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Pearson v. Berryhill

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

March 27, 2017

SHELLEY LYNN PEARSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge

         Plaintiff Shelley Lynn Pearson filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her applications for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 5.

         The Court finds the Administrative Law Judge (“ALJ”) failed to consider the opinion of examining psychologist Dr. Dan Neims, Psy.D. when finding Plaintiff not disabled. Had the ALJ considered Dr. Neims' opinion, the residual functional capacity (“RFC”) assessment may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On June 20, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as of January 1, 2013. See Dkt. 7, Administrative Record (“AR”) 11. The application was denied upon initial administrative review and on reconsideration. See AR 11. A hearing was held before ALJ Virginia M. Robinson on December 17, 2014. See AR 29-83. In a decision dated April 24, 2015, the ALJ determined Plaintiff was not disabled. See AR 11-23. Plaintiff sought review of the ALJ's decision and submitted new evidence, including an evaluation completed by Dr. Dan Neims, Psy.D., to the Appeals Council. See AR 5, 7. The Appeals Council considered the new evidence and denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. See AR 1-5; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the administrative record, including an evaluation completed by Dr. Neims, fails to provide substantial evidence to support the ALJ's decision to deny disability benefits. See Dkt. 9, p. 1.

         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)).

         DISCUSSION

         I. Whether the ALJ's decision is supported by substantial evidence in light of the new evidence submitted to the Appeals Council and included in the administrative record.

         On April 3, 2015, Dr. Neims completed a Psychological/Psychiatric Evaluation of Plaintiff. AR 688-705. The evaluation was not submitted to the ALJ, but was submitted to the Appeals Council. See AR 1-5, 24-28. The Appeals Council considered Dr. Neims' evaluation and found the new evidence did not provide a basis for changing the ALJ's decision. AR 2. Plaintiff argues, in light of Dr. Neims' opinion, substantial evidence does not support the ALJ's decisions finding Plaintiff not disabled at Steps 4 and 5 of the sequential evaluation process. Dkt. 9, pp. 3-5.

         When the Appeals Council considers new evidence in denying review of the ALJ's decision, “the new evidence is part of the administrative record, which the district court must consider in determining whether the Commissioner's decision is supported by substantial evidence” and free of legal error. Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012); Taylor v. Commissioner of Social Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). As Dr. Neims' evaluation was considered by the Appeals Council, the Court must consider this evidence in determining if the ALJ's decision is supported by substantial evidence and free of legal error.

         Dr. Neims completed an evaluation wherein he found Plaintiff's ability to perform basic work activities was limited by her mental impairments. See AR 687-704. He opined Plaintiff had marked limitations in making simple work-related decisions, communicating and performing effectively in a work setting, completing a normal work day and work week without interruptions from psychologically based symptoms, maintaining appropriate behavior in a work setting, and setting realistic goals and planning independently. AR 690. He also found Plaintiff was moderately limited in her ability to understand, remember, and persist in tasks by following detailed instructions, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances without special supervision, perform routine tasks without special supervision, adapt to changes in a routine work setting, be aware of normal hazards and take appropriate precautions, and ask simple questions or request assistance. AR 690.

         The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 739 F.3d 1393, 1394-95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant probative evidence' without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent, 739 F.2d at 1395). The “ALJ's ...


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