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Berg v. Berryhill

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

February 7, 2018

JULIE BERG, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge.

         Plaintiff 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.

         After 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

         FACTUAL AND PROCEDURAL HISTORY

         On May 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, § 416.1481.

         In 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.

         STANDARD OF REVIEW

         Pursuant 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 Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ properly considered all of Plaintiff's severe impairments at Step Two.

         Plaintiff argues the ALJ erred by failing to find Plaintiff's migraines[1] were a severe impairment at Step Two of the sequential evaluation process. Dkt. 10, pp. 2-4.

         Step 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)).

         A. Severe Impairment

         At Step 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 ...


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