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Wayne F. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

August 7, 2019

WAYNE F., [1] Plaintiff,


          Jolie A. Russo United States Magistrate Judge

         Plaintiff Wayne F. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his 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 is remanded for further proceedings.


         Born in 1968, plaintiff alleges disability beginning October 1, 2013, due to severe back pain and hypertension.[2] Tr. 176, 206. On June 9, 2017, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 36-63. On September 25, 2017, the ALJ issued a decision finding plaintiff not disabled. Tr. 13-27. After the Appeals Council denied his request for review, plaintiff filed a complaint in this Court. Tr. 1-6.


         At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 15. At step two, the ALJ determined the following impairments were medically determinable and severe: “hypertension; diabetes mellitus; umbilical hernia; chronic cholecystitis; obesity; degenerative disc disease; left shoulder arthrosis; obstructive sleep apnea; fibromyalgia.” 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. 17.

         Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved that plaintiff had the residual functional capacity (“RFC”) to perform light work as defined by 20 C.F.R. § 404.1567(b) except:

he is limited to lifting 20 pounds occasionally, 10 pounds frequently; he is limited to carrying 20 pounds occasionally, 10 pounds frequently; he is limited to sitting up to 6 hours in an 8-hour workday; he is limited to standing and walking 2 hours total in an 8-hour workday; he is limited to pushing and pulling as much as lifting and carrying; he is limited to occasionally reaching overhead with the left upper extremity; he is precluded from climbing ladders and scaffolds; he is limited to climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling at the occasional level; he is limited to no concentrated exposure to hazards, such as unprotected heights, heavy operating machinery, or operating a motor vehicle; he is limited to no concentrated exposure to airborne irritants, such as dusts, fumes, gases, and odors; he is limited to no exposure to machinery causing vibrations.

Tr. 19.

         At step four, the ALJ determined plaintiff was unable to perform any past relevant work. Tr. 25. At step five, the ALJ concluded, based on the VE's testimony, that plaintiff could perform a significant number of jobs in the national economy despite his impairments, such as ticket seller, cashier, and gate guard. Tr. 26-27.


         Plaintiff argues that the ALJ erred by: (1) finding his carpal tunnel and depression non-severe at step two; (2) discrediting his subjective symptom testimony; (3) discrediting the lay testimony of Sarah H.; and (4) rejecting the medical opinion of Matthew Chan, M.D.

         I. Step Two Finding

         Plaintiff asserts the ALJ failed to find his carpal tunnel syndrome and depression severe. At step two, the ALJ determines whether the claimant has an impairment that is both medically determinable and severe. 20 C.F.R. § 404.1520(c). An impairment is severe if it “significantly limit[s]” the claimant's ability to do basic work activities. 20 C.F.R. § 404.1521. 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 omitted).

         The ALJ thoroughly summarized medical evidence pertaining to plaintiff's physical and mental impairments, and found that his hypertension, diabetes, fibromyalgia, hernia and cholecystitis, obesity, degenerative disc disease, left shoulder arthrosis, and obstructive sleep apnea were medically determinable and severe at step two. Tr. 15-17. The ALJ also discussed plaintiff's depression and carpal tunnel syndrome, and determined both were medically determinable but non-severe because “there is no evidence of work-related limitations” from these conditions.[3] Id. As such, any purported error was harmless because step two was decided in plaintiff's favor with regard to other ailments. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017).

         This is especially true considering plaintiff neglected to address how the ALJ's alleged error was harmful. See McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (as amended) (party seeking reversal bears the burden of establishing how the alleged error was harmful). Although plaintiff relies on his own hearing testimony, and records establishing diagnoses of depression and carpal tunnel syndrome, he does not identify any medical evidence evincing functional limitations arising from or relating to these impairments. Pl.'s Opening Br. 5-6 (doc. 16); Pl.'s Reply Br. 1 (doc. 21).[4] Moreover, plaintiff never sought counseling or therapy related to his depression, despite the fact that his rheumatologist, Rashmi Shah, M.D., referred him to such services as part of his fibromyalgia treatment plan. Tr. 988.

         Therefore, the ALJ adequately accounted for plaintiff's medically determinable and severe impairments at step two. Regardless, because the ALJ's sequential evaluation properly considered the effects of all of plaintiff's alleged symptoms, any purported error at step two was harmless. Burch v. ...

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