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Higgins v. Berryhill

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

September 13, 2017

TEFFONIE HIGGINS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION AND DISMISSING THE CASE WITH PREJUDICE

          HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.

         Teffonie 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 prejudice.

         BACKGROUND

         In May 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 ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [2] 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 headaches.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[3]
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.[4]

         DISCUSSION

         A. Medical Opinion Evidence

         The ALJ 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.

         1. Rox Burkett, M.D.

         Ms. 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.

         Dr. 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 Commissioner's ...


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