United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge
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.
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.
AND PROCEDURAL HISTORY
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,
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.
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
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
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,
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
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.
“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 ...