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Mobbs v. Berryhill

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

December 29, 2017

VAWN MOBBS, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Vawn 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.

         I. BACKGROUND

         Ms. 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.[1]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.

         The ALJ 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, 416.1481.

         Ms. 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.


         The 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.

         The 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).

         The 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. Id.

         The 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. Id.


         At step 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.

         Ms. 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.

         An 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).

         The 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.

         The 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. 2012)).

         The 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.

         Ms. 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.

         At step 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.

         An 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).

         The ALJ 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).

         To 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.

         Listing 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).[2] 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 ...

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