Fowler v. Berryhill

Filing 15

ORDER Affirming the Commissioner's Decision to Deny Benefits by Judge Theresa L Fricke. (TW)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 JOHN MORRIS FOWLER, Case No. 3:17-cv-05206-TLF 7 8 9 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security 10 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS Defendant. 11 12 Plaintiff has brought this matter for judicial review of defendant’s denial of his 13 application for supplemental security income (SSI) benefits. The parties have consented to have 14 this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil 15 Procedure 73; Local Rule MJR 13. For the reasons set forth below, the Court finds the decision 16 to deny benefits should be affirmed. 17 On November 24, 2013, plaintiff filed an application for SSI benefits, alleging he became 18 disabled beginning July 30, 2013. Dkt. 10, Administrative Record (AR) 21. That application was 19 denied on initial administrative review and on reconsideration. Id. A hearing was held before an 20 administrative law judge (ALJ), at which plaintiff appeared and testified as did a vocational 21 expert. AR 43-73. 22 In a decision dated July 24, 2015, the ALJ found that plaintiff could perform other jobs 23 existing in significant numbers in the national economy and therefore that he was not disabled. 24 25 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS - 1 1 AR 21-37. Plaintiff’s request for review was denied by the Appeals Council, making the ALJ’s 2 decision the final decision of the Commissioner, which plaintiff then appealed in a complaint 3 filed with this Court on March 23, 2017. AR 1; Dkt. 3; 20 C.F.R. § 416.1481. 4 5 Plaintiff seeks reversal of the ALJ’s decision and remand for an award of benefits, or in the alternative for further administrative proceedings, arguing the ALJ erred: 6 (1) in failing to find his headaches are a severe impairment; 7 (2) in failing to find any of his impairments met a listed impairment; and 8 (3) in assessing plaintiff’s residual functional capacity. 9 10 11 For the reasons set forth below, however, the Court disagrees that the ALJ erred as alleged, and therefore affirms the decision to deny benefits. I. STANDARD AND SCOPE OF REVIEW 12 The Commissioner employs a five-step “sequential evaluation process” to determine 13 whether a claimant is disabled. 20 C.F.R. § 416.920. If the claimant is found disabled or not 14 disabled at any step thereof, the disability determination is made at that step, and the sequential 15 evaluation process ends. Id. The Court will uphold an ALJ’s decision unless: (1) the decision is 16 based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. 17 Berryhill, No. 15-16477, slip op. at 7 (9th Cir. Oct. 26, 2017). Substantial evidence is “’such 18 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” 19 Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec’y of Health & 20 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). Substantial evidence is more than a scintilla of 21 evidence yet less than a preponderance of the evidence. Id. 22 If more than one rational interpretation can be drawn from the evidence, the ALJ’s 23 decision must be upheld. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court must 24 consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 25 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS - 2 1 2014). The Court is required to weigh both the evidence that supports, and evidence that does not 2 support, the ALJ’s decision. Id. The Court may not affirm the decision of the ALJ for a reason 3 upon which the ALJ did not rely; the Court’s scope of review is confined to the reasons 4 identified by the ALJ. Id. 5 I. 6 The Plaintiff’s Contention re: ALJ’s Step Two Determination The ALJ in this case found plaintiff had a number of severe impairments, but determined 7 that plaintiff’s headaches did not qualify as severe for purposes of step two. AR 23. Plaintiff 8 argues the ALJ’s failure to do so was error. 9 At step two of the evaluation process, the ALJ must determine if an impairment is 10 “severe.” 20 C.F.R. § 416.920. An impairment is “not severe” if it does not “significantly limit” 11 a claimant’s mental or physical abilities to do basic work activities. 20 C.F.R. § 12 416.920(a)(4)(iii); Social Security Ruling (SSR) 96-3p, 1996 WL 374181, at *1. Basic work 13 activities are those “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.921(b); 14 SSR 85- 28, 1985 WL 56856, at *3. 15 If the evidence establishes a slight abnormality that has “no more than a minimal effect 16 on an individual[’]s ability to work”, then the abnormality is not severe for purposes of step two. 17 SSR 85-28, 1985 WL 56856, at *3; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 18 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.1988). Plaintiff must prove that his or her 19 impairments or symptoms affect his or her ability to execute basic work skills. Edlund v. 20 Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 21 1998). The step two inquiry is a de minimis screening device used to dispose of groundless 22 claims. Smolen, 80 F.3d at 1290. 23 24 In this case the record does not show that plaintiff consistently experienced headaches during the relevant time period; nor does the record show any headache diagnosis; nor does the 25 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS - 3 1 record establish that he experienced headaches that resulted in any specific functional 2 limitations. See AR 387, 392, 630. Therefore the Plaintiff, at most, has shown a slight 3 abnormality that has “no more than a minimal effect on an individual[’]s ability to work” Smolen 4 v. Chater, 80 F.3d at 1290. The record shows that the headache abnormality is not severe for 5 purposes of step two, and the ALJ did not err regarding the step two criteria. 6 II. 7 The Plaintiff’s Contention re: ALJ’s Findings at Step Three At step three the ALJ stated that Listing 1.00 (musculoskeletal system) was considered, 8 but the evidence did not demonstrate plaintiff had the degree of difficulty in performing fine and 9 gross movements defined in Listing 1.00B2c or the degree of difficulty in ambulating defined in 10 Listing 1.00B2b. AR 24. Plaintiff asserts this was error, arguing specifically that the ALJ should 11 have found his spinal condition met the criteria of Listing 1.04. Dkt. 13 at 7-8. 