United States District Court, W.D. Washington, Seattle
ORDER RE: SOCIAL SECURITY DISABILITY APPEAL
Alice Theiler United States Magistrate Judge
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.
AND PROCEDURAL HISTORY
was born on XXXX, 1967. He completed tenth grade, and has
worked as a janitor, pallet laborer, and forklift driver. (AR
protectively applied for SSI in March 2015, alleging
disability as of October 14, 2014. (AR 202-10.) Those
applications were denied and Plaintiff timely requested a
hearing. (AR 123-30, 134-44.)
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 has jurisdiction to review the ALJ's decision
pursuant to 42 U.S.C. § 405(g).
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.)
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
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.)
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).
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.
argues that the ALJ erred in discounting various conditions
as severe at step two, each of which the Court will address
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,
pain & shoulder impairment
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.
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 ...