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Tehri E. v. Commissioner of Social Security

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

September 9, 2019

TEHRI E., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          Theresa L. Fricke, United States Magistrate Judge

         Plaintiff has brought this matter for judicial review of defendant's denial of her applications for disability insurance and supplemental security income benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. For the reasons set forth below, defendant's decision to deny benefits is reversed and remanded for additional proceedings to determine whether plaintiff is disabled.

         I. ISSUES FOR REVEW

         1. Did the ALJ err in evaluating medical evidence, including: a. finding Plaintiff's migraines to be a non-severe impairment; b. rejecting opinion evidence by treating physicians; and c. failing to include the migraine headache limitations in the RFC?

         2. Did the ALJ err in rejecting a portion of Plaintiff's testimony?

         II. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff first applied for disability insurance and supplemental security income benefits on May 12, 2011. Dkt. 8., Administrative Record (AR) 114. Plaintiff initially alleged that she became disabled on November 9, 2009. AR 114. Plaintiff's applications were denied initially and on reconsideration on July 1, 2011 and October 4, 2011 respectively. AR 114. After a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision on May 24, 2012. AR 111-127. On April 1, 2013, the Social Security Appeals Council denied Plaintiff's request for review. AR 132-137. Plaintiff then appealed the ALJ's decision to the United States District Court for the Western District of Washington (Court), which affirmed the ALJ's decision on January 31, 2014. AR 190-200.

         Plaintiff did not appeal, and instead applied again for disability insurance benefits on July 30, 2014 and for supplemental security income benefits on September 22, 2014. AR 32, 337-338, 339-347; the ALJ determined an alleged onset date of May 25, 2012.[1] AR 32, 70. Plaintiff's new applications for disability insurance and supplemental security income benefits were denied initially and on reconsideration on January 13, 2015 and April 22, 2015, respectively. AR 32, 201-209, 214-218, 219-225.

         On November 7, 2016, ALJ Ilene Sloan held a hearing on plaintiff's 2014 applications. AR 67-110. On April 13, 2017, the ALJ issued an unfavorable decision. AR 29-46. The Appeals Council denied Plaintiff's request for review. AR 8-14. Plaintiff appealed to this Court and seeks reversal and remand for additional proceedings. Dkt. 10, p. 17.

         III. STANDARD OF REVIEW

         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. 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. Only the reasons identified by the ALJ are considered in the scope of the Court's review. Id.

         IV. DISCUSSION

         The Commissioner employs a five-step sequential evaluation process to determine if a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. At step two, an impairment does not meet the requirements for “severe” if it does not “significantly limit” a claimant's mental or physical abilities to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c); Social Security Ruling (SSR) 96-3p, 1996 WL 374181, at *1. Basic work activities are those “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1522(b), 416.920(c); SSR 85-28, 1985 WL 56856, at *3. An impairment is not severe if the evidence establishes only a slight abnormality that has “no more than a minimal effect on an individual[']s ability to work.” SSR 85-28, 1985 WL 56856, at *3; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

         The ALJ assesses the claimant's residual functional capacity (“RFC”) to determine whether he or she can perform past work or make an adjustment to other work. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). It is the ALJ's burden to show, at step five, the claimant can perform jobs that exist “in significant numbers in the national economy.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); 20 C.F.R. §§ 404.1520(e), 416.920(e).

         In this case, the ALJ determined that Plaintiff had the residual functional capacity to perform:

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) including the ability to do the following. She can occasionally balance, stoop, kneel, crouch and crawl. She can never climb ladders, ropes or scaffolds. She can occasionally climb stairs. She can frequently push/pull with the bilateral upper extremities. She should avoid concentrated exposure to hazards and moving machinery and unprotected heights.

AR 38 (citations omitted). Based on the vocational expert's testimony, the ALJ determined that Plaintiff was able to perform her past relevant work as an administrative assistant, receptionist, and/or a ...


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