United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
S. LASNIK, UNITED STATES DISTRICT JUDGE
Kelli Thompson appeals the final decision of the Commissioner
of the Social Security Administration
(“Commissioner”), which denied her application
for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles
II and XVI of the Social Security Act (the
“Act”), 42 U.S.C. §§401-33 and
1381-83f, after a hearing before an administrative law judge
(“ALJ”). For the reasons set forth below the
Commissioner's decision is AFFIRMED.
FACTS AND PROCEDURAL HISTORY
is a 53-year-old woman with a bachelor's degree.
Administrative Record (“AR”) at 39, 50. Her past
work experience was as a nurse. AR at 39. Plaintiff has not
engaged in substantial gainful activity since December 31,
2005. AR at 27.
protectively filed an application for DIB on August 8, 2013,
and for SSI on December 13, 2013. AR at 110-11. Plaintiff
asserted that she was disabled due to arthritis, depression,
post traumatic stress disorder (“PTSD”), and high
blood pressure. AR at 112, 127.
Commissioner denied plaintiff's claims initially and on
reconsideration. AR at 125, 140, 157, 167. Plaintiff
requested a hearing, which took place on December 17, 2015.
AR at 48. On March 1, 2016, the ALJ issued a
decision finding that plaintiff was not disabled based on his
finding that plaintiff could perform work available in
significant numbers in the national economy. AR at 39-41.
Plaintiff's request for review by the Appeals Council was
denied on July 14, 2017, AR at 10, making the ALJ's
ruling the “final decision” of the Commissioner
as that term is defined by 42 U.S.C. §405(g). On
September 7, 2017, plaintiff filed a request for an extension
of time to file a civil action in federal court. AR at 3. The
record does not indicate a response from the Commissioner. On
September 19, 2017, plaintiff filed the present action
challenging the Commissioner's decision. Dkt. 3.
STANDARD OF REVIEW
to 42 U.S.C. §405(g), this Court may set aside the
Commissioner's denial of social security benefits when
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 (9th Cir.
2005). “Substantial evidence” is more than a
scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. Richardson v. Perales, 402
U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d
747, 750 (9th Cir. 1989). The ALJ is responsible for
determining credibility, resolving conflicts in medical
testimony, and resolving any other ambiguities that might
exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995). While the Court is required to examine the record
as a whole, it may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002). When the evidence is susceptible to more than one
rational interpretation, it is the Commissioner's
conclusion that must be upheld. Id.
claimant, Ms. Thompson bears the burden of proving that she
is disabled within the meaning of the Act. Meanel v.
Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The Act
defines disability as the “inability to engage in any
substantial gainful activity” due to a physical or
mental impairment that has lasted, or is expected to last,
for a continuous period of not less than 12 months. 42 U.S.C.
§§423(d)(1)(A), 1382c(a)(3)(A). A claimant is
disabled under the Act only if her impairments are of such
severity that she is unable to do her previous work, and
cannot, considering her age, education, and work experience,
engage in any other substantial gainful activity existing in
the national economy. 42 U.S.C. §423(d)(2)(A); see
also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir.
Commissioner has established a five-step sequential
evaluation process for determining whether a claimant is
disabled within the meaning of the Act. See 20
C.F.R. §§404.1520, 416.920. The claimant bears the
burden of proof during steps one through four. At step five,
the burden shifts to the Commissioner. Id. If a
claimant is found to be disabled at any step in the sequence,
the inquiry ends without the need to consider subsequent
steps. Step one asks whether the claimant is presently
engaged in “substantial gainful activity.” 20
C.F.R. §§404.1520(b), 416.920(b). If she is,
disability benefits are denied. If she is not, the
Commissioner proceeds to step two. Id. At step two,
the claimant must establish that she has one or more
medically severe impairments, or combination of impairments,
that limit her physical or mental ability to do basic work
activities. 20 C.F.R. §§404.1520(c), 416.920(c). If
the claimant does not have such impairments, she is not
disabled. Id. If the claimant does have a severe
impairment, the Commissioner moves to step three to determine
whether the impairment meets or equals any of the listed
impairments described in the regulations. 20 C.F.R.
§§404.1520(d), 416.920(d). A claimant whose
impairment meets or equals one of the listings for the
required 12-month duration is disabled. Id.
the claimant's impairment neither meets nor equals one of
the impairments listed in the regulations, the Commissioner
must proceed to step four and evaluate the claimant's
residual functional capacity (“RFC”). 20 C.F.R.
§§404.1520(e), 416.920(e). Here, the Commissioner
evaluates the physical and mental demands of the
claimant's past relevant work to determine whether she
can still perform that work. 20 C.F.R.
§§404.1520(f), 416.920(f). If the claimant is able
to perform her past relevant work, she is not disabled; if
the opposite is true, then the burden shifts to the
Commissioner at step five to show that the claimant can
perform other work that exists in significant numbers in the
national economy, taking into consideration the
claimant's RFC, age, education, and work experience. 20
C.F.R. §§404.1520(g), 416.920(g); Tackett,
180 F.3d at 1099-1100. If the Commissioner finds the claimant
is unable to perform other work, then the claimant is found
disabled and benefits may be awarded.
March 1, 2016, the ALJ issued a decision finding the
1. The claimant has not engaged in substantial gainful
activity since December 31, 2005, the alleged disability
onset date (20 C.F.R. §§404.1571 et seq.,
and 416.971 et seq.).
2. The claimant has the following severe impairments:
osteoarthritis, hypertension, anxiety disorder, affective
disorder, and substance use disorder (20 C.F.R.
§§404.1520(c) and 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§404.1520(d),
404.1525(d), 404.1526, 416.920(d), 416.925, and 416.926).
4. The claimant has the RFC to perform medium work as defined
in 20 C.F.R. §404.1567(c) and 416.967(c) except she can
frequently handle bilaterally and frequently reach overhead.
She is capable of unskilled, simple, and routine work tasks,
as well as familiar routine complex tasks. She can have
frequent contact with five or fewer coworkers. She can have
superficial contact with the general public. She can have
occasional changes in her workplace, with a day's notice
for material changes. Over the course of an eight-hour
workday, she will be off-task up to ten percent of her work
5. The claimant is unable to perform any past relevant work
(20 C.F.R. §§404.1565 and 416.965).
6. Considering the claimant's age, education, and work
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 C.F.R. §§404.1569, 404.1569(a), 416.969 and
7. The claimant has not been under a disability, as defined
in the Act, from December 31, 2005, through the date of the
ALJ's decision (20 C.F.R. §§404.1520(g) and
AR at 25-41.
ISSUES ON APPEAL
issues on appeal are:
A. Whether the ALJ erred at step two in failing to find that
plaintiff's fibromyalgia was a severe impairment.
B. Whether the ALJ erred in weighing plaintiff's
C. Whether the ALJ erred in weighing the medical opinions.