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Meeker v. Berryhill

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

December 22, 2017

MARY A. MEEKER, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Mary A. Meeker 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. 22.

         After considering the record, the Court cannot determine whether the decision by the Administrative Law Judge (“ALJ”) is supported by substantial evidence because an opinion from Plaintiff's treating therapist may have been omitted from the administrative record. Had the ALJ considered this evidence, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, 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.


         On May 7, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as of December 31, 2009.[1] See Dkt. 8, Administrative Record (“AR”) 19. The applications were denied upon initial administrative review and on reconsideration. See AR 19. ALJ Robert P. Kingsley held a hearing on August 25, 2015. AR 52-89. In a decision dated October 14, 2015, the ALJ determined Plaintiff to be not disabled. AR 19-34. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See AR 1-7; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to consider an opinion by Steve Adams, Plaintiff's treating therapist and case manager; (2) not giving specific and legitimate reasons to reject the medical opinion of examining physician, Dr. Loren W. McCollom, Ph.D.; (3) failing to find Plaintiff's bipolar disorder was a severe impairment at Step Two; (4) not providing germane reasons to reject three lay witness statements; (5) not giving clear and convincing reasons to discredit Plaintiff's subjective symptom testimony; (6) failing to include limitations in Plaintiff's RFC reflecting side effects from her medications; and (7) finding Plaintiff could perform occupations requiring frequent or constant reaching, and frequent or constant handling, despite the ALJ's decision to give great weight to a physician who found Plaintiff would “seldom” reach and “occasionally” handle. Dkt. 10.

         Upon reviewing the administrative record and the parties' briefs, the Court discovered the administrative record did not contain Mr. Adams' opinion, although Plaintiff attached it as an Exhibit to her Opening Briefing. See Dkt. 10-1. Therefore, on October 31, 2017, the Court ordered supplemental briefing, directing the parties to address whether remand pursuant to Sentence Four or Sentence Six would be appropriate if the case was remanded in light of Mr. Adams' opinion. See Dkt. 20. Plaintiff and Defendant provided supplemental briefing. See Dkt. 21, 26. The matter became ready for the Court's consideration on December 5, 2017.


         Pursuant 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 Cir. 1999)).


         I. Whether the administrative record permits meaningful judicial review.

         Plaintiff argues the ALJ erred by failing to address opinion evidence from Plaintiff's therapist and case manager, Mr. Adams, which she says she submitted multiple times to the Social Security Administration (“Administration”). Dkt. 10, pp. 4-6; see also Dkt. 21, pp. 2-4.

         Sentence four of 42 U.S.C. § 405(g) allows the court “to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” When the Appeals Council declines to review a case, the ALJ's decision becomes the final decision of the Commissioner, and the district court reviews the ALJ's decision “for substantial evidence, based on the record as a whole.” Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012) (citing Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999)). Hence, meaningful judicial review “requires access to the facts and reasons supporting that decision.” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009) (citation omitted). As such, the court can “remand a case for further consideration if [it is] unable to exercise meaningful or informed judicial review because of an inadequate administrative record.” Hill v. Astrue, 526 F.Supp.2d 1223, 1228 (D. Kan. 2007) (citing Harrison v. PPG Industries, Inc., 446 U.S. 578, 594 (1980)).

         However, a court does not remand a case in order to make “ministerial correction[s]” to the record. Edwards v. Astrue, 2010 WL 2787847, at *3 (D. Kan. 2010). Instead, “[t]he touchstone is whether the administrative record that does exist permits meaningful review.” Id. at *4. A court may, for example, remand a case when documents are missing from the administrative record. See Podgorney v. Barnhart, 214 Fed.Appx. 648, 649-50 (9th Cir. 2006); see also Hoth v. Berryhill, 680 Fed.Appx. 616, 617 (9th Cir. 2017) (ALJ erred by proceeding without medical records he knew were missing from the administrative record); Gasparyan v. Astrue, 378 Fed.Appx. 644, ...

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