United States District Court, W.D. Washington, Seattle
MARILYN L. PRICE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING THE COMMISSIONER AND REMANDING FOR
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE.
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.
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.
Evidence Presented to the Appeals Council
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.
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).
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
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
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.
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.
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
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.
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,