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Brown v. Berryhill

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

January 3, 2018

DEBERA KAY BROWN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING DEFENDANT'S DECISION TO DENY BENEFITS

          DAVID W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Debera Kay Brown, filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her application for Disabled Widows Benefits (“DWB”).[1]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. 3.

         Plaintiff argues this matter should be reversed and remanded under sentence six of 42 U.S.C. § 405(g). Dkt. 8. The Court finds Plaintiff has not met the requirements for remand, and the Commissioner's decision is affirmed.

         FACTUAL AND PROCEDURAL HISTORY

         On March 6, 2014, Plaintiff protectively filed an application for DWB alleging disability beginning October 1, 2004. Dkt. 7, Administrative Record (“AR”) 17. The application was denied upon initial administrative review and on reconsideration. Id. A hearing was held on October 5, 2015 before ALJ Kelly Wilson. AR 33-63. In a decision dated February 11, 2016, the ALJ determined Plaintiff to be not disabled. AR 14-32.

         Plaintiff sought review by the Appeals Council on April 8, 2016. AR 135-138. On June 10, 2016, Plaintiff submitted Dr. Peter Kwon, M.D.'s May 16, 2016 opinion letter (“Dr. Kwon's letter”). Dkt. 8 Exhibit 1. On March 24, 2017 the Social Security Administration (“Administration”) issued Plaintiff a letter, indicating it was changing the rules on May 1, 2017 regarding when the Appeals Council considers whether to review a claimant's case, including when the Administration receives new evidence not considered by the ALJ. Dkt. 8, Exhibit 2. The Administration reasoned that because Plaintiff's case was pending before the new rule became effective, the Administration found Plaintiff showed good cause for not submitting additional evidence earlier. Dkt. 8, Exhibit 2.

         On June 5, 2017 Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1-6, 20 C.F.R. § 404.981. The Appeals Council declined to consider Dr. Kwon's letter, providing:

You submitted evidence from Peter Kwon M.D., dated May 16, 2016. We find the evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence.

AR 2.

         In the Opening Brief, Plaintiff argues the ALJ erred in failing to consider Dr. Kwon's letter and attaches the letter. Dkt. 8, Exhibit 1.

         STANDARD OF REVIEW

         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)).

         DISCUSSION

         Plaintiff attaches Dr. Kwon's letter to her Opening Brief. Dkt. 8, Exhibit 1. Plaintiff asks the Court to ...


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