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Schuyleman v. Berryhill

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

November 30, 2017

HEIDIE M SCHUYLEMAN, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David W. Christel United States Magistrate Judge.

         The District Court has referred this action, filed pursuant to 42 U.S.C. § 405(g), to United States Magistrate Judge David W. Christel. Plaintiff filed this matter seeking judicial review of Defendant's denial of her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when he failed to properly consider all of Plaintiff's severe impairments at Step Two and the medical opinion evidence. Had the ALJ properly considered all of Plaintiff's severe impairments at Step Two and the medical opinion evidence, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, and the undersigned recommends this matter be 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 Report and Recommendation.

         FACTUAL AND PROCEDURAL HISTORY

         On November 14, 2013, Plaintiff filed an application for DIB, and on November 19, 2013, Plaintiff filed an application for SSI. See Dkt. 8, Administrative Record (“AR”) 25. In both applications, Plaintiff alleged disability as of August 18, 2012.[1] AR 25. The applications were denied upon initial administrative review and on reconsideration. See AR 25. ALJ Glenn G. Meyers held a hearing on October 7, 2015. AR 44-82. In a decision dated December 3, 2015, the ALJ determined Plaintiff to be not disabled. AR 25-38. 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 1-3; 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 lumbar radiculopathy was a severe impairment at Step Two; (2) discounting the medical opinions of Drs. Mark Heilbrunn, M.D., and Kerry Bartlett, Ph.D.; (3) failing to provide specific, clear and convincing reasons to discredit Plaintiff's subjective symptom testimony; and (4) making Step Five findings which were not supported by substantial evidence. Dkt. 10, pp. 1, 3-18.

         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 properly assessed all of Plaintiff's severe impairments at Step Two of the sequential evaluation process.

         Plaintiff first argues the ALJ erred by failing to find her left-sided lumbar radiculopathy was a severe impairment at Step Two. Dkt. 10, pp. 3-7.

         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). “Basic work activities are ‘abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.'” Smolen, 80 F.3d at 1290 (quoting 20 C.F.R. § 140.1521(b)). 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.'” Id. (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting Social Security Ruling “SSR” 85-28)).

         A. Severe Impairment

         At Step Two, the ALJ found Plaintiff has the following severe impairments: “migraines, cervical degenerative disc disease, depressive disorder, bipolar disorder, post-traumatic stress disorder (PTSD), carpal tunnel syndrome, somatic symptom disorder, and post concussive syndrome.” AR 27. The ALJ did not discuss lumbar left radiculopathy at Step Two or at any point throughout the remaining steps of the sequential evaluation process. See AR 27-38.

         Dr. Heilbrunn, an acceptable medical source, evaluated Plaintiff and diagnosed her with lumbar left radiculopathy.[2] AR 547. Plaintiff's left-sided lumbar radiculopathy causes functional limitations which impact her ability to perform basic work activities. In particular, Dr. Heilbrunn opined Plaintiff “could be expected to sit for at least 20 minutes interrupted . . . and has a maximum sitting capacity of 3-4 out of 8 hours, with limitation justified by lumbar left radiculopathy.” AR 547 (emphasis added). Dr. Heilbrunn further opined Plaintiff “could be expected to stand/walk for at least 20 minutes uninterrupted . . . and has a maximum standing/walking capacity of 3-4 out of 8 hours, with limitation justified by lumbar left radiculopathy.” AR 547 (emphasis added).

         Thus, the ALJ failed to discuss Plaintiff's diagnosis of left-sided lumbar radiculopathy at Step Two, and also failed to discuss significant, probative evidence showing Plaintiff's lumbar radiculopathy is a medically determinable impairment which causes functional limitations. See AR 27, 547. Accordingly, the ALJ erred at Step Two. See Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (an ALJ “may not reject significant probative evidence without explanation”).

         Furthermore, the undersigned finds Plaintiff's left-sided lumbar radiculopathy is a severe impairment, as an acceptable medical source diagnosed Plaintiff with this impairment and it causes functional limitations which impact Plaintiff's ability to perform basic work activities. See AR 547. For example, Plaintiff's lumbar radiculopathy limits her to a maximum sitting capacity of three-to-four hours, and a maximum standing/walking capacity of three-to-four hours, of ...


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