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Fawnette S. v. Commissioner of Social Security

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

August 14, 2019

FAWNETTE S., Plaintiff,


          Theresa L. Fricke United States Magistrate Judge.

         Fawnette S. has brought this matter for judicial review of defendant's denial of her application for supplemental security income (SSI). The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons below, the undersigned reverses defendant's decision to deny benefits and remands for further administrative proceedings.


         1. Did the ALJ err in determining that plaintiff's digestive disorder, cervical radiculopathy, and hand condition did not meet the criteria for listed impairments?

         2. Did the ALJ give adequate reasons to reject opinions from an examining physician and a treating nurse practitioner?

         3. Did the ALJ give adequate reasons to discount plaintiff's testimony?

         4. Should the Court remand for an award of benefits?


         Plaintiff applied for SSI on December 9, 2015, alleging she became disabled beginning in July 2015. Dkt. 8, Administrative Record (AR) 10. Her application was denied at the initial and reconsideration levels of administrative review. Id. After a hearing, an administrative law judge (ALJ) issued an unfavorable written decision on November 1, 2017. AR 10-25; see AR 30-69 (hearing transcript). The ALJ performed the five-step sequential analysis. AR 10-25. She determined that there were jobs existing in significant numbers in the national economy that plaintiff could perform and therefore that plaintiff was not disabled. AR 23-24. Plaintiff filed a complaint with this Court, seeking reversal and remand for an award of benefits.


         The 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.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This requires “more than a mere scintilla, ” though “less than a preponderance” of the evidence. Id.; Trevizo v. Berryhill, 871 F.3d 664, 674-75 (9th Cir. 2017).

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court is required to weigh both the evidence that supports, and evidence that does not support, the ALJ's conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. The Court considers only the reasons the ALJ identified. Id.

         “If the evidence admits of more than one rational interpretation, ” the Court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That is, “‘[w]here there is conflicting evidence sufficient to support either outcome, '” the Court “‘must affirm the decision actually made.'” Id. (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).


         The Commissioner uses a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 416.920. The Commissioner assesses a claimant's residual functional capacity (RFC) to determine-at step four-whether the claimant can perform past relevant work. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). If the claimant cannot, then the ALJ reviews-at step five-whether the claimant can adjust to other work. Id. The Commissioner has the burden of proof at step five. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The Commissioner can meet this burden by showing that a significant number of jobs that the claimant can perform exist in the national economy. Id.; 20 C.F.R. § 416.920(e).

         A. Step-Three Listing Determinations

         Plaintiff contends the ALJ erred at step three of the sequential evaluation process. She challenges the ALJ's findings that plaintiff does not have an impairment or combination of impairments that meets or medically equals Listings 1.00(B)(2), 1.04(A), or 5.08. See AR 13-15; 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 1.00(B)(2), 1.04(A), 5.08.

         At step three, the ALJ must evaluate the claimant's impairments to decide whether they meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R § 416.920(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If they do, the claimant is deemed disabled. 20 C.F.R § 416.920(d). The burden of proof is on the claimant to establish he or she meets or equals any of the impairments in the listings. Tackett, 180 F.3d at 1098. “A generalized assertion of functional problems is not enough to establish disability at step three.” Id. at 1100 (citing 20 C.F.R. § 404.1526). An ALJ “must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).

         To meet a listing, a claimant “must have a medically determinable impairment(s) that satisfies all of the criteria of the listing.” 20 C.F.R. § 416.925(d). To medically equal a listed impairment, “the medical findings (defined as a set of symptoms, signs, and laboratory findings)” must be “at least equivalent in severity to the set of medical findings for the listed impairment.” SSR 83-19, 1983 WL 31248 *2.

         1. Listing 5.08, Weight loss due to colitis

         Plaintiff first contends that the ALJ erred in finding her colitis to be “non-severe” at step two. After finding colitis is non-severe because “[t]here is no evidence of any work-related limitations from” it, the ALJ did not assess whether plaintiff's colitis met or equaled Listing 5.08.

         Although plaintiff presents this as a challenge to the ALJ's step-two finding that colitis was not a severe impairment, such an error is harmless if it does not change the ultimate disability determination. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (holding that because ALJ decided step two in claimant's favor and was required to consider all impairments in RFC, whether “severe” or not, “[a]ny alleged error is therefore harmless and cannot be the basis for a remand”). Because plaintiff alleges that the harm occurred when-at step three-the ALJ declined to consider plaintiff's weight loss under Listing 5.08, plaintiff's challenge is more properly addressed as a step-three issue.

         Listing 5.08 requires that a claimant have “[w]eight loss due to any digestive disorder despite continuing treatment as prescribed, with BMI of less than 17.50 calculated on at least two evaluations at least 60 days apart within a consecutive 6-month period.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 5.08.

         Plaintiff has not shown harmful error due to the ALJ's step two finding because she does not present evidence that would show she meets or equals Listing 5.08. As plaintiff notes, the record shows that plaintiff consistently had a BMI of less than 17.50, including on evaluations at least 60 days apart in a consecutive six-month period, see, e.g., AR 360, 383, 666. But plaintiff does not identify evidence that her low BMI was “due to” her digestive disorder. Although she points to her testimony that, at the time of the hearing, she was losing weight due to an infection in her abdomen, that infection had occurred less than a month before the hearing. AR 45-46, 49; see also AR 690-91 (diagnosis of colitis based on July 2017 CT scan). As the Commissioner points out, other notes in the record indicate that plaintiff's weight loss was monitored before and during the relevant period as potentially related to a thyroid condition rather than a digestive disorder. AR 450, 534, 652. Accordingly, plaintiff has not shown error with respect to the ALJ's failure to find colitis a severe impairment or compare it to a listing at step three.

         Plaintiff also challenges the ALJ's determination that she did not meet or medically equal two other listings, ...

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