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Cope v. Berryhill

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

December 13, 2017

RYAN S. COPE, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff Ryan S. Cope 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. 6.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in his treatment of Plaintiff's testimony and the lay witness testimony. 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.


         On October 11, 2013, Plaintiff filed an application for DIB and SSI. See Dkt. 9, Administrative Record (“AR”) 23. The application was denied upon initial administrative review and on reconsideration. See AR 23. ALJ James W. Sherry held a hearing on June 9, 2015. AR 42-69. At the hearing, Plaintiff amended his alleged disability onset date to June 1, 2013. AR 45. In a decision dated August 28, 2015, the ALJ determined Plaintiff to be not disabled. AR 23-34. 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: (1) by failing to explain why Plaintiff's combination of impairments did not meet or medically equal Listing 11.09; (2) in his treatment of the medical evidence; (3) by not giving clear and convincing reasons for finding Plaintiff's subjective symptom testimony not fully supported; (4) by failing to provide germane reasons to reject lay witness testimony; and (5) by making an RFC determination and Step Four findings that were not supported by substantial evidence. Dkt. 13, pp. 2-18.


         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)).


         I.Whether the ALJ properly determined Plaintiff's combination of impairments did not meet or equal Listing 11.09.

         Plaintiff argues the ALJ improperly concluded Plaintiff's multiple sclerosis did not meet or medically equal Listing 11.09(A) or 11.09(C). Dkt, 13, pp. 7, 17.

         At Step Three of the sequential evaluation process, the ALJ considers whether one or more of the claimant's impairments meets or equals an impairment listed in Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each Listing sets forth the “symptoms, signs, and laboratory findings” which must be established in order for a claimant's impairment to meet the Listing. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (citation omitted). If a claimant meets or equals a Listing, the claimant is considered disabled without further inquiry. See 20 C.F.R. § 416.920(d).

         The burden of proof is on the claimant to establish that he meets or equals any of the impairments in the Listings. See Tackett, 180 F.3d at 1098. “A generalized assertion of functional problems, ” however, “is not enough to establish disability at step three.” Id. at 1100 (citing 20 C.F.R. § 404.1526). A mental or physical impairment “must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508 (effective through March 26, 2017). It must be established by medical evidence “consisting of signs, symptoms, and laboratory findings.” Id.; see also Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 (1996) (a Step Three determination must be made on basis of medical factors alone). An impairment meets a listed impairment “only when it manifests the specific findings described in the set of medical criteria for that listed impairment.” SSR 83-19, 1983 WL 31248, at *2 (1983). The ALJ “is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).

         Listing 11.09[1] states that a claimant's multiple sclerosis impairment meets or equals the listing when a claimant has:

A. Disorganization of motor function as described in 11.04B; or
B. Visual or mental impairment as described under the criteria in 2.02, 2.03, 2.04, or 12.02; or
C. Significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process.

20 C.F.R., Part 404, Subpt. P, App. 1, § 11.09 (effective Aug. 12, 2015 - May 23, 2016).

         Plaintiff specifically asserts the medical evidence shows his symptoms and limitations meet or equal Listing 11.09(A) or 11.09(C). Dkt. 13, pp. 7, 17. In order to meet Listing 11.09(A), the following criteria must be met or medically equaled:

Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which may be due to cerebral, cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction) which occur singly or in various combinations, frequently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms.

20 C.F.R., Part 404, Subpt. P, App. 1, § 11.04(B) (effective Aug. 12, 2015 - May 23, 2016) (citing § 11.00(C)).

         Listing 11.09(C) “deals with motor abnormalities which occur on activity.” Id. at § 11.00(E). Further, Listing 11.09(C):

is dependent upon (1) documenting a diagnosis of multiple sclerosis, (2) obtaining a description of fatigue considered to be characteristic of multiple sclerosis, and (3) obtaining evidence that the system has actually become fatigued. The evaluation of the magnitude of the impairment must consider the degree of exercise and the severity of the resulting muscle weakness.

Id. at § 11.00(E).

         At Step Two, the ALJ found Plaintiff's multiple sclerosis was a severe impairment. AR 25. At Step Three, the ALJ determined Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.” AR 27. In relevant part, the ALJ found:

The undersigned has considered all of the claimant's impairments individually and in combination but can find no evidence that the combined clinical findings from such impairments reach the level of severity contemplated in the listings . . . [Plaintiff's] multiple sclerosis does not meet or equal listing 11.09, Multiple Sclerosis, because the record does not demonstrate findings of: A. Disorganization of motion function; B. Visual or mental impairment; or C. Significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical ...

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