United States District Court, W.D. Washington, Tacoma
OPINION AND ORDER TO AFFIRM THE COMMISSIONER'S
DECISION TO DENY DISABILITY BENEFITS
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
brought this matter for judicial review of the
Commissioner's denial of her application for supplemental
security income (“SSI”) and disability insurance
(“DBI”) benefits. Plaintiff contends the decision
of the Commissioner was based on legal error and not
supported by substantial evidence. For the reasons set forth
below, the decision to deny benefits is affirmed.
AND PROCEDURAL HISTORY
October 28, 2014, plaintiff filed for SSI and DIB, alleging
disability beginning November 1, 2012. Administrative Record
(“AR”) 20. These claims were denied on initial
administrative review and on reconsideration. Id.
Plaintiff appeared and testified at a hearing before
administrative law judge (“ALJ”) Ilene Sloan on
July 27, 2016. AR 45. Following the hearing, the ALJ issued
an unfavorable decision on October 27, 2016. AR 20-37.
Commissioner employs a five-step sequential disability
evaluation process in determining whether a claimant is
disabled. 20 C.F.R. § 416.920. If the claimant is found
disabled or not disabled at any step thereof, the disability
determination is made at that step, and the sequential
evaluation process ends. Id. Step one considers
whether the claimant is engaged in “substantial gainful
activity.” Kennedy v. Colvin, 738 F.3d 1172,
1175 (9th Cir. 2013) (citing C.F.R. § 416.920(a)(4)).
Step two considers “the severity of the claimant's
impairments. Id. If the claimant is found to have a
severe impairment, step three considers “whether the
claimant's impairment or combination of impairments meets
or equals a listing under 20 C.F.R. pt. 404, subpt. P, app.
1.” Id. “If so, the claimant is
considered disabled and benefits are awarded, ending the
inquiry.” Id. If not, the claimant's
residual functional capacity (“RFC”) is
considered at step four in determining whether the claimant
can still do his or her past relevant work and, if necessary,
at step five “make an adjustment to other work.”
one, the ALJ determined plaintiff had not engaged in
substantial gainful activity since plaintiff's alleged
onset date of November 1, 2012. AR 22. At step two, the ALJ
found plaintiff has the following severe impairments: status
post thyroid/parathyroid surgeries; status post thyroid
cancer; status post elbow and hand procedures; obesity; and
fibromyalgia. AR 23. At step three, the ALJ found plaintiff
did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed
impairments. AR 26.
to step four, the ALJ determined plaintiff has the RFC to
perform light work “except she can only occasionally
stoop, kneel, crouch, and crawl. She can occasionally climb
ramps and stairs, but cannot climb ladders, ropes, or
scaffolds. She would need to avoid concentrated exposure to
hazards such as moving machinery and unprotected heights. She
can frequently handle and finger with both upper extremities,
and can frequently reach in all directions.” AR 26-27.
After determining plaintiff's RFC, the ALJ found at step
four she was unable to perform any of her past relevant work,
but that at step five she could perform other jobs existing
in significant numbers in the national economy, and therefore
found plaintiff was not disabled. AR 35-36.
requested review and the Social Security Administration
Appeals Council denied review on March 12, 2018, making the
ALJ's decision the Commissioner's final decision
subject to judicial review. AR 1. Plaintiff appealed to this
Court on May 9, 2018. See Dkt. 4 p. 4. The Parties
consented to proceed before a magistrate judge. Dkt. 2.
seeks reversal of the ALJ's decision and remand for an
award of benefits, arguing the Commissioner erred in:
evaluating (1) plaintiff's severe impairments; (2)
plaintiff's symptom testimony; (3) plaintiff's RFC;
and (4) whether plaintiff can perform work existing in
substantial numbers in the national economy.
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error; or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a
mere scintilla, '” though “‘less than a
preponderance'” of the evidence. Id.
(quoting Desrosiers, 846 F.2d at 576). The
Commissioner's findings will be upheld “if
supported by inferences reasonably drawn from the
record.” Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
than one rational interpretation can be drawn from the
evidence, then the Court must uphold the ALJ's
interpretation. Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007). That is, “[w]here there is conflicting
evidence sufficient to support either outcome, ” the
Court “must affirm the decision actually made.”
