United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. Christel United States Magistrate Judge.
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”).
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.
AND PROCEDURAL HISTORY
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. 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.
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.
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 properly assessed all of Plaintiff's
severe impairments at Step Two of the
sequential evaluation process.
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.
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)).
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.
Heilbrunn, an acceptable medical source, evaluated Plaintiff
and diagnosed her with lumbar left
radiculopathy. 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).
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”).
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,