United States District Court, W.D. Washington, Seattle
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE.
seeks review of the denial of her applications for
Supplemental Security Income and Disability Insurance
Benefits. Plaintiff contends the administrative law judge
(“ALJ”) erred in (1) finding at step three that
she does not meet a listing, (2) discounting her subjective
testimony, and (3) assessing certain medical opinions. (Dkt.
# 14 at 2.) As discussed below, the Court AFFIRMS the
Commissioner's final decision and DISMISSES the case with
was born in 1964, graduated from high school and has some
college education, and has worked as a bartender, cashier,
shipping/receiving clerk, grocery store stocker, deli worker,
fruit sorter, prep cook, and cleaner. AR at 52, 207, 768-73.
At the time of the most recent administrative hearing,
Plaintiff had last been gainfully employed sometime in 2016.
Id. at 768-69.
2008, Plaintiff protectively applied for benefits, alleging
disability as of June 1, 2007. Id. at 68-69, 194-98.
Plaintiff's applications were denied initially and on
reconsideration, and Plaintiff requested a hearing.
Id. at 72-75, 79-85. After the ALJ conducted a
hearing on November 18, 2010 (id. at 30-67), the ALJ
issued a decision finding Plaintiff not disabled.
Id. at 15-25.
Appeals Council denied Plaintiff's request for review
(id. at 1-6), and the United States District Court
for the Eastern District of Washington granted the
parties' stipulation to reverse the ALJ's decision
and remand the case for further proceedings. Id. at
400-04. Plaintiff filed subsequent applications for benefits
in 2011, which were denied initially and upon
reconsideration, and, after a hearing (id. at
1006-26), the ALJ issued a decision dated February 7, 2013,
finding Plaintiff not disabled. Id. at 411, 527;
Supplemental AR (dkt. # 24) at 12-23, 136-51, 154-67, 230-39.
The Appeals Council consolidated the 2008 and 2011
applications, and remanded the matter for further proceedings
on the consolidated claims. AR at 411, 527, 838-39.
held another hearing, on October 14, 2014 (id. at
1027-51), and issued another decision denying Plaintiff's
claims. Id. at 806-19. Plaintiff sought judicial
review, and the United States District Court for the Eastern
District of Washington granted the parties' stipulation
to reverse the ALJ's decision and remand the case for
further proceedings. Id. at 825-29. The Appeals
Council remanded this matter to an ALJ, in accordance with
the court order. Id. at 847-49. An ALJ held another
hearing on September 27, 2017 (id. at 752-802), and
subsequently issued a decision again finding Plaintiff not
disabled. Id. at 710-29.
the five-step disability evaluation process,  the ALJ found:
Step one: Plaintiff worked since her alleged onset date, but
that work did not rise to the level of substantial gainful
Step two: Plaintiff's degenerative disk disease, status
post ganglion cyst on the right knee, affective disorder,
bilateral carpal tunnel syndrome status post release surgery
on the right, borderline intellectual functioning, anxiety
disorder, and substance addiction disorder are severe
Step three: These impairments do not meet or equal the
requirements of a listed impairment.
Residual Functional Capacity (“RFC”): Plaintiff
can perform light work, with additional limitations: she can
lift and/or carry 20 pounds occasionally and 10 pounds
frequently. She can sit, stand, and walk six hours each in an
eight-hour workday. She can frequently perform postural
movements, except only occasionally climb ladders, ropes, and
scaffolds, and occasionally stoop, kneel, crouch, and crawl.
She must avoid concentrated exposure to vibrations, and
hazards such as heights and dangerous moving machinery. She
can occasionally push/pull for operation of foot pedals
bilaterally with the lower extremities. She has sufficient
concentration, persistence, and pace to sustain simple,
routine tasks in two-hour increments with the usual and
customary breaks in an eight-hour workday. She can adapt to
simple workplace changes as may be required for simple,
routine task work. She can perform work activity that does
not require more than General Educational Development level
of two in reasoning, math, and language.
Step four: Plaintiff can perform past relevant work as an
agricultural produce sorter, and therefore she is not
Step five: In the alternative, because there are jobs that
exist in significant numbers in the national economy that
Plaintiff can perform, she is not disabled.
appealed the ALJ's decision of the Commissioner to this
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). As a general principle, an ALJ's error may be
deemed harmless where it is “inconsequential to the
ultimate nondisability determination.” Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (cited
sources omitted). The Court looks to “the record as a
whole to determine whether the error alters the outcome of
the case.” Id.
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.
The ALJ Did Not Err in Finding that Plaintiff Did Not Meet a
argues that because the evidence shows that she meets the
requirements of Listing 12.02, the ALJ's failure to
explicitly discuss this listing was harmful. (Dkt. # 14 at
three, the ALJ considers whether one or more of a
claimant's impairments meet or medically equal an
impairment listed in Appendix 1 to Subpart P of the
regulations. “The listings define impairments that
would prevent an adult, regardless of his age, education, or
work experience, from performing any gainful
activity, not just ‘substantial gainful
activity.'” Sullivan v. Zebley, 493 U.S.
521, 532 (1990) (emphasis in original; citations omitted).
bears the burden of proof at step three. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). A mere diagnosis
does not suffice to establish disability. Key v.
Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985).
“[An impairment] must also have the findings
shown in the Listing of that impairment.” Id.
at 1549-50 (quoting § 404.1525(d); emphasis added in
Key). To meet a listing, an impairment “must
meet all of the specified medical criteria.”
Sullivan, 493 U.S. at 530 (emphasis in original).
argues that she meets Listing 12.02 because she satisfies