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Bonifas v. Berryhill

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

October 4, 2017

KAREN LYNNE BONIFAS, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge

         Plaintiff 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.

         After 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.

         FACTUAL AND PROCEDURAL HISTORY

         On 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.

         In a 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.

         In 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.

         STANDARD OF REVIEW

         Pursuant 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 Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ failed to properly consider all of Plaintiff's severe mental impairments at Step Two.

         Plaintiff 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.

         Step 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)).

         A. Severe Impairments

         At Step 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[1] 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.

         Drs. 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.[2] 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 433.

         Dr. 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.

         In sum, 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.

         B. Harmless Error

         Defendant 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. ...


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