United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
Theresa L. Fricke, United States Magistrate Judge
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.
ISSUES FOR REVEW
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?
the ALJ err in rejecting a portion of Plaintiff's
FACTUAL AND PROCEDURAL HISTORY
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.
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. 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.
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.
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. Trevizo v.
Berryhill, 871 F.3d 664, 674-75 (9th Cir. 2017).
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.
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).
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).
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 ...