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Neuhauser v. Colvin

United States District Court, W.D. Washington, Tacoma

April 1, 2015

SEAN C. NEUHAUSER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

KAREN L. STROMBOM, Magistrate Judge.

Plaintiff has brought this matter for judicial review of defendant's denial of his application for disability insurance benefits. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule MJR 4(a)(4) and as authorized by Mathews, Secretary of H.E.W. v. Weber , 423 U.S. 261 (1976). After reviewing the parties' briefs and the remaining record, the undersigned submits the following Report and Recommendation for the Court's review, recommending that for the reasons set forth below, defendant's decision to deny benefits be reversed and this matter be remanded for further administrative proceedings.

FACTUAL AND PROCEDURAL HISTORY

On July 30, 2012, plaintiff filed an application for disability insurance benefits alleging disability as of January 15, 2009. See Dkt. 7, Administrative Record ("AR") 27. That application was denied upon initial administrative review on October 24, 2012, and on reconsideration on December 12, 2012. See id. A hearing was held before an administrative law judge ("ALJ") on June 12, 2013, at which plaintiff, represented by counsel, appeared and testified, as did a lay witness. See AR 57-81.

In a decision dated July 3, 2013, the ALJ determined plaintiff to be not disabled. See AR 27-52. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on April 14, 2014, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1; 20 C.F.R. § 404.981. On May 21, 2014, plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. See Dkt. 1. The administrative record was filed with the Court on August 21, 2014. See Dkt. 7. The parties have completed their briefing, and thus this matter is now ripe for the Court's review.

Plaintiff argues defendant's decision to deny benefits should be reversed and remanded for further administrative proceedings, because: (1) the ALJ erred in failing to properly consider all of the evidence in the record concerning plaintiff's social functional limitations; (2) the ALJ's decision is not supported by substantial evidence in light of additional evidence submitted to the Appeals Council; and (3) a disability rating decision from the Veterans Administration ("VA") also submitted to the Appeals Council warrants additional consideration. For the reasons set forth below, the undersigned recommends defendant's decision to deny benefits be reversed and this matter be remand for further consideration of the VA's rating decision.

DISCUSSION

The determination of the Commissioner that a claimant is not disabled must be upheld by the Court, if the "proper legal standards" have been applied by the Commissioner, and the "substantial evidence in the record as a whole supports" that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Commissioner of Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991) ("A decision supported by substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.") (citing Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987)).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at 1193 ("[T]he Commissioner's findings are upheld if supported by inferences reasonably drawn from the record."). "The substantial evidence test requires that the reviewing court determine" whether the Commissioner's decision is "supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required." Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). "If the evidence admits of more than one rational interpretation, " the Commissioner's decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) ("Where there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made.") (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).[1]

Defendant employs a five-step "sequential evaluation process" to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520. If the claimant is found disabled or not disabled at any particular step thereof, the disability determination is made at that step, and the sequential evaluation process ends. See id. If a disability determination "cannot be made on the basis of medical factors alone at step three of that process, " the ALJ must identify the claimant's "functional limitations and restrictions" and assess his or her "remaining capacities for work-related activities." Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 *2. A claimant's residual functional capacity ("RFC") assessment is used at step four of the sequential disability evaluation process to determine whether he or she can do his or her past relevant work, and at step five to determine whether he or she can do other work. See id.

The ALJ in this case found plaintiff had the mental residual functional capacity to:

... understand, remember, and carry out simple instructions. He can make simple work-related decisions, can tolerate changes in a routine work setting, and can respond appropriately to supervision and co-workers. He can tolerate superficial and incidental contact with the general public.

AR 34-35 (emphasis in original). If a claimant cannot perform his or her past relevant work, at step five of the disability evaluation process the ALJ must show there are a significant number of jobs in the national economy the claimant is able to do. See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. § 404.1520(d), (e). The ALJ can do this through the testimony of a vocational expert or by reference to defendant's Medical-Vocational Guidelines (the "Grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000); Tackett, 180 F.3d at 1100-1101. Here at step five, the ALJ found plaintiff to be capable of performing other jobs existing in significant numbers in the national economy pursuant to the Grids, and therefore not disabled. See AR 50-52.

As indicated above, after the ALJ issued his decision in this case a VA disability rating decision dated January 14, 2014, was submitted to the Appeals Council. See Dkt. 10-1. That decision states plaintiff's posttraumatic stress disorder, "which is currently 50 percent disabling, is increased to 70 percent effective January 30, ...


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