6 UNITED STATES DISTRICT COURT AT TACOMA 8 PATRICIA W., 9 Plaintiff, CASE NO. C23-5056-GJL 10 v. 11 ORDER RE: SOCIAL SECURITY COMMISSIONER OF SOCIAL SECURITY, DISABILITY APPEAL 12 Defendant. 13
14 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of the 15 Commissioner’s denial of Plaintiff’s applications for disability benefits. Pursuant to 28 U.S.C. 16 § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented 17 to proceed before the undersigned Magistrate Judge. 18 Having considered the ALJ’s decision, the administrative record (AR), and all memoranda 19 of record, this matter is REVERSED and REMANDED for further administrative proceedings. 21 Plaintiff filed an application for Disability Insurance Benefits (DIB) and an application for 22 Supplemental Security Income (SSI) on September 10, 2020, alleging disability beginning June 1, 23 2020. AR 15. After the applications were denied at the initial level and on reconsideration, Plaintiff 1 requested a hearing before an Administrative Law Judge (ALJ). The ALJ held a hearing on 2 February 23, 2022, and took testimony from Plaintiff and a vocational expert (VE). AR 32–60. On 3 March 2, 2022, the ALJ issued a decision finding Plaintiff not disabled. AR 15–25. The Appeals
4 Council denied Plaintiff’s request for review on November 17, 2022, making the ALJ’s decision 5 the final decision of the Commissioner. AR 1–6; see 20 C.F.R. §§ 404.981, 416.1481. Plaintiff 6 appeals the denial of disability benefits to this Court. 8 Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s denial of 9 disability benefits if it is based on legal error or not supported by substantial evidence in the record. 10 See Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022). 12 The Commissioner follows a five-step sequential evaluation process for determining 13 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At steps one through three,
14 the ALJ found Plaintiff has not engaged in substantial gainful activity since the alleged onset date, 15 has one or more severe impairments, and does not have an impairment or combination of 16 impairments that meet or equal the criteria of a listed impairment. AR 17–19. The ALJ found 17 Plaintiff has the following severe impairments: generalized anxiety disorder; major depressive 18 disorder; and possible functional movement disorder. AR 17. 19 At step four, the ALJ found Plaintiff has the residual functional capacity (RFC) to perform 20 at full range of work at all exertional levels but with the following limitations: 21 she has sufficient concentration, persistence and pace to complete routine tasks for a normal workday and workweek with normal 22 breaks; should have only occasional interactions with the general public; can work with a few coworkers (defined as 5 or less); is able 23 to accept direction from supervisors; should be in a workplace with a routine and predictable work setting; and can adapt to minor 1 changes in the work setting and follow supervisor-set goals.
2 AR 19. With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. 3 AR 23. 4 At step five, the ALJ found Plaintiff capable of making a successful adjustment to other 5 work that exists in significant numbers in the national economy. AR 23–24. The ALJ thus 6 concluded Plaintiff has not been under a disability since the alleged onset date through the date of 7 the decision. AR 24. 9 Plaintiff raises the following issues on appeal: (1) Whether the ALJ properly found 10 Plaintiff’s migraines to be non-severe and (2) whether the ALJ properly rejected the physical 11 limitations offered by the state agency medical consultants and the consultative examiner. Plaintiff 12 requests remand for further administrative proceedings. The Commissioner argues the ALJ’s 13 decision has the support of substantial evidence and should be affirmed.
