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Wentworth v. Berryhill

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

July 6, 2018

TWYLA WENTWORTH, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER ON PLAINTIFF'S COMPLAINT

          J. Richard Creatura, United States Magistrate Judge.

         This 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.

         After 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”).

         Similarly, 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.

         In 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.

         Accordingly, the Court orders that this matter be affirmed pursuant to sentence four of 42 U.S.C. § 405(g).

         BACKGROUND

         Plaintiff, 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.

         According to the ALJ, plaintiff has at least the severe impairments of “migraine headaches 20(CFR 404.1520(c)).” AR. 17.

         At the time of the hearing, plaintiff was living alone in a duplex. AR. 37.

         PROCEDURAL HISTORY

         Plaintiff's 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.

         In 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 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

         (1) Whether the ALJ erred in failing to identify plaintiff's depression and anxiety as severe and considering these impairments in the RFC.

         Plaintiff 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.

         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)).

         At Step 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.

         Plaintiff 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. ...


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