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Weed v. Berryhill

United States District Court, W.D. Washington Tacoma

February 22, 2018

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


          David W. Christel United States Magistrate Judge.

         Plaintiff Carol Marie Weed filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her application for disability insurance benefits (“DIB”). 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. 2.

         After considering the record, the Court concludes Plaintiff has failed to show the Administrative Law Judge (“ALJ”) erred when he found Plaintiff did not have a severe mental impairment and was not disabled under Listing 1.04. Further, the ALJ gave a clear and convincing reason for discounting Plaintiff's subjective symptom testimony. Accordingly, the decision of the Acting Commissioner of Social Security (“Commissioner”) is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         On February 11, 2013, Plaintiff filed an application for DIB, alleging disability as of January 25, 2008. See Dkt. 7, Administrative Record (“AR”) 14. The application was denied upon initial administrative review and on reconsideration. See AR 14. A hearing was held before ALJ Gene Duncan and a decision denying benefits was issued on April 24, 2014. See AR 75-82, 87-133. Plaintiff appealed to the Appeals Council and, on September 18, 2015, the Appeals Council remanded the case to the ALJ. AR 69-70. In the remand order, the Appeals Council directed the ALJ to further evaluate whether Plaintiff could perform her past relevant work. See id. The Appeals Council also directed the ALJ to expand the record, if warranted, and offer Plaintiff an opportunity for a hearing. See id.

         Following the Appeals Council remand, the ALJ held a hearing on March 17, 2016. AR 29-66. In a decision dated April 11, 2016, the ALJ again found Plaintiff not disabled. AR 14-23. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's April 11, 2016 decision the final decision of the Commissioner. See AR 1-5, 20 C.F.R. § 404.981, § 416.1481.[1]

         In the Opening Brief, Plaintiff maintains the ALJ erred by failing to properly consider: (1) Plaintiff's mental impairments; (2) whether Plaintiff met Listing 1.04; and (3) Plaintiff's subjective symptom testimony. Dkt. 11, p. 2.


         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 by failing to find Plaintiff suffers from a severe mental impairment.

         In the Opening Brief, Plaintiff argues the ALJ erred when he failed to find Plaintiff suffers from mental impairments. Dkt. 11, pp. 6-7. While unclear, it appears Plaintiff is asserting the ALJ erred at Step Two of the sequential evaluation process when he found Plaintiff did not suffer from any severe mental impairment. See id.[2]

         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). Regarding mental impairments, the ALJ will consider four broad functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3).[3] If the ALJ rates the degree of a claimant's limitation “in the first three functional areas as ‘none' or ‘mild' and ‘none' in the fourth area, [the ALJ] will generally conclude that [the claimant's] impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities.” Id. at (d)(1). “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.'” Smolen, 80 F.3d at 1290 (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: sciatica, chronic pain syndrome, opioid dependence, and use of marijuana. AR 17. The ALJ did not find ...

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