United States District Court, W.D. Washington, Tacoma
JUNE B. CULBERTSON, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING DEFENDANT'S DECISION TO DENY
BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
Theresa L. Fricke United States Magistrate Judge
Culbertson 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 reverses the
Commissioner's decision denying benefits and remands for
further administrative proceedings.
Culbertson filed an application for a period of disability
and disability insurance benefits on December 11, 2015. Dkt.
8, Administrative Record (AR) 15. She alleged in her
application that she became disabled beginning December 31,
2009. Id. She later amended her alleged
onset date to October 15, 2013. Id. Her application
was denied on initial administrative review and on
reconsideration. Id. A hearing was held before an
administrative law judge (ALJ) on April 29, 2016. AR 40-74.
Ms. Culbertson and a vocational expert appeared and
found that Ms. Culbertson could perform jobs that exist in
significant numbers in the national economy, and therefore
that she was not disabled. AR 15-30 (ALJ decision dated
November 2, 2016). The Appeals Council denied Ms.
Culbertson's request for review on April 27, 2017, making
the ALJ's decision the final decision of the
Commissioner. AR 1. Ms. Culbertson appealed that decision in
a complaint filed with this Court on June 14, 2017. Dkt. 4;
20 C.F.R. § 404.981.
Culbertson seeks reversal of the ALJ's decision and
remand for further administrative proceedings including a new
hearing, arguing that the ALJ misapplied the law and lacked
substantial evidence for her decision. Ms. Culbertson
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 migraine headaches not to be a severe
impairment and for discounting Ms. Culbertson's
statements about the severity of various symptoms. For the
reasons set forth below, the undersigned concludes that the
ALJ did not properly apply the law at step five of the
disability analysis and substantial evidence does not support
her decision concerning Ms. Culbertson's testimony about
severity of symptoms. Consequently, the undersigned reverses
the decision to deny benefits and remands for further
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. § 404.1520. 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 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).
issue here is the ALJ's step two determination about
which of Ms. Culbertson's impairments qualify as
“severe, ” the ALJ's consideration of Ms.
Culbertson's statements in assessing her residual
functional capacity (RFC), and the ALJ's step five
finding that Ms. Culbertson can perform jobs existing in
significant numbers in the national economy.
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 upon which the ALJ did not
rely. 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 if an impairment is “severe.” 20 C.F.R.
§ 404.1520. In this case, the ALJ determined that Ms.
Culbertson had four severe impairments: Crohn's disease,
degenerative disc disease of the cervical spine, degenerative
joint disease and osteoarthritis of the ankles, and
degenerative joint disease and osteoarthritis of the knees.
AR 17. Ms. Culbertson contends that the ALJ erred in failing
to find her migraine headaches to also be a severe impairment
at step two.
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); 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); 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.
Culbertson's favor, the ALJ was required to consider
evidence of any and all impairments, severe or not, in
assessing Ms. Culbertson's RFC. See Buck, 869
F.3d at 1049. The ALJ's discussion indicates that she did
consider Ms. Culbertson's complaints of headaches and
their effects in assessing Ms. Culbertson's RFC. AR
Culbertson further challenges how the ALJ considered
her migraines in the RFC analysis. That argument is addressed
THE ALJ'S CONSIDERATION OF MS. CULBERTSON'S
found Ms. Culbertson's testimony on the severity of her
symptoms “not entirely consistent with the medical
evidence and other evidence in the record.” AR 22.
Based on this determination and her evaluation of the medical
opinion evidence-which Ms. Culbertson does not challenge-the
ALJ found that Ms. Culbertson has the residual functional
to perform sedentary work as defined in 20 CFR
404.1567(a). She can occasionally reach overhead. She can
occasionally balance, stoop, kneel, crouch, and crawl. She
can occasionally climb ramps or stairs but cannot climb
ladders, ropes, or scaffolds. The claimant should avoid
concentrated exposure to extreme cold, extreme heat,
vibration, fumes, odor, ...