14 1. The ALJ’s consideration of Plaintiff’s migraines 15 Plaintiff argues the ALJ’s “minimal discussion” of Plaintiff’s migraines “is insufficient to 16 show that Plaintiff’s migraines were non-severe.” Dkt. 11, at 3–6. “An impairment or combination 17 of impairments can be found ‘not severe’ only if the evidence establishes a slight abnormality that 18 has ‘no more than a minimal effect on an individual’s ability to work.’” Smolen v. Chater, 80 F.3d 19 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling (SSR) 85-28). The ALJ found Plaintiff 20 “has a history of migraines” but found Plaintiff’s migraines to be not severe “in that they do not 21 cause more than minimal limitation of physical or mental ability to do basic work activities.” AR 22 18 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). 23 The ALJ considered testimony that she gets migraines about four days per week and 1 Plaintiff’s statements in September 2020 “that her migraines have been getting worse over the last 2 week” and that “amitriptyline was not helping her migraines in December of 2020, though she 3 previous[ly] reported improvement.” AR 21. However, the ALJ provided no discussion of
4 Plaintiff’s testimony or allegations describing the severity of symptoms and limitations from her 5 migraine impairment. 6 At the hearing, Plaintiff testified that, during a typical migraine, she sees stars, it feels like 7 someone is standing on her head, she feels it in her sinuses and around the back of her head, she 8 gets nauseous and light-headed when standing, and she has to cover her head “to keep the dark.” 9 AR 45–46. In a 2020 headache questionnaire, Plaintiff reported her migraines prevent her from 10 doing daily activities, make her nauseous, cause pain in her head and neck, blurred vision, and 11 ringing in her ears, and make her feel tired afterwards, which aftereffects “can last all day.” AR 12 325–26. The ALJ failed to explain how or why this evidence indicates Plaintiff’s migraines have 13 no more than a minimal effect on Plaintiff’s ability to work. See SSR 85-28. Therefore, the ALJ’s
14 evaluation of Plaintiff’s migraine impairment and conclusion that the impairment is not severe 15 lack the support of substantial evidence. 16 The Commissioner argues the ALJ’s step two conclusion “cannot form a basis for remand” 17 because the ALJ resolved step two in Plaintiff’s favor. Dkt. 14, at 2–3 (citing Buck v. Berryhill, 18 869 F.3d 1040, 1048–49 (9th Cir. 2017)). Step two “is not meant to identify the impairments that 19 should be taken into account when determining the RFC.” Buck, 869 F.3d at 1048. Rather, the ALJ 20 considers the limitations and restrictions imposed by all of a claimant’s impairments, even those 21 that are not severe, when assessing the RFC. 20 C.F.R. §§ 404.1545(e), 416.945(e); SSR 96-8p. 22 As a result, “[t]he RFC . . . should be exactly the same regardless of whether certain impairments 23 are considered ‘severe’ or not.” Buck, 869 F.3d at 1049 (emphasis in original).
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6 UNITED STATES DISTRICT COURT AT TACOMA 8 PATRICIA W., 9 Plaintiff, CASE NO. C23-5056-GJL 10 v. 11 ORDER RE: SOCIAL SECURITY COMMISSIONER OF SOCIAL SECURITY, DISABILITY APPEAL 12 Defendant. 13
14 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of the 15 Commissioner’s denial of Plaintiff’s applications for disability benefits. Pursuant to 28 U.S.C. 16 § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented 17 to proceed before the undersigned Magistrate Judge. 18 Having considered the ALJ’s decision, the administrative record (AR), and all memoranda 19 of record, this matter is REVERSED and REMANDED for further administrative proceedings. 21 Plaintiff filed an application for Disability Insurance Benefits (DIB) and an application for 22 Supplemental Security Income (SSI) on September 10, 2020, alleging disability beginning June 1, 23 2020. AR 15. After the applications were denied at the initial level and on reconsideration, Plaintiff 1 requested a hearing before an Administrative Law Judge (ALJ). The ALJ held a hearing on 2 February 23, 2022, and took testimony from Plaintiff and a vocational expert (VE). AR 32–60. On 3 March 2, 2022, the ALJ issued a decision finding Plaintiff not disabled. AR 15–25. The Appeals
4 Council denied Plaintiff’s request for review on November 17, 2022, making the ALJ’s decision 5 the final decision of the Commissioner. AR 1–6; see 20 C.F.R. §§ 404.981, 416.1481. Plaintiff 6 appeals the denial of disability benefits to this Court. 8 Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s denial of 9 disability benefits if it is based on legal error or not supported by substantial evidence in the record. 10 See Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022). 12 The Commissioner follows a five-step sequential evaluation process for determining 13 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At steps one through three,
14 the ALJ found Plaintiff has not engaged in substantial gainful activity since the alleged onset date, 15 has one or more severe impairments, and does not have an impairment or combination of 16 impairments that meet or equal the criteria of a listed impairment. AR 17–19. The ALJ found 17 Plaintiff has the following severe impairments: generalized anxiety disorder; major depressive 18 disorder; and possible functional movement disorder. AR 17. 19 At step four, the ALJ found Plaintiff has the residual functional capacity (RFC) to perform 20 at full range of work at all exertional levels but with the following limitations: 21 she has sufficient concentration, persistence and pace to complete routine tasks for a normal workday and workweek with normal 22 breaks; should have only occasional interactions with the general public; can work with a few coworkers (defined as 5 or less); is able 23 to accept direction from supervisors; should be in a workplace with a routine and predictable work setting; and can adapt to minor 1 changes in the work setting and follow supervisor-set goals.
2 AR 19. With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. 3 AR 23. 4 At step five, the ALJ found Plaintiff capable of making a successful adjustment to other 5 work that exists in significant numbers in the national economy. AR 23–24. The ALJ thus 6 concluded Plaintiff has not been under a disability since the alleged onset date through the date of 7 the decision. AR 24. 9 Plaintiff raises the following issues on appeal: (1) Whether the ALJ properly found 10 Plaintiff’s migraines to be non-severe and (2) whether the ALJ properly rejected the physical 11 limitations offered by the state agency medical consultants and the consultative examiner. Plaintiff 12 requests remand for further administrative proceedings. The Commissioner argues the ALJ’s 13 decision has the support of substantial evidence and should be affirmed.
