United States District Court, W.D. Washington, Tacoma
CHRISTOPHER L. LARSEN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge.
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.
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.
AND PROCEDURAL HISTORY
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.
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,
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 administrative record.
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.
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.
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.
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.
“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.
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