United States District Court, W.D. Washington Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
W. Christel United States Magistrate Judge.
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.
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. §
AND PROCEDURAL HISTORY
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
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, §
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.
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 erred at Step Two by failing to find
Plaintiff suffers from a severe mental
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.
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). 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
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