14 1. The ALJ’s consideration of Plaintiff’s migraines 15 Plaintiff argues the ALJ’s “minimal discussion” of Plaintiff’s migraines “is insufficient to 16 show that Plaintiff’s migraines were non-severe.” Dkt. 11, at 3–6. “An impairment or combination 17 of impairments can be found ‘not severe’ only if the evidence establishes a slight abnormality that 18 has ‘no more than a minimal effect on an individual’s ability to work.’” Smolen v. Chater, 80 F.3d 19 1273, 1290 (9th Cir. 1996) (quoting Social Security Ruling (SSR) 85-28). The ALJ found Plaintiff 20 “has a history of migraines” but found Plaintiff’s migraines to be not severe “in that they do not 21 cause more than minimal limitation of physical or mental ability to do basic work activities.” AR 22 18 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). 23 The ALJ considered testimony that she gets migraines about four days per week and 1 Plaintiff’s statements in September 2020 “that her migraines have been getting worse over the last 2 week” and that “amitriptyline was not helping her migraines in December of 2020, though she 3 previous[ly] reported improvement.” AR 21. However, the ALJ provided no discussion of
4 Plaintiff’s testimony or allegations describing the severity of symptoms and limitations from her 5 migraine impairment. 6 At the hearing, Plaintiff testified that, during a typical migraine, she sees stars, it feels like 7 someone is standing on her head, she feels it in her sinuses and around the back of her head, she 8 gets nauseous and light-headed when standing, and she has to cover her head “to keep the dark.” 9 AR 45–46. In a 2020 headache questionnaire, Plaintiff reported her migraines prevent her from 10 doing daily activities, make her nauseous, cause pain in her head and neck, blurred vision, and 11 ringing in her ears, and make her feel tired afterwards, which aftereffects “can last all day.” AR 12 325–26. The ALJ failed to explain how or why this evidence indicates Plaintiff’s migraines have 13 no more than a minimal effect on Plaintiff’s ability to work. See SSR 85-28. Therefore, the ALJ’s
14 evaluation of Plaintiff’s migraine impairment and conclusion that the impairment is not severe 15 lack the support of substantial evidence. 16 The Commissioner argues the ALJ’s step two conclusion “cannot form a basis for remand” 17 because the ALJ resolved step two in Plaintiff’s favor. Dkt. 14, at 2–3 (citing Buck v. Berryhill, 18 869 F.3d 1040, 1048–49 (9th Cir. 2017)). Step two “is not meant to identify the impairments that 19 should be taken into account when determining the RFC.” Buck, 869 F.3d at 1048. Rather, the ALJ 20 considers the limitations and restrictions imposed by all of a claimant’s impairments, even those 21 that are not severe, when assessing the RFC. 20 C.F.R. §§ 404.1545(e), 416.945(e); SSR 96-8p. 22 As a result, “[t]he RFC . . . should be exactly the same regardless of whether certain impairments 23 are considered ‘severe’ or not.” Buck, 869 F.3d at 1049 (emphasis in original). Here, however, the 1 ALJ did not adequately consider the limitations and restrictions imposed by Plaintiff’s migraine 2 impairment. As discussed above, the ALJ failed to provide any discussion of Plaintiff’s testimony 3 and allegations regarding her migraine symptoms and limitations. The ALJ further failed to
4 consider the combined effect of Plaintiff’s migraine impairment and other impairments on 5 Plaintiff’s ability to perform basic work activities. See Smolen, 80 F.3d at 1290. Therefore, based 6 on the circumstances of this case, the Court cannot conclude the RFC would be exactly the same 7 had the ALJ found Plaintiff’s migraine impairment to be a severe impairment at step two. 8 For the reasons discussed above, the ALJ erred when evaluating Plaintiff’s migraine 9 impairment and did not sufficiently consider Plaintiff’s symptoms and limitations from this 10 impairment when assessing the RFC. This error was not harmless because it resulted in an RFC 11 determination that did not include all of the limitations supported by the record. 12 2. Remaining Issues 13 Plaintiff argues the ALJ erred in rejecting the physical limitations offered by the state
14 agency medical consultants and the consultative examiner. Dkt. 14, at 5–8. As the Court has found 15 reversible error in the ALJ’s evaluation of Plaintiff’s migraine impairment, the Court declines to 16 consider whether the ALJ erred in considering the opinions of the agency consultants and the 17 consultative examiner. Rather, the Court directs the ALJ to reevaluate the medical opinion 18 evidence and reassess the RFC as warranted by further consideration of the evidence. 19 /// 20 /// 21 /// 22 23 2 For the reasons set forth above, this matter is REVERSED and REMANDED for further 3 administrative proceedings.
4 DATED this 23rd day of August, 2023.
5 A 6 7 Grady J. Leupold United States Magistrate Judge 8
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