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Sherrie B. v. Commissioner of Social Security

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

August 19, 2019

SHERRIE B., Plaintiff,


          Theresa L. Fricke, United States Magistrate Judge.

         Sherrie 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.


         1. Did the ALJ err at step two in not finding that plaintiff had “severe” mental-health impairments, and if so was this error harmless?

         2. Did the ALJ err in weighing the medical opinion evidence?

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

         4. Did the ALJ give adequate reasons to discount lay testimony from plaintiff's husband?


         Plaintiff 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.

         After 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.

         The ALJ 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 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.

         “If 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)).


         The 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).

         A. Step Two Severe Impairments Finding

         Plaintiff 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 plaintiff ...

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