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Larsen v. Berryhill

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

May 2, 2017

CHRISTOPHER L. LARSEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge.

         Plaintiff Christopher L. Larsen filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's 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. 7.

         After reviewing the record, the Court concludes in light of new medical evidence submitted to the Appeals Council, substantial evidence does not support the Administrative Law Judge (“ALJ”) assessment of the residual functional capacity (“RFC”) or decision finding Plaintiff not disabled at Steps 4 and 5 of the sequential evaluation process. The Court further concludes the ALJ erred when he failed to discuss significant, probative evidence contained in the opinions of non-examining physicians Drs. Eather and Hurley, and erred when he failed to properly consider the medical opinion evidence of Dr. Griffin, Ph.D. Had the ALJ properly considered this medical opinion evidence, the residual functional capacity may have included additional limitations. The ALJ's error is therefore harmful, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On September 6, 2012, Plaintiff filed an application for SSI and DIB, alleging disability as of May 3, 2009. See Dkt. 15, Administrative Record (“AR”) 124-130. The application was denied upon initial administrative review and on reconsideration. See Id., 131-139. A hearing was held before ALJ Robert P. Kingsley on January 22, 2015. See AR 28. In a decision dated May 26, 2015, the ALJ determined Plaintiff was not disabled. See AR 28-39. Plaintiff sought review of the ALJ's decision and submitted new evidence to the Appeals Council, including physical functional evaluations by Drs. Makristy Caratao, M.D., and Lindsay Newton, M.D. 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 1-4; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains (1) the administrative record, including evaluations by Drs. Caratao and Newton, fails to provide substantial evidence to support the ALJ's decision to deny disability benefits; (2) the ALJ erred in discounting or outright failing to review medical opinion evidence; (3) the ALJ erred in failing to provide clear and convincing reasons for finding Plaintiff not entirely credible; and (3) the ALJ erred in basing his Step Five finding on his erroneous RFC assessment. Dkt. 13, pp. 1-20.

         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 July 7, 2013 and June 11, 2015, Drs. Caratao and Newton, respectively, completed Physical Functional Evaluations of Plaintiff. AR. 1536-1543. These evaluations were not submitted to the ALJ, but were submitted to the Appeals Council. See AR. 1-6. The Appeals Council considered both doctors' evaluations and found the new evidence did not provide a basis for changing the ALJ's decision. AR. 2. Plaintiff argues, in light of these doctors' opinions, substantial evidence does not support the ALJ's decision finding Plaintiff not disabled at Steps 4 and 5 of the sequential evaluation process. Dkt. 913, pp. 7-13.

         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 Drs. Caratao and Newton's evaluations were 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.

         On July 19, 2013, Dr. Caratao completed an evaluation wherein he diagnosed Plaintiff with moderate to marked cerebral artery stenosis and cerebrovascular incident, low back pain, and right shoulder/scapular pain. AR. 1537. Dr. Caratao opined that these conditions would affect work activities such as standing, walking, lifting, carrying, handling, pushing, pulling, reaching, stooping, and crouching. AR. 1537. Based on these findings, Dr. Caratao ultimately opined Plaintiff was limited to sedentary work. See AR. 1537-1538.

         On June 11, 2015, Dr. Newton also completed an evaluation of Plaintiff. AR. 1539-1543. After conducting a full examination of Plaintiff, including testing Plaintiff's range of joint motion, Dr. Newton diagnosed Plaintiff with marked Factor V Leiden and severe left-sided weakness as a result of prior cerebrovascular accidents. AR. 1539-40. Dr. Newton found Plaintiff's conditions prevented him from performing basic work-related activities such as walking, lifting, carrying, handling, pushing, pulling, and crouching, and further made Plaintiff “unable to meet the demands of sedentary work.” AR. 1540-41.

         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 written decision must state reasons for disregarding [such] evidence.” Flores, 49 F.3d at 571.

         Defendant argues the ALJ's decision should be affirmed because Drs. Caratao and Newton's opinions do not change the ALJ's decision. See Dkt. 18, pp. 15-17. Specifically, Defendant contends that other evidence contained in the record as a whole provides a substantial basis to support the ALJ's decision and findings. Id. However, because Drs. Caratao and Newton's opinions were not submitted to the ALJ, the ALJ did not provide any reasons for discounting their opinions. See AR 28-39. The Court cannot “affirm the decision of an agency on a ground the agency did not invoke in making its decision.” Stout v. Comm'r of Soc. Sec. Admin, 454 F.3d 1050, 1054 (9th Cir. 2006). “Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - -not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of SSA, 554 F.3d 1219, ...


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