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Jerome C. v. Commissioner of Social Security

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

January 8, 2020

JEROME C., Plaintiff,


          David W. Christel, United States Magistrate Judge

         Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's applications for supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred by not considering the impact of Plaintiff's breathing ailment on his residual functional capacity (“RFC”). The ALJ erred by not providing specific and legitimate reasons for discounting the opinion of Plaintiff's examining psychologist Dr. Zolnikov. Had the ALJ properly considered this evidence, the RFC may have contained additional limitations. The record also contains evidence not available to the ALJ at the hearing level that may impact the ultimate disability determination.

         Accordingly, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Social Security Commissioner (“Commissioner”) for further proceedings consistent with this Order.


         On October 22, 2015, Plaintiff filed an application for supplemental security income, alleging a disability onset date of March 1, 2012.[1] See Dkt. 11, Administrative Record (“AR”) 30, 343-49. Plaintiff subsequently amended his alleged onset date to October 22, 2015. AR 30, 72. His application was denied upon initial administrative review and on reconsideration. AR 30, 161-77, 181-91. A hearing was held before ALJ S. Andrew Grace on February 23, 2018. AR 69-108. In a decision dated May 3, 2018, ALJ Grace found that Plaintiff was not disabled. AR 27-40. The Social Security Appeals Council denied Plaintiff's request for review on April 16, 2019. AR 1-7. The ALJ's decision of May 3, 2018 is the final decision of the Commissioner subject to judicial review. See 20 C.F.R. § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to consider the impact of Plaintiff's chronic obstructive pulmonary disease (“COPD”) when assessing his RFC; (2) failing to properly assess opinion evidence from examining psychologist Bryan Zolnikov, Ph.D.; and (3) failing to provide clear and convincing reasons for discounting Plaintiff's symptom testimony. Dkt. 13, pp. 2-11.


         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).


         I. Whether the ALJ properly assessed Plaintiff's RFC.

         Plaintiff maintains that the ALJ erred by not including restrictions related to Plaintiff's COPD in his RFC. Dkt. 13, pp. 2-4. Plaintiff cites his testimony that his breathing problems are exacerbated by his anxiety symptoms and that he is unable to walk more than one block without using an inhaler. Dkt. 13, p. 2; citing AR 78.

         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. § 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. § 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).

         At step two, the ALJ found Plaintiff's COPD to be a non-severe impairment. AR 33. The ALJ cited Plaintiff's ongoing smoking habit and use of an inhaler, but reasoned that the medical record did not contain evidence that Plaintiff's breathing condition caused more than minimal limitations in work-related activities. Id. The ALJ found that Plaintiff could perform ...

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