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Roosevelt T. v. Berryhill

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

June 7, 2019

ROOSEVELT T., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler United States Magistrate Judge

         Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied Plaintiff's application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, this matter is AFFIRMED.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1967.[1] He completed tenth grade, and has worked as a janitor, pallet laborer, and forklift driver. (AR 227, 256.)

         Plaintiff protectively applied for SSI in March 2015, alleging disability as of October 14, 2014.[2] (AR 202-10.) Those applications were denied and Plaintiff timely requested a hearing. (AR 123-30, 134-44.)

         In April and July 2017, ALJ Stephanie Martz held hearings, taking testimony from Plaintiff and a vocational expert (VE). (AR 39-80.) On December 22, 2017, the ALJ issued a decision finding Plaintiff not disabled. (AR 13-30.) Plaintiff timely appealed. The Appeals Council denied Plaintiff's request for review on July 30, 2018 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

         JURISDICTION

         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found that although Plaintiff engaged in substantial gainful activity since the beginning of the adjudicated period, there was nonetheless a period of at least 12 months where Plaintiff did not, and the decision therefore addresses that period. (AR 15-16.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plaintiff's seizure disorder. (AR 16-19.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Plaintiff's impairment did not meet or equal the criteria of a listed impairment. (AR 19.)

         If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of performing work at all exertional levels, but he must avoid exposure to hazards, heights, open bodies of water, and moving machinery. (AR 19.) With that assessment, the ALJ found Plaintiff able to perform past relevant work as a cleaner and stores laborer. (AR 28-29.)

         If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. The ALJ entered alternative step-five findings, indicating that Plaintiff could also adjust to other representative jobs, such as assembler, cashier II, and packing line worker. (AR 29-30.)

         This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         Plaintiff argues the ALJ erred in (1) finding some of his medically determinable impairments to be not severe at step two, (2) finding that his seizure disorder does not meet a listing at step three, (3) discounting his subjective testimony, (4) assessing medical opinion evidence, (5) omitting certain limitations from the RFC assessment, (6) finding that he could perform his past work, and (7) relying on the VE's testimony at step five. Plaintiff also argues that evidence submitted to the Appeals Council was erroneously rejected. Plaintiff argues that the errors in the ALJ's decision should be remedied by a remand for a finding of disability. The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed.

         Step two

         Plaintiff argues that the ALJ erred in discounting various conditions as severe at step two, each of which the Court will address in turn.

         Legal standards

         At step two, a claimant must make a threshold showing that her medically determinable impairments significantly limit her ability to perform basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 145 (1987); 20 C.F.R. §§ 404.1520(c), 416.920(c). “Basic work activities” refers to “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1522(b), 416.922(b). “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an individual's ability to work.'” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling 85-28). “[T]he step two inquiry is a de minimis screening device to dispose of groundless claims.” Id. (citing Bowen, 482 U.S. at 153-54). An ALJ is also required to consider the “combined effect” of an individual's impairments in considering severity. Id. A diagnosis alone is not sufficient to establish a severe impairment. Instead, a claimant must show his medically determinable impairments are severe. 20 C.F.R. §§ 404.1521, 416.921.

         Back pain & shoulder impairment

         Plaintiff alleges that the ALJ erred in finding that his back pain and shoulder impairment were not severe because the ALJ relied on the opinion of a consultative examiner, A. Peter Weir, M.D., who did not have access to all of the objective evidence. Dkt. 14 at 3. He also argues that because the evidence shows that he never recovered full range of motion after his shoulder surgery, that evidence shows that he had some workplace restrictions. Dkt. 14 at 3-4.

         In finding that Plaintiff's back pain and shoulder impairment were not severe, the ALJ cited many unremarkable physical examinations as well as the minimal complaints and treatment for either issue. (AR 16-17.) The ALJ also noted that Plaintiff was able to perform medium-exertion work as a janitor from October 2016 to June ...


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