United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge.
Julie Berg 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”). 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. 5.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred by failing
to find Plaintiff's migraines were a severe impairment at
Step Two of the sequential evaluation process. Had the ALJ
properly considered Plaintiff's migraines at Step Two,
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
AND PROCEDURAL HISTORY
1, 2014, Plaintiff filed an application for SSI, alleging
disability as of July 10, 2010. See Dkt. 8,
Administrative Record (“AR”) 20. The application
was denied upon initial administrative review and on
reconsideration. See AR 20. ALJ Robert P. Kingsley
held a hearing on November 12, 2015. AR 37-61. In a decision
dated February 3, 2016, ALJ Kingsley determined Plaintiff to
be not disabled. AR 20-29. 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 1-3; 20 C.F.R. § 404.981,
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred by: (1) failing to find Plaintiff's migraines were
a severe impairment at Step Two; (2) not discussing opinion
evidence from Plaintiff's treating physician, Dr.
Kimberly Herner, M.D.; and (3) failing to provide specific,
clear and convincing reasons for discounting Plaintiff's
subjective symptom testimony. Dkt. 10, pp. 1-9.
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
Whether the ALJ properly considered all of Plaintiff's
severe impairments at Step Two.
argues the ALJ erred by failing to find Plaintiff's
migraines were a severe impairment at Step Two of
the sequential evaluation process. Dkt. 10, pp. 2-4.
Two of the administration's evaluation process requires
the ALJ to determine whether the claimant “has a
medically severe impairment or combination of
impairments.” Smolen v. Chater, 80 F.3d 1273,
1290 (9th Cir. 1996) (citation omitted); 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (1996). An
impairment is “not severe” if it does not
“significantly limit” the ability to conduct
basic work activities. 20 C.F.R. §§ 404.1521(a),
416.921(a). “Basic work activities are ‘abilities
and aptitudes necessary to do most jobs, including, for
example, walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying or handling.'”
Smolen, 80 F.3d at 1290 (quoting 20 C.F.R. §
140.1521(b)). An impairment or combination of impairments
“can be found ‘not severe' only if the
evidence establishes a slight abnormality having ‘no
more than a minimal effect on an individual[']s ability
to work.'” Id. (quoting Yuckert v.
Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting
Social Security Ruling “SSR” 85-28)).
Two, the ALJ found Plaintiff has the following severe
impairments: “adjustment disorder, posttraumatic stress
disorder (PTSD), and bulimia nervosa.” AR 22 (citation
omitted). The ALJ also considered whether Plaintiff's
acute renal failure, acute cardiopulmonary distress,
hypokalemia, hypotension, leukocytosis, hypercalcemia,
hyponatremia, and anemia were severe at Step Two. AR 22.
While the ALJ found these impairments “non-severe,
” he stated that he ...