United States District Court, W.D. Washington, Tacoma
W. Christel United States Magistrate Judge.
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.
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. §
AND PROCEDURAL HISTORY
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.
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.
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.
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
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”
the ALJ found Plaintiff suffered from the following severe
impairments: diabetes mellitus, 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.
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 ...