United States District Court, W.D. Washington, Tacoma
ORDER REVERSING DEFENDANT'S DECISION TO DENY
BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
Theresa L. Fricke United States Magistrate Judge.
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.
ISSUES FOR REVEW
the ALJ err in determining that plaintiff's digestive
disorder, cervical radiculopathy, and hand condition did not
meet the criteria for listed impairments?
the ALJ give adequate reasons to reject opinions from an
examining physician and a treating nurse practitioner?
the ALJ give adequate reasons to discount plaintiff's
Should the Court remand for an award of benefits?
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.
STANDARD OF REVIEW
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.
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.
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)).
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. §
Step-Three Listing Determinations
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.
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).
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.
Listing 5.08, Weight loss due to colitis
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
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.
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.
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.
also challenges the ALJ's determination that she did not
meet or medically equal two other listings, ...