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Price v. Berryhill

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

October 18, 2017

MARILYN L. PRICE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE.

         Marilyn L. Price appeals the ALJ's May 29, 2015, decision finding her not disabled. The ALJ found chronic fatigue syndrome, depressive disorder and adjustment disorder with anxious mood are severe impairments; Ms. Price can perform less than the full range of light work with additional mental and environmental limitations; and that she cannot perform past relevant work but can perform other work in the national economy. Tr. 25-37.

         Ms. Price contends the ALJ misevaluated the medical evidence, her testimony and the lay testimony. She also contends the evidence she submitted to the Appeals Council undermines the ALJ's disability determination. As relief, she asks the Court to reverse and remand the case for further proceedings. Dkt. 13 at 1, 18. For the reasons below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         DISCUSSION

         A. Evidence Presented to the Appeals Council

         After the ALJ issued the decision finding Ms. Price not disabled, Ms. Price requested review in the Appeals Council. Tr. 8. In support of her request, she submitted a number of medical records including a psychological evaluation performed on September 17, 2015, by Kimberly Wheeler, Ph.D. Tr. 2. The Appeals Council made all of Ms. Price's post-hearing medical submissions part of the record except for Dr. Wheeler's evaluation. Id. Ms. Price argues the Appeals Council should have made Dr. Wheeler's evaluation part of the record; she also argues Dr. Wheeler's evaluation undermines the ALJ's determination that she is not disabled. Dkt. 13 at 8-10.

         As to Ms. Price's first argument, the Commissioner contends Dr. Wheeler's evaluation is not part of the record and therefore the Court cannot consider it. Citing to Brewes v. Comm'r of Social Sec. Admin., 682 F.3d 1157 (9th Cir. 2011), the Commissioner contends “the administrative record includes evidence the Appeals Council considered.” Dkt. 14 at 6. In support of this contention, the Commissioner argues under 20 C.F.R. §§ 404.970(b), 416.1470(b), the Appeals Council only “considers” evidence that relates to the period on or before the date of the administrative hearing. Id. The Commissioner contends because the Appeals Council stated Dr. Wheeler's evaluation “is about a later time, ” and “does not affect the decision about whether you were disabled beginning on or before May 29, 2015, ” the Appeals Council did not “consider” the evaluation. Id. (referring to Tr. 2).

         The argument fails. The Appeals Council may deny a party's request for review or it may decide to review a case. 20 C.F.R. §§ 404.967, 416.1467. Here, the Appeals Council denied review. Tr. 1. The regulations the Commissioner relies upon―20 C.F.R. §§ 404.970(b) and 416.1470(b)― are titled “Cases the Appeals Council will review.” The title and plain language of both sections make clear that these sections regard only the circumstances under which the Appeals Council will, i.e., is required to, review a case. Id. But neither section applies to this case, a case in which the Appeals Council received new evidence and denied review.

         The Commissioner's interpretation of “considered” is also inconsistent with the regulatory scheme for requesting review. A claimant is entitled to file a written request for Appeals Council review. 20 C.F.R. §§ 404.968(a), 416.1468. The regulations further state “[a]ny documents or other evidence you wished to have considered by the Appeals Council should be submitted with your request for review.” Id. (emphasis added). The regulations thus clearly indicate the Appeals Council will consider evidence the claimant submits in support of a written request for Appeals Council review.

         Here, in denying review, the Appeals Council stated it “looked at” all of the medical records Ms. Price submitted including Dr. Wheeler's evaluation. Tr. 2. The record thus establishes the Appeals Council “considered” all of this evidence, a conclusion supported by its determination that Dr. Wheeler's evaluation is “information about a later time.” The record accordingly belies the Commissioner's claim that the Appeals Council did not “consider” Dr. Wheeler's evaluation.

         The Commissioner also argues the Court may not consider evidence the Appeals Council “excludes” or does not make part of the administrative record. Dkt. 14 at 6. The Commissioner argues under 42 U.S.C. § 405(g) the Commissioner has the sole authority to create and certify the administrative record. Section 405(g) states “[a]s part of the Commissioner's answer, the Commissioner of Social Security shall file a certified copy of the transcript of the record.” This section only directs the Commissioner to submit the complete administrative record, and to certify that it is complete and accurate. But it contains nothing indicating the Commissioner can pick and choose what evidence presented to the ALJ or Appeals Council makes it into the record as the Commissioner implies.

         In short, nether the law nor the record support the Commissioner's contentions that Dr. Wheeler's evaluation is not part of the administrative record because the Appeals Council did not “consider” it, and because § 405(g) grants the Commissioner carte blanche to pick and choose what evidence makes it into the record. The record clearly establishes Dr. Wheeler's evaluation was submitted and considered by the Appeals Council in denying review. Because the Appeals Council considered the evaluation, the Court may also consider it. Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n. 2 (9th Cir. 2007). See also Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (“We properly may consider the additional materials because the Appeals Council addressed them in the context of denying Appellant's request for review.”).”

         As the Court may consider, Dr. Wheeler's evaluation, the Court turns to Ms. Price's second argument: that the Court should remand the case because the evaluation undermines the ALJ's disability determination. The Commissioner does not analyze whether Dr. Wheeler's evaluation undermines the ALJ's disability determination. Dkt. 14 at 4-5. Although the Commissioner's lack of discussion amounts to a concession, the Court has reviewed Dr. Wheeler's evaluation and concludes the ALJ's disability determination is not supported by substantial evidence.

         Dr. Wheeler performed a Department of Social and Health Services psychological examination about four months after the ALJ issued her decision. Dkt. 13 (Appendix 1). The doctor diagnosed Ms. Wheeler with depression and generalized anxiety. These are not new disorders that popped up after the ALJ issued her decision, but are disorders that are consistent with the ALJ's determination that depressive disorder and adjustment disorder with anxious mood are severe impairments. Dr. Wheeler's clinical interview also indicates the doctor evaluation was not a snap-shot limited only to the date of the evaluation. Rather Dr. Wheeler, outlined Ms. Price's history from childhood and how she began having problems starting in 2009. Dr. Wheeler opined Ms. Price was markedly limited in her ability to adapt to changes in a routine work setting; communicate and perform effectively in a work setting; and complete a normal work day and work week without interruptions from psychologically based symptoms. Id. at 3. The doctor also opined Ms. Price was moderately limited in her ability to understand, remember, and persist in tasks following very short and simple instructions; perform activities within a schedule, ...


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