, only if it is not
prejudicial to the claimant or “inconsequential”
to the ALJ's “ultimate nondisability
determination.” Stout v. Comm'r of Soc. Sec.
Admin.,454 F.3d 1050, 1055 (9th Cir. 2006); see
Molina, 674 F.3d at 1115. The determination as to
whether an error is harmless requires a “case-specific
application of judgment” by the reviewing court, based
on an examination of the record made “‘without
regard to errors' that do not affect the parties'
‘substantial rights.'” Molina, 674
F.3d at 1118-1119 (quoting Shinseki v. ...