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Ashby v. Berryhill

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

April 10, 2018

DOUGLAS JAMES ASHBY Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER

          David W. Christel United States Magistrate Judge.

         Plaintiff Douglas James Ashby, proceeding pro se, filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of his 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. 9.

         After considering the record, the Court concludes Plaintiff has failed to show the Administrative Law Judge (“ALJ”) erred in determining: (1) Plaintiff's severe impairments at Step Two; (2) Plaintiff did not meet or equal a Listing at Step Three; and (3) Plaintiff's residual functional capacity (“RFC”). Accordingly, the decision of the Deputy Commissioner of Social Security for Operations (“Commissioner”) is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).

         FACTUAL AND PROCEDURAL HISTORY

         On March 31, 2016, Plaintiff filed an application for DIB, alleging disability as of October 1, 2015. See Dkt. 11, Administrative Record (“AR”) 15. The application was denied on initial administrative review and on reconsideration. See AR 15. A hearing was held before ALJ S. Andrew Grace on November 10, 2016. See AR 37-67. On April 21, 2017, the ALJ held a supplemental hearing. AR 68-103. In a decision dated June 15, 2017, the ALJ determined Plaintiff to be not disabled. AR 15-28. 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 1-6, 20 C.F.R. § 404.981, § 416.1481.

         In the Opening Brief, the Court finds Plaintiff is arguing the ALJ erred by: (1) failing to find all Plaintiff's impairments severe at Step Two; (2) failing to properly consider Plaintiff's combination of impairments at Step Three; and (3) improperly assessing Plaintiff's RFC. Dkt. 14.[1], [2]

         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 erred at Step Two.

         In the Opening Brief, Plaintiff states he suffers from emphysema, diabetes, Charcot-Marie-Tooth, sleep apnea, arthritis, and depression. Dkt. 14. The Court finds Plaintiff is alleging the ALJ erred by failing to find some of his diagnoses to be severe 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: diabetes mellitus[3], Charcot-Marie-Tooth, obesity status post gastric bypass surgery, chronic obstructive pulmonary disease (“COPD”), sleep apnea, chronic pain syndrome, neuropathy, mild asthma, persistent depressive disorder, and social anxiety disorder. AR 17.

         Plaintiff states he suffers from emphysema, diabetes, Charcot-Marie-Tooth, sleep apnea, arthritis, and depression. Dkt. 14, p. 1. The ALJ found Plaintiff's diabetes, Charcot-Marie-Tooth, sleep apnea, and depression were severe impairments. AR 17. Plaintiff contends he also suffers from emphysema and arthritis, which the ALJ did not find to be severe impairments. See Dkt.14; AR 17. However, Plaintiff fails to provide record citations showing he has been diagnosed with emphysema or arthritis and fails to allege these two conditions cause significant limitations in his ability to perform basic work activities. See Dkt. 14. Plaintiff does state his emphysema contributes to his mobility issues. Id. at p. 2. He also states his arthritis causes his joints to be even stiffer. Id. However, he does not cite to the record to support these assertions or explain how his mobility issues and stiffer joints limit his ability to perform basic work activities. See id. Furthermore, at the ALJ hearing, Plaintiff's representative did not assert Plaintiff has been diagnosed with or is disabled because of emphysema or arthritis. See AR 40. As Plaintiff failed to explain how his emphysema ...


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