12 At step three of the five-step sequential process, the ALJ must evaluate the claimant’s 13 impairments to decide whether they meet or equal any of the impairments listed in 20 C.F. R. 14 Part 404, Subpart P, Appendix 1. 20 C.F.R § 416.920(d); Tackett v. Apfel, 180 F.3d 1094, 1098 15 (9th Cir. 1999). If any of the claimant’s impairments medically meet or equal a listed 16 impairment, he or she is deemed disabled. Id. The burden of proof is on the claimant to establish 17 he or she meets or equals any of the impairments in the Listings. Tacket, 180 F.3d at 1098. “A 18 generalized assertion of functional problems,” however, “is not enough to establish disability at 19 step three.” Id. at 1100 (citing 20 C.F.R. § 404.1526). 20 A mental or physical impairment “must result from anatomical, physiological, or 21 psychological abnormalities which can be shown by medically acceptable clinical and laboratory 22 diagnostic techniques.” 20 C.F.R. § 416.908. It must be established by medical evidence 23 “consisting of signs, symptoms, and laboratory findings.” Id.; see also SSR 96-8p, 1996 WL 24 374184, at *2 (the determination that is conducted at step three must be made on the basis of 25 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS - 4 1 medical factors alone). An impairment meets a listed impairment “only when it manifests the 2 specific findings described in the set of medical criteria for that listed impairment.” SSR 83-19, 3 1983 WL 31248, at *2. 4 The ALJ need not “state why a claimant failed to satisfy every different section of the 5 listing of impairments.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (finding ALJ 6 did not err in failing to state what evidence supported conclusion that, or discuss why, claimant’s 7 impairments did not meet or exceed Listings). 8 Listing 1.04 provides: 9 1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: 10 11 12 13 A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); 14 or 15 17 B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; 18 or 19 C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b. 16 20 21 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. 22 The Court agrees with defendants that the medical evidence in the record does not 23 support a finding at step three that the plaintiff’s condition medically meets or equals a listed 24 25 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS - 5 1 impairment, because there is insufficient evidence to show that the alleged impairment medically 2 meets or equals the criteria of 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. Tackett v. Apfel, 180 3 F.3d 1094, 1098 (9th Cir. 1999). Specifically, the record fails to show the existence of nerve root 4 compression (Listing 1.04A), spinal arachnoiditis (Listing 1.04B), or pseudoclaudication (Listing 5 1.04C), or pseudoclaudication resulting in an inability to ambulate. See AR 381-82, 389, 393-94, 6 406, 480, 515, 517, 523, 525, 529, 530-31, 534, 558-60, 630-32, 638-39, 641, 646-48, 653-54, 7 668, 672-73, 677-78, 684, 686, 690-91, 709, 713-14. As plaintiff has not established the 8 evidentiary support necessary to meet the criteria of Listing 1.04A, 1.04B, or 1.04C, he ALJ did 9 not err in deciding against the plaintiff here at step three. 10 III. The ALJ’s RFC Assessment 11 The ALJ found plaintiff had the RFC to perform a modified range of light work. AR 25. 12 Plaintiff argues the ALJ erred in assessing him with this RFC, because it does not fully account 13 for all of his limitations – including headaches and his spinal conditions. Dkt. 13 at 8-9. 14 A claimant’s Residual Functional Capacity (RFC) assessment is used at step four of the 15 process to determine whether he or she can do his or her past relevant work, and at step five to 16 determine whether he or she can do other work. Social Security Ruling (SSR) 96-8p, 1996 WL 17 374184 *2. It is what the claimant “can still do despite his or her limitations.” Id. The ALJ does 18 not make a medical determination in the RFC evaluation; instead, the ALJ reviews all relevant 19 evidence, including medical information, lay witness testimony, pain that is reasonably 20 attributable to the medical condition, and subjective symptoms. Robbins v. Social Sec. Admin., 21 466 F.3d 880, 882-885 (9th Cir. 2006). When evaluating the RFC, it is unnecessary for the ALJ 22 to include medical evidence that the ALJ permissibly discounted. Batson v. Comm’r of the Soc. 23 Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 24 25 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS - 6 1 A claimant’s RFC is the maximum amount of work the claimant is able to perform based 2 on all of the relevant evidence in the record. Id. However, an inability to work must result from 3 the claimant’s “physical or mental impairment(s).” Id. Thus, the ALJ must consider only those 4 limitations and restrictions “attributable to medically determinable impairments.” Id. In assessing 5 a claimant’s RFC, the ALJ also is required to discuss why the claimant’s “symptom-related 6 functional limitations and restrictions can or cannot reasonably be accepted as consistent with the 7 medical or other evidence.” Id. at *7. 8 9 Specifically, plaintiff asserts that a more appropriate RFC would allow for him to take more frequent breaks while suffering from a headache, and that the RFC does not allow for any 10 additional restrictions based on his spinal conditions. But as discussed above, any impairment 11 plaintiff may have related to his headaches has not been shown to cause any actual work-related 12 limitations and therefore is not severe. In addition, plaintiff has not pointed to any specific 13 medical or other evidence in the record to indicate greater functional limitations based on his 14 spinal conditions is warranted. Accordingly, no error has been shown regarding the ALJ’s RFC 15 assessment. 16 17 18 19 CONCLUSION Based on the foregoing discussion, the Court finds the ALJ properly determined plaintiff to be not disabled. Defendant’s decision to deny benefits therefore is AFFIRMED. Dated this 28th day of November, 2017. 20 21 A 22 Theresa L. Fricke United States Magistrate Judge 23 24 25 ORDER AFFIRMING THE COMMISSIONER’S DECISION TO DENY BENEFITS - 7

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