United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE.
Mobbs has brought this matter for judicial review of
defendant's denial of her application for disability
insurance and supplemental security income (SSI) benefits.
The parties have consented to have this matter heard by the
undersigned Magistrate Judge. 28 U.S.C. § 636(c),
Federal Rule of Civil Procedure 73; Local Rule MJR 13. For
the reasons set forth below, the Court affirms the
Commissioner's decision denying benefits.
Mobbs filed an application for SSI benefits and another one
for a period of disability and disability insurance benefits,
both on October 1, 2012. Dkt. 9, Administrative Record (AR)
25. She alleged in both applications that she became disabled
beginning September 30, 2011.AR 25. That application was denied
on initial administrative review and on reconsideration. AR
25. A hearing was held before an administrative law judge
(ALJ) on June 22, 2015. AR 48-83. Ms. Mobbs and a vocational
expert appeared and testified.
found that Ms. Mobbs could perform jobs that exist in
significant numbers in the national economy, and therefore
that she was not disabled. AR 25-42 (ALJ decision dated July
27, 2015). The Appeals Council denied Ms. Mobbs's request
for review on March 17, 2017, making the ALJ's decision
the final decision of the Commissioner. AR 1. Ms. Mobbs
appealed that decision in a complaint filed with this Court
on December 14, 2016. Dkt. 3; 20 C.F.R. §§ 404.981,
Mobbs seeks reversal of the ALJ's decision and remand for
an award of benefits, or in the alternative for further
administrative proceedings, arguing that the ALJ misapplied
the law and lacked substantial evidence for her decision. Ms.
Mobbs contends that the ALJ erred at steps two and five of
the five-step criteria. The alleged errors concern the
ALJ's reasons for finding psychogenic non-epileptic
seizures not to be a severe impairment, for discounting Ms.
Mobbs's statements about the severity of her symptoms,
and for rejecting certain medical opinion evidence. For the
reasons set forth below, the undersigned concludes that the
ALJ properly applied the law and substantial evidence
supports her decision. Consequently, the undersigned affirms
the decision to deny benefits.
STANDARD OF REVIEW AND SCOPE OF REVIEW
Commissioner employs a five-step “sequential evaluation
process” to determine whether a claimant is disabled.
20 C.F.R. §§ 404.520, 416.920. If the ALJ finds the
claimant disabled or not disabled at any particular step, the
ALJ makes the disability determination at that step and the
sequential evaluation process ends. See id.
five steps are a set of criteria by which the ALJ considers:
(1) Does the claimant presently work in substantial gainful
activity? (2) Is the claimant's impairment (or
combination of impairments) severe? (3) Does the
claimant's impairment (or combination) equal or meet an
impairment that is listed in the regulations? (4) Does the
claimant have residual functional capacity (RFC), and if so,
does this RFC show that the complainant would be able to
perform relevant work that he or she has done in the past?
And (5) if the claimant cannot perform previous work, are
there significant numbers of jobs that exist in the national
economy that the complainant nevertheless would be able to
perform in the future? Keyser v. Comm'r of Soc. Sec.
Admin., 648 F.3d 721, 724-25 (9th Cir. 2011).
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error; or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a
mere scintilla, '” though “‘less than a
preponderance'” of the evidence. Id.
(quoting Desrosiers, 846 F.2d at 576). If more than
one rational interpretation can be drawn from the evidence,
then the Court must uphold the ALJ's interpretation.
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The Court may not affirm by locating a quantum of supporting
evidence and ignoring the non-supporting evidence.
Court must consider the administrative record as a whole.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). The Court is required to weigh both the evidence that
supports, and evidence that does not support, the ALJ's
conclusion. Id. The Court may not affirm the
decision of the ALJ for a reason the ALJ did not rely on.
Id. Only the reasons identified by the ALJ are
considered in the scope of the Court's review.
THE ALJ'S STEP TWO DETERMINATION
two of the sequential evaluation process, the ALJ must
determine whether an impairment is “severe.” 20
C.F.R. §§ 404.1520, 416.920. In this case, the ALJ
determined that Ms. Mobbs had five severe impairments: right
shoulder tendonitis and degenerative joint disease,
degenerative disc disease, obesity, affective disorder, and
anxiety disorder. AR 27.
Mobbs contends that the ALJ erred in failing to find
psychogenic non-epileptic seizures, or “pseudoseizures,
” to be a severe impairment at step two. She contends
that the ALJ ignored medical records and lay testimony
indicating that she suffers debilitating seizures. She also
contends that the ALJ erred in relying on the opinion of a
physician, Dr. R. Richard Sloop, who cast doubt on Ms.
