United States District Court, D. Oregon
CATHERINE L. E.,  Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
A. Russo United States Magistrate Judge.
Catherine E. brings this action for judicial review of the
final decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
Title II Disability Insurance Benefits. All parties have
consented to allow a Magistrate Judge enter final orders and
judgment in this case in accordance with Fed.R.Civ.P. 73 and
28 U.S.C. § 636(c). For the reasons set forth below, the
Commissioner's decision is reversed and this case
remanded for further proceedings.
1955, plaintiff alleges disability beginning November 15,
2010,  due to fibromyalgia, hepatitis C, back
pain, migraines, chronic fatigue, and depression. Tr. 36-37,
144-45, 164. On June 24, 2016, the ALJ issued a decision
finding plaintiff not disabled prior to the date last insured
(“DLI”) of December 31, 2011. Tr. 18-28. After
the Appeals Council denied her request for review, plaintiff
filed a complaint in this Court. Tr. 1-6.
one of the five step sequential evaluation process, the ALJ
found that plaintiff had not engaged in substantial gainful
activity “from her amended alleged onset date of
November 15, 2010 through her DLI of December 31,
2011.” Tr. 20. At step two, the ALJ determined
plaintiff's fibromyalgia, degenerative disc disease of
the lumbar spine, right carpal tunnel release, and left
carpal tunnel syndrome were medically determinable and
severe. Id. At step three, the ALJ found
plaintiff's impairments, either singly or in combination,
did not meet or equal the requirements of a listed
impairment. Tr. 22.
she did not establish presumptive disability at step three,
the ALJ continued to evaluate how plaintiff's impairments
affected her ability to work. The ALJ resolved that plaintiff
had the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 404.1567(b)
except she: “is able to occasionally climb stairs and
ramps but should never climb ladders, ropes, and
scaffolds”; “can occasionally balance, stoop,
kneel, crouch, and crawl”; and “will need an
assistive device for ambulation [and] can frequently handle
and finger bilaterally.” Tr. 22.
four, the ALJ determined plaintiff was capable of performing
her past relevant work as a unit coordinator. Tr. 27.
argues that the ALJ erred by: (1) failing to find her
depression and obesity as medically determinable at step two;
(2) rejecting the medical opinion of treating doctor Kimberly
Kisor, M.D., and (3) discrediting her subjective symptom
Step Two Finding
contends the ALJ erroneously omitted her depression and
obesity as medically determinable impairments. At step two,
the ALJ determines whether the claimant has an impairment, or
combination of impairments, that is both medically
determinable and severe. 20 C.F.R. § 404.1520(c). An
impairment is medically determinable if it is diagnosed by an
acceptable medical source and based upon acceptable medical
evidence, such as “signs, symptoms, and laboratory
findings.” SSR 96-4p, available at 1996 WL
374187; 20 C.F.R. § 404.1513(a). An impairment is severe
if it significantly limits the claimant's ability to do
basic work activities, which are defined as “abilities
and aptitudes necessary to do most jobs.” 20 C.F.R.
§ 404.1521; Webb v. Barnhart, 433 F.3d 683, 686
(9th Cir. 2005). The step two threshold is low; the Ninth
Circuit describes it as a “de minimus screening device
to dispose of groundless claims.” Smolen v.
Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation
preliminary matter, plaintiff did not include obesity as one
of her allegedly disabling impairments in applying for
benefits, nor did she ever seek treatment for any
obesity-related symptoms. Tr. 164, 228-799. As a result,
plaintiff's entire argument as to this issue is premised
on medical evidence demonstrating that, at 5' 5”
tall and approximately 200 pounds, she qualified as mildly
obese. Pl.'s Opening Br. 13 (doc. 12).
plaintiff's remaining step two challenge, the record
contains few references to depression, all but one of which
transpired outside of the adjudicative period. In January
2006, more than four years prior to the amended alleged onset
date, plaintiff presented to her general practitioner with
feelings of depression due to her ongoing physical
impairments and stressful work environment. Tr. 464. She was
diagnosed with depression at that time and prescribed Celexa.
Tr. 465. During late 2006 and early 2007, plaintiff continued
to report depression and obtained psychiatric counseling; she
was tapered off Celexa due to weight gain and started on a
new medication regime. Tr. 52-53, 399, 409, 411, 414-16,
418-19. By mid-2007, Dr. Kisor noted that plaintiff's
depression was “stable” and she encouraged
plaintiff to continue on her current mental health
medications, which were generally effective. Tr. 380, 389.
Except for a single instance in March 2009, plaintiff
thereafter did not report any mental health symptoms or seek
any mental health treatment until immediately prior to the
DLI. Tr. 325-68.
in December 2011, plaintiff presented to Dr. Kisor
complaining of nausea and bladder problems; she also reported
being “[v]ery depressed for some reason.” Tr.
325. Dr. Kisor did not perform a formal diagnostic assessment
or otherwise note any signs or symptoms, but nonetheless
listed “DEPRESSION, MAJOR, SINGLE EPISODE, ” as a
diagnosis. Id. The doctor did not refer plaintiff to
counseling or any other psychiatric treatment, and plaintiff
did not again report any depressive symptoms until her son
passed away in December 2012. Tr. 306, 312-25. Plaintiff did
not reinitiate mental health counseling until April 2016. Tr.
two, the ALJ thoroughly summarized medical evidence
pertaining to plaintiff's physical and mental
impairments, and found that plaintiff's fibromyalgia,
degenerative disc disease of the lumbar spine, right carpal
tunnel release, and left carpal tunnel syndrome were
medically determinable and severe. Tr. 20-22. As such,
“[a]ny alleged error at step two was harmless because
step two was decided in ...