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Angela S. v. Commissioner of Social Security

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

November 13, 2019

ANGELA S., Plaintiff,


          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. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set forth below, the Court affirms Defendant's decision to deny benefits.


         1. Did the ALJ err in finding Plaintiff's mental impairments non-severe?

         2. Did the ALJ err in evaluating Plaintiff's fibromyalgia?

         3. Did the ALJ err in evaluating Plaintiff's symptom testimony?

         4. Did the ALJ properly evaluate the medical opinion evidence?

         5. Did the ALJ err in discounting lay witness testimony?


         On October 8, 2014, Plaintiff filed applications for disability insurance and supplemental security income benefits, alleging a disability onset date of February 1, 2010. AR 17, 309-10, 311-16.[1] Plaintiff's applications were denied upon initial administrative review and on reconsideration. AR 17, 198-203, 204-12, 214-18, 219-25. A hearing was held before Administrative Law Judge (“ALJ”) Rebecca L. Jones on November 22, 2016. AR 42-101. In a decision dated June 1, 2017, the ALJ found that Plaintiff was not disabled. AR 14-30. The Social Security Appeals Council denied Plaintiff's request for review on May 16, 2018. AR 1-6.

         On July 30, 2018, Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision. Dkt. 5. Plaintiff asks this Court to reverse the ALJ's decision and to remand this case for an award of benefits or additional proceedings. Dkt. 14, pp. 17-18.


         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). This requires “more than a mere scintilla” of evidence. Id.

         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.


         The Commissioner uses a five-step sequential evaluation process to determine if a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The ALJ assesses the claimant's RFC to determine, at step four, whether the plaintiff can perform past relevant work, and if necessary, at step five to determine whether the plaintiff can adjust to other work. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). The ALJ has the burden of proof at step five to show that a significant number of jobs that the claimant can perform exist in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920.

         In this case, the ALJ found that Plaintiff had the following severe, medically determinable impairments: chronic obstructive pulmonary disease (“COPD”); fibromyalgia; moderate osteoarthritis of the left knee; and tobacco use disorder. AR 20. The ALJ also found that Plaintiff had a range of non-severe physical and mental impairments, including depression and anxiety. AR 20-22.

         Based on the limitations stemming from these impairments, the ALJ assessed Plaintiff as being able to perform a reduced range of light work. AR 23. Relying on vocational expert (“VE”) testimony, the ALJ found that Plaintiff could perform her past work; therefore, the ALJ determined at step 4 that Plaintiff was not disabled. AR 29.

         A. Step two

         Plaintiff maintains that the ALJ erred at step two of the sequential evaluation by finding her depression and anxiety to be non-severe impairments and failing to include any work-related mental limitations in her residual functional capacity. Dkt. 14, pp. 2-3. In support of her contention, Plaintiff cites treatment notes establishing that Plaintiff was diagnosed with depression and anxiety and describing the symptoms stemming from these conditions. Dkt. 21, pp. 2-3.

         At step two of the sequential evaluation, the ALJ must determine if the claimant suffers from any medically determinable impairments that are “severe.” 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is not considered to be “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).

         Here, the ALJ found that Plaintiff's depression and anxiety did not cause more than minimal limitation in Plaintiff's ability to perform basic work-related mental activities and were therefore non-severe. AR 21. The ALJ cited generally unremarkable mental status examinations and Plaintiff's reported improvement in her symptoms with medication to support this conclusion. Id.

         Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999))). Here, the ALJ's finding that Plaintiff's mental impairments were non-severe is a rational interpretation of the record and supported by substantial evidence, specifically the improvement of Plaintiff's symptoms with medication and generally normal mental status examinations.

         The Court also notes that even if the ALJ erred in excluding mental limitations from Plaintiff's RFC, this would constitute harmless error. Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if it is neither prejudicial to the claimant nor “inconsequential” to the ALJ's “ultimate nondisability ...

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