United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
Theresa L. Fricke, United States Magistrate Judge.
B. has brought this matter for judicial review of
defendant's denial of her application for disability
insurance benefits. 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 affirms
defendant's decision to deny benefits.
ISSUES FOR REVEW
the ALJ err at step two in not finding that plaintiff had
“severe” mental-health impairments, and if so was
this error harmless?
the ALJ err in weighing the medical opinion evidence?
the ALJ give adequate reasons to discount plaintiff's
the ALJ give adequate reasons to discount lay testimony from
applied for disability insurance benefits in July 2012,
alleging she became disabled as of November 1, 2004. Dkt. 11,
Administrative Record (AR) 682. 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 decision in June 2014.
Id. Plaintiff appealed, and this Court remanded.
Id.; see AR 780-800.
another hearing, an ALJ issued another unfavorable written
decision on January 4, 2018. AR 698; AR 705-46 (hearing
transcript). Because plaintiff's date last insured was
December 31, 2008, the relevant period for determining
whether plaintiff was disabled is November 1, 2004, to
December 31, 2008. AR 683.
performed the five-step sequential analysis. AR 684-98. He
determined that there were jobs existing in significant
numbers in the national economy that plaintiff could perform,
and therefore that plaintiff was not disabled during the
relevant period. AR 696-98. Plaintiff filed a complaint with
this Court, seeking reversal and remand for an award of
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
the evidence admits of more than one rational interpretation,
” that decision must be upheld. 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. §
404.1520. At step four of that process, the claimant's
residual functional capacity (RFC) is assessed to determine
whether past relevant work can be performed, and, if
necessary, at step five to determine whether an adjustment to
other work can be made. Kennedy v. Colvin, 738 F.3d
1172, 1175 (9th Cir. 2013). At step five, the Commissioner
has the burden of proof, which can be met by showing a
significant number of jobs exist in the national economy that
the claimant can perform. Tackett v. Apfel, 180 F.3d
1094, 1099 (9th Cir. 1999); 20 C.F.R. § 404.1520(e).
Step Two Severe Impairments Finding
first asserts that the ALJ erred in finding, based on
testimony from medical expert Joseph Carver, Ph.D., that
plaintiff “had no psychiatric medically determined
impairment diagnosed according to the standards of the
Regulations, ” and that this error “undermined
his entire decision.” Dkt. 15, p. 3; AR 685. The Ninth
Circuit has held that if an ALJ decides step two of the
sequential evaluation in a claimant's favor, an error in
failing to designate a particular condition
“severe” at step two is harmless. Buck v.
Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). Here,
the ALJ decided step two in plaintiff's favor, and