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)
(quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th
Cir. 1971)). The Court, however, may not affirm by locating a
quantum of supporting evidence and ignoring the
non-supporting evidence. Orn, 495 F.3d at 630.
Whether the ALJ appropriately evaluated plaintiff's
contends the ALJ's step-two determination of
plaintiff's severe impairments does not account for her
severe impairment of “status post mid foot
fusion.” Dkt. 15 p. 5.
of the administration's evaluation process requires the
ALJ to determine if the claimant “has a medically
severe impairment or combination of impairments.”
Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir.
1996) (citation omitted). An impairment is "not
severe" if it does not "significantly limit"
the ability to conduct basic work activities. Id.
“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, supra, 80 F.3d at 1290 (quoting
Social Security Ruling “SSR” 85-28) (citing
Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.
1988)). The step-two analysis is “a de minimis
screening device to dispose of groundless claims” when
the disability evaluation process ends at step two.
Smolen, supra, 80 F.3d at 1290 (citing
Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)).
Plaintiff bears the burden to establish by a preponderance of
the evidence the existence of a severe impairment that
prevented performance of substantial gainful activity and
that this impairment lasted, or is expected to last, for at
least twelve continuous months. Yuckert, supra, 482
U.S. at 146.
case, medical records show plaintiff fractured her foot in
late 2011 and in December 2012, she was diagnosed with
posttraumatic arthritis in the left foot and underwent
mid-foot fusion surgery. AR 3914, 3894-3896. In July of 2013,
plaintiff reported continuing lateral foot pain. AR 3641. Her
physician performed a bone scan and stated he was “a
bit at a loss as to why she continues to have her lateral
foot pain, other than this is tendon related and related to
the biomechanics of her foot.” Id. In August
and November of 2013, plaintiff's surgeon removed the
retained hardware from plaintiff's foot. AR 3621 and
noted subsequent reports show few specific complaints related
to left foot problems, which supports a finding that
plaintiff's foot condition is not severe. See AR
25. Plaintiff counters with citations to an April 2014 visit
in which she sought treatment for chronic foot pain and a
November 2014 assessment of lower extremity muscle spasms and
bilateral leg pain. Dkt. 15 p. 6. But the ALJ reasonably
discounted plaintiff's April 2014 report of chronic foot
pain because it was made in the context of requesting
narcotic pain medication. AR 25; see AR 3516. As
discussed below, doctors have noted plaintiff's
consistent pattern of being less than candid with her
symptoms to obtain narcotic pain medication. See
Section 3, infra. Furthermore, it is not evident
plaintiff's November 2014 muscle spasms and leg pain
relate to her left foot condition. See AR 1235-1243.
paucity of complaints related to a foot condition is
consistent with plaintiff's testimony at the hearing.
Plaintiff made no specific mention of limitations due to foot
problems. See AR 45-66. Moreover, as the ALJ
implied, plaintiff's activities do not suggest
limitations from foot pain. See AR 34. Plaintiff
took care of her terminally ill mother for roughly a year and
a half from March 2013 to September 2014. See AR 60,
295. Plaintiff's duties included helping her mother with
eating, toileting, and dressing. AR 60. She also cared for
the family's horses, which she apparently continued to do
after her mother passed away. See AR 297. These
duties generally show ability to work on one's feet.
while plaintiff underwent a foot procedure in 2012, the
paucity of subsequent complaints related to foot pain suggest
her condition resolved. Her activities also tend to suggest
any continuing foot impairment has “no more than a
minimal effect on [her] ability to work." See
Smolen, supra, 80 F.3d at 1290. Therefore,
substantial evidence supports the ALJ's determination
that plaintiff's left foot condition is not a severe
Whether the ALJ appropriately concluded plaintiff did not
meet one of the listings.
broadly disputes the ALJ's determination that her
impairments did not meet or equal one of the listings. Dkt.
15 p. 4. However, “a bare assertion of an issue does
not preserve a claim.” D.A.R.E. America v. Rolling
Stone Magazine,270 F.3d 793, 793 (9th Cir.2001)
(internal citations omitted). Plaintiff fails to identify a
legal standard with respect to the listings and does not
provide any reasoning how the ALJ erred with respect to the
listing analysis. See id. pp. 1-12. Therefore, the
court concludes the ALJ did not err in finding
plaintiff's impairments did not meet or medically equal
any of the listings. See Carmickle v. Comm'r, ...