United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING WITH PREJUDICE
A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.
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.
Step Two Consideration of Fibromyalgia and Rheumatoid
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
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.
Court finds to be harmless any error the ALJ committed at
step two by not determining rheumatoid arthritis and
fibromyalgia to be severe impairments.
Discounting Plaintiff's Symptom Testimony
argues that the ALJ rejected her symptom testimony without
citing specific, clear and convincing reasons. See
Burrell v. Colvin, 775 F.3d ...