United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S COMPLAINT
Richard Creatura, United States Magistrate Judge.
Court has jurisdiction pursuant to 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13
(see also Consent to Proceed before a United States
Magistrate Judge, Dkt. 2). This matter has been fully
briefed. See Dkts. 9, 10.
considering and reviewing the record, the Court concludes
that the Administrative Law Judge (“ALJ”) did not
commit harmful legal error during the evaluation of
plaintiff's Social Security claim. Although plaintiff
contends that the ALJ erred in failing to identify her
depression and anxiety as severe, plaintiff failed to show
that her depression and anxiety would impair her ability to
function under the limitations included the ALJ's
residual functional capacity (“RFC”).
although plaintiff argues that the ALJ erred when evaluating
the medical evidence, therapist Frances Jean Corn, MSW
(Masters in Social Work), did not opine that plaintiff's
symptoms translated into functional limitations or impacted
plaintiff's ability to maintain or obtain employment.
Thus, any error by the ALJ was harmless.
addition, there are inconsistencies and conflicts between
plaintiff's testimony at her hearing about her
limitations, and the statements and reports throughout the
medical record regarding her activities and abilities. These
reasons alone provide clear and convincing rationale
supported by substantial evidence in the record for the
ALJ's failure to credit fully plaintiff's
allegations. Therefore, although the ALJ erred in his
reliance on plaintiff's minimal mental health treatment
and plaintiff's unemployment history to support the
credibility determination, any such error is harmless.
the Court orders that this matter be affirmed pursuant to
sentence four of 42 U.S.C. § 405(g).
TWYLA WENTWORTH, was born in 1954 and was 58 years old on the
alleged date of disability onset of June 30, 2012.
See AR. 140-41. Plaintiff has a bachelor's
degree in Health Education. AR 37. Plaintiff has work history
as fiduciary at a trust organization. AR. 45. She left her
last employment following an unsuccessful three-month
probationary period. AR. 38-39.
to the ALJ, plaintiff has at least the severe impairments of
“migraine headaches 20(CFR 404.1520(c)).” AR. 17.
time of the hearing, plaintiff was living alone in a duplex.
application for disability insurance benefits
(“DIB”) pursuant to 42 U.S.C. § 423 (Title
II) of the Social Security Act was denied initially and
following reconsideration. See AR. 49, 58.
Plaintiff's requested hearing was held before ALJ Gary
Elliott on April 21, 2016. See AR. 32-48. On May 9,
2016, the ALJ issued a written decision in which the ALJ
concluded that plaintiff was not disabled pursuant to the
Social Security Act. See AR. 12-31.
plaintiff's Opening Brief, plaintiff raises the following
issues: (1) the ALJ erred in failing to identify
plaintiff's depression and anxiety as severe; (2) the RFC
is flawed for failing to consider all of plaintiff's
impairments; (3) the ALJ erred in evaluating plaintiff's
subjective symptom testimony by relying on plaintiff's
unsuccessful work attempt; and (4) the ALJ erred in
evaluating the opinion evidence specifically by giving great
weight to the opinion of a one-time examiner and little
weight to that of a treating provider. See Dkt. 9 at
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 in failing to identify plaintiff's
depression and anxiety as severe and considering these
impairments in the RFC.
first argues that the ALJ erred by failing to find her
depression and anxiety a severe impairment at Step Two and
that the RFC is flawed for failing to consider all of
plaintiff's impairments. Dkt. 9 at 4-7.
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)).
Two, the ALJ found that plaintiff has one severe impairment
--migraine headaches. AR. 17. The ALJ found that
plaintiff's “medically determinable mental
impairments of depression, anxiety and alcohol dependence,
considered singly and in combination do not cause more than
minimal limitation in the claimant's ability to perform
basic mental work activities and are therefore
nonsevere.” AR. 17. In making this determination, the
ALJ identified that plaintiff had mild limitations in
activities of daily living, social functioning,
concentration, persistence and pace, and with no episodes of
decompensation. AR. 17-18.
argues that this finding is contrary to plaintiff being
diagnosed with anxiety, depression, memory loss, amnesia,
restlessness, difficulty controlling worry, irritability,
sleep disturbance and difficulty concentrating. Dkt. 9 at 5
(citing AR. 263, 280, 309, 319, 595, 662). It is true that
Dr. Jennifer Smith, M.D., an acceptable medical source,
diagnosed plaintiff with depression and generalized anxiety
disorder. AR. 321, 595. Ms. Christie Heany, PA-C diagnosed
plaintiff with memory loss and amnesia, AR. ...