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Culbertson v. Berryhill

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

January 3, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Theresa L. Fricke United States Magistrate Judge

         June B. 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.

         I. BACKGROUND

         Ms. 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.[1] 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 testified.

         The ALJ 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.

         Ms. 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 proceedings.


         The 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.

         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 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).

         At 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.

         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 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. Id.


         At step 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.

         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); 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).

         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. 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 24-25.

         Ms. Culbertson further challenges how the ALJ considered her migraines in the RFC analysis. That argument is addressed below.


         The ALJ 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 capacity

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, ...

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