Mobbs's accounts of seizures and representations of her
symptoms. See AR 504-06.
impairment is “not severe” if it does not
“significantly limit” a claimant's mental or
physical abilities to do basic work activities. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Social
Security Ruling (SSR) 96-3p, 1996 WL 374181, at *1. Basic
work activities are those “abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§
404.1521(b), 416.921(b); SSR 85-28, 1985 WL 56856, at *3. An
impairment is not severe if the evidence establishes only a
slight abnormality that has “no more than a minimal
effect on an individual[']s ability to work.” SSR
85-28, 1985 WL 56856, at *3; Smolen v. Chater, 80
F.3d 1273, 1290 (9th Cir. 1996); Yuckert v. Bowen,
841 F.2d 303, 306 (9th Cir. 1988).
step two inquiry is a de minimis screening device
used to dispose of groundless claims. Smolen, 80
F.3d at 1290. The Ninth Circuit recently emphasized that this
inquiry “is not meant to identify the impairments that
should be taken into account when determining the RFC.”
Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir.
2017) (rejecting claim that ALJ erred after second hearing,
where ALJ found new severe impairments but did not change
RFC). The court noted that an ALJ assessing a claimant's
RFC before steps four and five “must consider
limitations and restrictions imposed by all of an
individual's impairments, even those that are not
‘severe.'” Buck, 869 F.3d at 1049
(citing Titles II & XVI: Assessing Residual Functional
Capacity in Initial Claims, Social Security Ruling
(“SSR”) 96-8p, 1996 WL 374184, at *5 (S.S.A. July
2, 1996)). Thus, the RFC “should be exactly the same
regardless of whether certain impairments are considered
‘severe' or not” at step two. Buck,
869 F.3d at 1049.
Ninth Circuit concluded, in the case before it, that because
the ALJ decided step two in the claimant's favor and was
required to consider all impairments in the RFC, whether
“severe” or not, “[a]ny alleged error is
therefore harmless and cannot be the basis for a
remand.” Buck, 869 F.3d at 1049 (citing
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
same is true here. Because the ALJ decided step two in Ms.
Mobbs's favor, the ALJ was required to consider evidence
of any and all impairments, severe or not, in assessing Ms.
Mobbs's RFC. See Buck, 869 F.3d at 1049. And
despite finding Ms. Mobbs's psychogenic seizures to be
non-severe, the ALJ still considered Ms. Mobbs's
complaints of seizures and their effects together with the
impairments the ALJ did find to be severe. AR 28.
Mobbs contends that the ALJ made a harmful error at step two
because the ALJ did not consider whether Ms. Mobbs's
psychogenic seizures were “medically equivalent”
to the listing for convulsive epilepsy under the Social
Security Administration regulations. See 20 C.F.R.
Part 404, Subpt. P, App. 1, Listing 11.00(A), 11.02.
three of the sequential evaluation process, the ALJ evaluates
the claimant's impairments to see if they meet or
medically equal any of the impairments listed in 20 C.F. R.
Part 404, Subpart P, Appendix 1. 20 C.F.R §§
404.1520(d), 416.920(d); Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999). If any of the claimant's
impairments meet or medically equal a listed impairment, he
or she is deemed disabled. Id. The burden of proof
is on the claimant to establish he or she meets or equals any
of the impairments in the listings. Tackett, 180
F.3d at 1098. A mental or physical impairment must be
established by medical evidence “consisting of signs,
symptoms, and laboratory findings.” 20 C.F.R. §
404.1508, § 416.908; see also SSR 96-8p, 1996
WL 374184, at *2.
impairment, or combination of impairments, equals a listed
impairment “only if the medical findings (defined as a
set of symptoms, signs, and laboratory findings) are at least
equivalent in severity to the set of medical findings for the
listed impairment.” SSR 83-19, 1983 WL 31248, at *2.
“[S]ymptoms alone” will not justify a finding of
equivalence. Id. The ALJ is not required to compare
a claimant's unlisted impairments to a listing
“unless the claimant presents evidence in an effort to
establish equivalence.” Burch v. Barnhart, 400
F.3d 676, 683 (9th Cir. 2005).
need not “state why a claimant failed to satisfy every
different section of the listing of impairments.”
Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.
1990). This is particularly true where the claimant has
failed to set forth any reasons as to why the listing
criteria have been met or equaled. Lewis v. Apfel,
236 F.3d 503, 514 (9th Cir. 2001) (finding ALJ's failure
to discuss combined effect of claimant's impairments was
not error, noting claimant offered no theory as to how, or
point to any evidence to show, his impairments combined to
equal a listed impairment).
fully satisfy Listing 11.02, a plaintiff must establish that
she meets the following criteria:
convulsive epilepsy (grand mal or psychomotor), documented by
detailed description of a typical seizure pattern, including
all associated phenomena; occurring more frequently than once
a month in spite of at least 3 months of prescribed treatment
[, ][w]ith [one of the following]: [d]aytime episodes (loss
of consciousness and convulsive seizures) or nocturnal
episodes manifesting residuals which interfere significantly
with activity during the day.
20 C.F.R. Part 404, Subpart P, Appendix 1.
11.02 also requires “[a]t least one detailed
description of a typical seizure, ” including
“the presence or absence of aura, tongue bites,
sphincter control, injuries associated with the attack, and
postictal phenomena.” 20 C.F.R. Part 404, Subpt. P,
App. 1, Listing 11.00(A) (12/15/04 to
09/28/16). A reporting physician “should
indicate the extent to which description of seizures reflects
his own observations and the source of ancillary
information.” Id. And “if professional
observation is not ...