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Lisa L. v. Commissioner of Social Security

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

November 19, 2019

LISA L., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff Lisa L. seeks review of the denial of her application for Disability Insurance Benefits. She contends the ALJ erroneously failed to (1) find her PTSD and panic disorder were severe impairments, (2) acknowledge limitations caused by chronic pain, (3) resolve a conflict between the Dictionary of Occupational Titles and the residual functional capacity finding, (4) include visual limitations in the RFC finding, and (5) include all plaintiff's limitations in the hypothetical posed to the vocational expert. Dkt. 12. The Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         BACKGROUND

         Plaintiff is currently 57 years old and was 53 years old on her date last insured, has an 11th grade education, and has worked as a gambling cashier and a money counter. Tr. 311, 164, 175-76. She applied for benefits in January 2016, alleging disability as of June 17, 2014, the day after a previous decision denying her benefits became final. Tr. 155, 311. After her applications were denied initially and on reconsideration, the ALJ conducted a hearing and, on June 22, 2018, issued a decision finding plaintiff not disabled. Tr. 11-22. The Appeals Council denied plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. Tr. 1.

         THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [1] the ALJ found that through her date last insured of December 31, 2014, plaintiff had not engaged in substantial gainful activity; she had the following severe impairments: degenerative joint disease and degenerative disc disease; and these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 13-14. The ALJ found that plaintiff had the residual functional capacity to perform light work except she could occasionally kneel, crouch, and crawl, with no climbing of ladders, ramps, and scaffolds, and she was limited to occasional overhead reaching. Tr. 15. The ALJ found that plaintiff was capable of performing her past relevant work as a gambling cashier and money counter and that she was therefore not disabled. Tr. 21-22.

         DISCUSSION

         A. Step two: PTSD and panic disorder

         Plaintiff argues that the ALJ erred in finding that her PTSD and panic disorder were not severe at step two. Dkt. 12 at 4. At step two, a claimant must make a threshold showing that (1) she has a medically determinable impairment or combination of impairments and (2) the impairment or combination of impairments is severe. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); 20 C.F.R. § 404.1520(c), 416.920(c). A medically determinable impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The step-two inquiry has been characterized as “a de minimis screening device to dispose of groundless claims.” Id.

         When evaluating whether a mental impairment is severe, the ALJ must rate the degree of functional limitation resulting from the impairment in four broad areas: the ability to (1) understand, remember, or apply information, (2) interact with others, (3) concentrate, persist, or maintain pace, and (4) adapt or manage oneself. 20 C.F.R. § 404.1520a(c). If the ALJ rates the degree of functional limitation in these areas as “none” or “mild, ” the ALJ will generally find the impairment is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in the plaintiff's ability to do basic work activities. 20 C.F.R. § 404.1520a(d).

         The ALJ found that plaintiff's medically determinable mental impairment of anxiety did not cause more than minimal limitation in plaintiff's ability to work and was therefore not severe. Tr. 14. In the broad areas of functioning, the ALJ found that plaintiff's anxiety caused no limitations in understanding, remembering, or applying information; concentrating, persisting, or maintaining pace; or in adapting or managing oneself; and mild limitation in interacting with others. Id.

         As support for this finding, the ALJ found that plaintiff's anxiety and panic attacks were treated with psychiatric medicine from her primary care physician during the relevant period, and that mental status examination findings during this time included cooperative behavior, normal mood and affect, and intact attention and concentration. Tr. 14. The ALJ cited to one treatment note from Donald Novey, M.D., dated July 31, 2014, which documented plaintiff's medication usage and included the mental status examination findings the ALJ described. Tr. 413-18.

         The ALJ also discussed, but did not assign weight to, a July 24, 2014, psychosocial mental status assessment by Jill Stenerson, MA, LMHC. Tr. 14. In that assessment, plaintiff reported increasing anxiety and panic, a history of domestic violence, and current symptoms of nightmares, flashbacks, hypervigilance, and difficulties with concentration. Tr. 406. On mental status examination, plaintiff was amiable and cooperative; she had good recall of past events even though she spoke with “dissociation” when discussing traumatic memories; and she was alert and fully oriented. Tr. 409. However, she appeared to have some deficits in executive functioning, including memory, metacognition, sustained attention, and self-regulation of affect, as well as impaired insight and judgment. Id. Ms. Stenerson diagnosed PTSD and panic disorder. Tr. 410. She opined that plaintiff was suffering the effects of chronic, consistent trauma from years of abuse and she would no longer be able to work. Id.

         Plaintiff argues that the ALJ erred by relying on Dr. Novey's treatment note, which was made as part of a general physical examination, but not Ms. Stenerson's more focused mental examination from the same period. Dkt. 12 at 7. The court agrees. Although the ALJ noted Ms. Stenerson's findings of deficits in memory, cognition, sustaining attention, self-regulation, judgment, and insight, the ALJ nevertheless found that plaintiff had no limitations in understanding, remembering, and applying information; concentrating, persisting, and maintaining pace; or adapting and managing herself. The ALJ's findings are in direct conflict with ...


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