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 his application for Supplemental
Security Income. He contends the ALJ erred by
(1) failing at step three of the sequential
analysis to determine that he met or equaled the listing for
a depressive disorder (Listing 12.04) and a disorder of the
spine (Listing 1.04); (2) giving too little
weight to the examining opinion of psychologist Katrina L.
Higgins, Psy. D.; and (3) assessing an
incomplete RFC, which rendered the vocational expert's
testimony inadequate and left the decision unsupported by
substantial evidence. Dkt. 12, at 5-10. The Court
AFFIRMS the Commissioner's final
decision and DISMISSES the case with
is currently 38 years old, graduated high school, and
attended some classes at a technical college. In 2014, he
applied for SSI benefits, alleging disability as of January
1, 2014 After his application was denied initially and on
reconsideration, the ALJ conducted a hearing in July 2017, at
which a medical expert testified. Tr. 34-78. In a September
2017 decision, the ALJ determined at step one of the
five-step evaluation process that plaintiff had not engaged
in substantial gainful activity since SSI application date,
at step two that plaintiff had the severe impairments of
obesity and right shoulder abnormality, and at step three
that those impairments did not meet or equal the requirements
of a listed impairment. Tr. 17-23. The ALJ determined that
plaintiff has a residual functional capacity
(“RFC”) to perform medium work that does not
require right dominant overhead reaching and that does not
require more than frequent right reaching in other
directions. Tr. 23-25. The ALJ determined at step four that
plaintiff had no past, relevant work and at step five that
jobs exist in significant numbers in the national economy
that plaintiff can perform. Tr. 25-27. The ALJ therefore
found that plaintiff is not disabled. Tr. 27. Because the
Appeals Council denied review, the ALJ's decision is the
Commissioner's final decision.
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.
has submitted a poorly supported brief that fails to
demonstrate that the ALJ erred in any meaningful way.
Step Three Analysis
argues that he meets Listing 12.04 for a depressive disorder
and Listing 1.04 for a disorder of the spine but specifies
neither the criteria nor how any subsection might qualify him
to be deemed presumptively disabled. See Dkt. 12, at
5-6. The Court rejects counsel's conclusory
Commissioner “explicitly has set the medical criteria
defining the listed impairments at a higher level of severity
than the statutory standard.” Sullivan v.
Zebley, 493 U.S. 521, 532 (1990). “Listed
impairments set such strict standards because they
automatically end the five-step inquiry, before residual
functional capacity is even considered.” Kennedy v.
Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013). Thus, for a
claimant to show that an impairment satisfies a listing, he
“must meet all of the specified medical
criteria.” Zebley, 493 U.S. at 530. “An
impairment that manifests only some of the criteria, no
matter how severely, does not qualify.” Id.
does not even attempt to satisfy the criteria of Listing
12.04. Instead counsel cites Dr. Higgins for the broad
proposition that a depressive disorder can generally result
in adverse, mental symptoms. Dkt. 12, at 5. The cited
portions of Dr. Higgins's opinion, however, undermine the
proposition that plaintiff meets a listing. Dkt. 12, at 5
(citing Tr. 392, 398). Dr. Higgins noted her concern that
plaintiff was feigning his memory problems and learning
disabilities because there was no reasonable explanation for
the discrepancies from the 2014 test she administered and a
contrasting 2010 test. Tr. 392, 398. It is careless for
counsel to support meeting Listing 12.04 by citing the
conclusion of examining psychologist Stephanie Hanson, Ph.D.,
that plaintiff is unable to work. Dkt. 12, at 5 (citing Tr.
425). First, the ultimate determination of disability is a
question reserved for the Commissioner. Second, citing Dr.
Hanson's conclusion does not address the specific
criteria of Listing 12.04. Third, at the hearing the medical
expert explained, and plaintiff does not contest, why
plaintiff did not meet Criteria B of a listing: 2010 testing
showed he had no limitations such that the 2014 test showing
low IQ and poor concentration could not be explained absent
head trauma or significant substance abuse; plaintiff's
mental statuses were fairly normal throughout the record; his
activities of daily living were fairly normal; there was no
indication that he had difficulty interacting with others;
there was no indication of problems with concentration,
persistence, or maintaining pace; there was no indication of
inability to pay attention or of being distracted; and there
was no indication of an inability to adapt or to manage
himself. Dkt. 42-43. Moreover, the medical expert and the ALJ
rejected Dr. Hanson's conclusions as inconsistent with
Dr. Hanson's concurrently administered mental status
exam. Tr. 21, 44; compare Tr. 422-25 with
cites no record evidence for the proposition that he meets
Listing 1.04 for a disorder of the spine. The Court will not
scour the record to look for evidence of plaintiff's
ability to meet Listing 1.04 when plaintiff's counsel has
failed to cite the record even in a cursory manner.
Court finds the ALJ's step three determination that
plaintiff did not meet or equal Listing 12.04 and Listing
1.04 was supported by substantial evidence and was not the
result of harmful legal error.
Evaluation of Dr. Higgins's Opinion and ...