United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING THE CASE WITH PREJUDICE
HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.
Higgins seeks review of the denial of her application for
Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB). Ms. Higgins contends the Appeals Council
erred in failing to properly evaluate the post-hearing
medical opinion of non-examining doctor Rox Burkett, M.D.
Dkt. 11. Ms. Higgins also contends the ALJ erred in:
evaluating the medical opinions of examining doctor Paul
Kornberg, M.D. and treating doctor Kenneth M. Louis, M.D.;
evaluating her own symptom testimony; and finding she could
perform past work at step four as well as other work in the
national economy at step five. Id. Ms. Higgins
contends the ALJ should reverse and remand this case for an
award of benefits or, alternatively, for further
administrative proceedings. Dkt. 11 at 2. As discussed below,
the Court AFFIRMS the Commissioner's
final decision and DISMISSES the case with
2012, Ms. Higgins applied for DIB and in July 2012, applied
for SSI. Tr. 26. Both applications allege disability as of
January 3, 2012. Tr. 26. Ms. Higgins' applications were
denied initially and on reconsideration. Tr. 26. After the
ALJ conducted a hearing on January 12, 2015, the ALJ issued a
decision finding Ms. Higgins not disabled. Tr. 26-40.
the five-step disability evaluation process,  the ALJ found:
Step one: Ms. Higgins has not engaged in
substantial gainful activity since January 3, 2012, the
alleged onset date.
Step two: Ms. Higgins has the following
severe impairments: degenerative disc disease of the cervical
and lumbar spine (status/post cervical and lumbar fusion
surgeries), osteoporosis of the hips and feet, and migraine
Step three: These impairments do not meet or
equal the requirements of a listed impairment.
Residual Functional Capacity (RFC): Ms.
Higgins can perform light work except she can never climb
ladders, ropes or scaffolding. She can occasionally balance,
stoop, kneel, crouch, crawl, and climb ramps or stairs. She
can occasionally reach overhead bilaterally. She should avoid
working with vibrating tools, machines, and vehicles. She
should avoid hazardous working conditions, such as proximity
to unprotected heights and moving machinery. She is limited
to occasional exposure to bright lights or loud noise. She is
limited to tasks that do not require looking overhead more
than occasionally, or rotating her head more than 45 degrees.
Step four: Ms. Higgins can perform past
relevant work as a receptionist, data entry clerk, and police
aide and, as such, she is not disabled.
Step five: Alternatively, as there are jobs
that exist in significant numbers in the national economy
that Ms. Higgins can perform, including telephone information
clerk, she is not disabled.
Tr. 26-40. The Appeals Council denied Ms. Higgins'
request for review making the ALJ's decision the
Commissioner's final decision. Tr. 1-6.
Medical Opinion Evidence
must provide “clear and convincing reasons” to
reject the uncontradicted opinion of a treating or examining
doctor. Lester v. Chater, 81 F.3d 821, 830, 831 (9th
Cir. 1996). When contradicted, a treating or examining
doctor's opinion may not be rejected without
“specific and legitimate reasons” that are
supported by substantial evidence in the record. Id.
Rox Burkett, M.D.
Higgins contends the Appeals Council erred in failing to
properly consider Dr. Burkett's April 2015 opinion in
denying review of the ALJ's decision. Dkt. 11 at 5-6. The
Court rejects this argument.
Burkett's opinion post-dates the ALJ's decision and
was submitted for the first time to the Appeals Council by
Ms. Higgins in requesting review of the ALJ's decision.
Tr. 575-79. When the Appeals Council denies a request for
review, it is a non-final agency action not subject to
judicial review because the ALJ's decision becomes the
final decision of the Commissioner. Taylor v.
Commissioner of Social Sec. Admin., 659 F.3d 1228, 1231
(9th Cir. 2011). Thus, the Court lacks jurisdiction to
consider whether the Appeals Council properly considered Dr.
Burkett's post-hearing opinion in denying Ms.
Higgins' request for review. That said, where, as here
“the Appeals Council considers new evidence in deciding
whether to review a decision of the ALJ, that evidence
becomes part of the administrative record, which the district
court must consider in determining whether the