United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
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.
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.
ISSUES FOR REVEW
the ALJ err in finding Plaintiff's mental impairments
the ALJ err in evaluating Plaintiff's fibromyalgia?
the ALJ err in evaluating Plaintiff's symptom testimony?
the ALJ properly evaluate the medical opinion evidence?
the ALJ err in discounting lay witness testimony?
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. 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.
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.
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). This requires “more than a
mere scintilla” of evidence. Id.
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 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.
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.
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.
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.
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).
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.
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.
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 ...