United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE.
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”).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.
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.
AND PROCEDURAL HISTORY
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.
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,
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,
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.
Opening Brief, Plaintiff argues the ALJ erred in failing to
consider Dr. Kwon's letter and attaches the letter. Dkt.
8, Exhibit 1.
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
attaches Dr. Kwon's letter to her Opening Brief. Dkt. 8,
Exhibit 1. Plaintiff asks the Court to ...