United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see Dkt. Nos. 11, 12, 13).
After considering and reviewing the record, the Court finds that plaintiff has failed to provide good cause for her failure to include new evidence into the record before the ALJ and to the Appeals Council. Therefore, such new evidence should not be considered by the Court. Furthermore, the ALJ did not err when reviewing the medical evidence; he supported the rejection of Dr. O'Keefe's opinion and did not fail in his duty to develop the record. Because, in addition, the ALJ's credibility determination is supported by substantial evidence in the record, this matter should be affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
Plaintiff, KITTY SNELL, was born in 1952 and was 58 years old on the alleged date of disability onset of February 1, 2011 ( see Tr. 188). Plaintiff has at least a high school education, and has past relevant work as a bar tender, short order cook, janitor, and bar owner, which included duties such as "hiring, firing, bookkeeping, receiving orders, ordering, maintenance, [and] arranging for day to day operations" ( see Tr. 26, 41, 199). At the time of the hearing, plaintiff was living with her partner, who supported her ( see Tr. 45).
Plaintiff has at least the severe impairments of degenerative disc disease and osteoarthritis of the right ankle (20 CFR 404.1520(c)) (Tr. 19).
Plaintiff protectively filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act on July 14, 2011 ( see Tr. 188-92). The application was denied initially and following reconsideration (Tr. 117-19, 124-25). Plaintiff's requested hearing was held before Administrative Law Judge Tom L. Morris ("the ALJ") on September 10, 2012 ( see Tr. 33-90). On October 29, 2012, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 14-32).
On May 31, 2013, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-6). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in July, 2013 ( see Dkt. No. 1). Defendant filed the sealed administrative record regarding this matter ("Tr.") on September 23, 2013 ( see Dkt. No. 8).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the exhibits attached to Plaintiff's Brief are new evidence which should be considered; (2) Whether or not the ALJ fulfilled his duty to fully develop the record due to time limits on the hearing; (3) Whether or not the ALJ properly developed the record to find plaintiff can return to past work; (4) Whether or not the ALJ properly found plaintiff not credible; and (5) Whether or not the ALJ's RFC includes all limitations supported by the record ( see Dkt. No. 11, p. 1).
Defendant summarizes the issues raised by plaintiff to be: (1) Did the ALJ properly evaluate the medical evidence of record when determining plaintiff's residual functional capacity; (2) Does substantial evidence support the ALJ's findings that plaintiff's allegations of disabling limitations were not credible; and (3) Did the ALJ consider a fully developed record when finding that plaintiff could perform both her past relevant work and other work in the national economy (Dkt. No. 12, p. 1).
The Court will follow plaintiff's organization. And, it should be noted, that it is helpful to the Court when the parties use the same organization, as it makes responding to the issues raised much more straight forward. Since plaintiff raises the issues on appeal, generally speaking, defendant should respond to those issues, as raised.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "relevant evidence as a reasonable mind might accept as adequate to support a ...