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Wentz v. Berryhill

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

February 14, 2018

NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff April Marie Wentz, proceeding pro se, filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her applications for disability insurance benefits (“DIB”) and 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. 8.

         After considering the record, the Court concludes Plaintiff failed to show the Administrative Law Judge (“ALJ”) erred when she found Plaintiff had no physical impairments at Step Two of the sequential evaluation process. The Court, however, finds the ALJ erred when she failed to provide specific, legitimate reasons supported by substantial evidence for giving little weight to the opinion of Dr. Dana Harmon, Ph.D. Had the ALJ given great weight to Dr. Harmon's opinion, the residual functional capacity (“RFC”) may have included additional limitations or the ALJ may have found Plaintiff disabled. The ALJ's error is therefore harmful, 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.


         On June 20, 2013, Plaintiff filed applications for DIB and SSI, alleging disability as of January 8, 2012. See Dkt. 10, Administrative Record (“AR”) 27. The application was denied upon initial administrative review and on reconsideration. See AR 27. A hearing was held before ALJ Laura Valente on October 1, 2015. See AR 59-117. In a decision dated December 22, 2015, the ALJ determined Plaintiff to be not disabled. AR 27-38. 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 8-13, 20 C.F.R. § 404.981, § 416.1481.

         In the Opening Brief, it appears Plaintiff is arguing the ALJ erred by: (1) failing to consider Plaintiff's severe impairments at Step Two; (2) discounting Plaintiff's activities of daily living when considering her subjective symptom testimony; (3) improperly considering Dr. Dana Harmon's opinion; (4) improperly discounting the lay opinions; and (5) improperly relying on the vocational expert's testimony. Dkt. 16. Plaintiff also contends the ALJ failed to consider the opinion of “Dr. Yun, Ph.D.” and asserts she has attached a copy of the opinion for the Court's consideration. Id.[1]


         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)).


         I. Whether the ALJ erred at Step Two.

         In the Opening Brief, Plaintiff states she suffers from “several serious physical conditions, ” including methicillin-resistant staphylococcus aureus (“MRSA”) and polycystic ovary syndrome (“PCOS”). Dkt. 16, p. 4. It appears Plaintiff is alleging the ALJ erred by failing to find her MRSA and PCOS disabling impairments at Step Two of the sequential evaluation process.

         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)).

         Here, the ALJ found Plaintiff suffered from the following severe impairments: organic mental disorder, affective disorder, and anxiety disorder. AR 30. The ALJ did not find Plaintiff had any severe physical impairments. See AR 30.

         Plaintiff states she suffers from MRSA and PCOS. Dkt. 16, p. 4. However, in her Opening Brief, Plaintiff fails to provide record citations showing she has been diagnosed with MRSA and PCOS or allege these two conditions cause significant limitations in her ability to perform basic work activities. See id. As Plaintiff failed to explain how these impairments are severe or cite to any evidence supporting her assertion, the Court finds Plaintiff has not shown the ALJ erred at Step Two. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (finding the plaintiff has the burden of demonstrating there are harmful errors in the ALJ's decision).

         II. Whether the ALJ improperly discounted the opinion ...

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