United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
Sherry S. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Title
II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and
alleges that the Administrative Law Judge (“ALJ”)
erred in: (1) finding that Plaintiff's knee disorder was
“non-severe”; (2) failing to credit
Plaintiff's testimony as true; (3) failing to credit the
statements of Plaintiff's brother; (4) crafting
Plaintiff's residual functional capacity
(“RFC”); and (5) determining substantial gainful
activity (“SGA”). Because there is substantial
evidence in the record to support the ALJ's findings and
errors, if any, were harmless, the Commissioner's
decision is AFFIRMED.
AND FACTUAL BACKGROUND
applied for DIB and SSI on July 14, 2015, alleging disability
since June 15, 2015. Tr. 213-23, 36. Both claims were denied
initially and upon reconsideration. Tr. 92-109. Plaintiff
timely requested a hearing before an ALJ and appeared before
the Honorable Linda Thomasson on June 9, 2017. Tr. 159-60,
55-91. ALJ Thomasson denied Plaintiff's claim by a
written decision dated August 28, 2017. Tr. 33-49. Plaintiff
sought review from the Appeals Council and was denied on July
17, 2018, rendering the ALJ's decision final. Tr. 207-12,
1-7. Plaintiff now seeks judicial review of the ALJ's
was 36 years old at the time of her alleged disability onset
and 38 at the time of her hearing. See tr. 61, 36,
55. Plaintiff has a GED and an associate's degree in
business. She has engaged in past work doing data input and
research and she has clerked at a community college and a
hotel., . Tr. 28, 47, 61-62, 38, 67-68, 251. Plaintiff
alleges disability due to fibromyalgia, idiopathic
hypersomnia, polyarthralgia, edema, and nerve damage. Tr.
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. See 42 U.S.C. § 405(g);
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d
1190, 1193 (9th Cir. 2004). “Substantial evidence is
‘more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'” Hill v. Astrue, 698 F.3d
1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, the court reviews the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989) (citing Martinez v. Heckler, 807 F.2d
771, 772 (9th Cir. 1986)). “‘If the evidence can
reasonably support either affirming or reversing,' the
reviewing court ‘may not substitute its judgment'
for that of the Commissioner.” Gutierrez v.
Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th
Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715,
720-21 (9th Cir. 1996)).
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2012). The burden of proof rests on
the claimant for steps one through four, and on the
Commissioner for step five. Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step
five, the Commissioner's burden is to demonstrate that
the claimant can make an adjustment to other work existing in
significant numbers in the national economy after considering
the claimant's RFC, age, education, and work experience.
20 C.F.R. § 404.1520(a)(4)(v). If the
Commissioner fails to meet this burden, then the claimant is
considered disabled. Id.
Plaintiff's Knee Disorder
argues that the ALJ erred both by finding that
Plaintiff's knee disorder was non-severe and by
minimizing the impact of the knee disorder on Plaintiff's
ability to work, especially when combined with the effects of
her obesity. Pl.'s Br. 5, ECF No. 10.
two, the ALJ must assess whether the claimant's
impairment or combination of impairments is severe.
Tackett, 180 F.3d at 1098; see 20 C.F.R.
§ 404.1520(c). If not, the claimant is not disabled.
Id. If so, the ALJ identifies the severe
impairment(s) then continues to step three. Id. A
severe impairment is an “impairment or combination of
impairments which significantly limits [a claimant's]
physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c),
416.920(c). “An impairment is not severe if it is
merely a ‘slight abnormality (or combination of slight
abnormalities) that has no more than a minimal effect on the
ability to do basic work activities.'” Webb v.
Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting
Social Security Ruling 96-3p, 1996 WL 374181). In determining
the claimant's RFC at later steps, the ALJ must consider
the “total limiting effects” of all of the
medically determinable impairments, both “severe”
and “non-severe, ” including the effect of pain.
20 C.F.R. §§ 404.1545(e), 416.945(e); see
Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d
685, 690 (9th Cir. 2009) (quoting Embrey v. Bowen,
849 F.2d 418, 422 (9th Cir. 1988)). Where an ALJ errs in
omitting a severe impairment at step two, the error is
harmless so long as the ALJ considers all of the
claimant's functional limitations at subsequent steps
(including those caused by the omitted severe impairment).
Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
the ALJ found that Plaintiff's knee disorder was
non-severe but considered it in conjunction with her severe
impairments. Tr. 39. Substantial evidence exists in the
record to support the ALJ's finding. Even if the ALJ
erred, such error would be harmless because the ALJ found in
Plaintiff's favor at step two and considered her knee
disorder in determining her RFC in later steps. The ALJ found
that Plaintiff complained of bilateral knee pain, especially
in her right knee, during activity in March 2016. Tr. 39.
(citing tr. 556). There was, however, no sign of inflammatory
arthritis and her symptoms were most consistent with overuse
or mechanic arthritis. Id. June 2016 x-rays were
unremarkable. Tr. 39 (citing tr. 539, 546-47). In August
2016, she reported loss of balance due to her left knee
giving way and was referred to a magnetic resonance imaging
scan (“MRI”). Tr. 39 (citing tr. 570). Her left
knee was tender along the anterior joint line but had ...