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Tammy S. v. Commissioner of Social Security

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

May 31, 2019

TAMMY S., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION AND DISMISSING WITH PREJUDICE

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals the denial of her application for Supplemental Security Income. She contends the ALJ erred by (1) failing at step two of the sequential analysis to list rheumatoid arthritis and fibromyalgia as severe impairments; (2) discounting plaintiff's symptom testimony; and (3) discounting the lay witness statements by plaintiff's mother and plaintiff's daughter. Dkt. 14, at 1-2. The Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.

         BACKGROUND

         Plaintiff is currently 47 years old, has a high-school education, and has worked as a demonstrator, cashier, and kitchen helper. In 2015, she applied for SSI benefits, eventually amending her alleged onset day of disability to April 1, 2015. After her application was denied initially and on reconsideration, the ALJ conducted a hearing in December 2016. Tr. 63-109.

         In an October 2017 decision, the ALJ determined at step one of the five-step evaluation process that plaintiff had not engaged in substantial gainful activity since the alleged onset date, and at step two that plaintiff had five severe impairments: degenerative joint disease of the left knee, obesity, anxiety disorder, depressive disorder, and gastrointestinal symptoms disorder. Tr. 19. After determining at step three that those impairments did not meet or equal the requirements of a listed impairment, the ALJ assessed a residual functional capacity (“RFC”) of light work with physical, mental, and social limitations. Tr. 22-23. The ALJ determined at step four that plaintiff could not return to past relevant work and at step five that jobs exist in significant numbers in the national economy that plaintiff can perform. Tr. 29-30. The ALJ therefore found that plaintiff was not disabled.

         In April 2018, i.e., six months after the ALJ issued her October 2017 decision, plaintiff submitted additional medical records dated between February 2017 and March 2018 to the Appeals Council in order to “confirm the diagnosis of rheumatoid arthritis since February 2017.” Tr. 442. Counsel provided no explanation for the tardy submission. Id. The Appeals Council found that the records dated from February to September 2017 did not show a reasonable probability of changing the outcome of the ALJ's decision. Tr. 2. The ALJ found that the remainder of the submitted medical records (dated March 2018) did not relate to the period at issue. Nonetheless, in denying plaintiff's request for review, the Appeals Council exhibited plaintiff's late-submitted records. See Tr. 39-61. The ALJ's decision stands as the Commissioner's final decision. Tr. 16-31.

         DISCUSSION

         The Court will reverse the ALJ's decision only if it was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ's decision may not be reversed on account of an error that is harmless. Id. at 1111. Where the evidence is susceptible to more than one rational interpretation, the Court must uphold the Commissioner's interpretation. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Although she advances plausible theories, plaintiff has not demonstrated that the ALJ's decision was unsupported by substantial evidence, was the result of harmful legal error, or was based on an unreasonable interpretation of the medical evidence.

         1. Step Two Consideration of Fibromyalgia and Rheumatoid Arthritis

         Plaintiff argues that the ALJ erred by failing to find at step two that fibromyalgia and rheumatoid arthritis constituted severe impairments. This argument is unpersuasive because plaintiff cannot show that any step-two error made by the ALJ was harmful.

         Although plaintiff argues that the ALJ should have considered rheumatoid arthritis and fibromyalgia at step two, she fails to demonstrate that the ALJ harmfully erred in assessing RFC by failing to label those conditions as “severe.” Where step two is decided in the claimant's favor, as it was in this case, any error at step two is harmless if the plaintiff cannot show that functional limitations from these impairments would have otherwise impacted the ALJ's analysis. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). Plaintiff has not demonstrated that harmful error exists merely by noting that rheumatoid arthritis is a chronic condition and that fibromyalgia, by its very nature, involves a cycle of pain and fatigue. See Dkt. 21, at 3-4 (citing, in reply brief, the definition of fibromyalgia set forth in Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017)). Plaintiff cites the evidence submitted for the first time to the Appeals Council (evidence dated both before and after the decision) only to “confirm” that the diagnoses of rheumatoid arthritis and fibromyalgia occurred during the relevant period. Dkt. 14, at 4 (citing Tr. 39-53). Plaintiff has identified no medical evidence that rheumatoid arthritis or fibromyalgia limited her in ways that the ALJ failed to account for in assessing RFC. The ALJ explicitly discounted the plaintiff's limitations stemming from fibromyalgia. Tr. 29. Although the ALJ referred only to osteoarthritis rather than to rheumatoid arthritis, the ALJ nonetheless rejected the severity of plaintiff's claimed limitations to her joints, referring with specificity to plaintiff's left-knee functionality and complaints about other back and joint pain. Tr. 23-29.

         The Court finds to be harmless any error the ALJ committed at step two by not determining rheumatoid arthritis and fibromyalgia to be severe impairments.

         2. Discounting Plaintiff's Symptom Testimony

         Plaintiff argues that the ALJ rejected her symptom testimony without citing specific, clear and convincing reasons. See Burrell v. Colvin, 775 F.3d ...


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