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Thompson v. Berryhill

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

June 22, 2018

NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.



         Plaintiff 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.


         Plaintiff 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.

         Plaintiff 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.

         The 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.[1] 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.


         Pursuant 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.


         As the 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. 1999).

         The 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).[2] 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.

         When 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.


         On March 1, 2016, the ALJ issued a decision finding the following:

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 tasks.
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 416.969(a)).
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 416.920(g)).

AR at 25-41.


         The 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 allegations.
C. Whether the ALJ erred in weighing the medical opinions. ...

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