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Fortier v. Berryhill

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

February 20, 2018

DANIEL FORTIER, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge.

         Plaintiff Daniel Fortier filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of his application for 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. 4.

         The Court finds the Administrative Law Judge (“ALJ”) failed to consider the opinion of Drs. James Davison, Ph.D. and Lauren Hollrah, Ph.D. when finding Plaintiff not disabled. Had the ALJ given great weight to these two opinions, the residual functional capacity (“RFC”) assessment 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 for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On January 22, 2015, Plaintiff filed an application for DIB, alleging disability as of January 14, 2013. See Dkt. 7, Administrative Record (“AR”) 98. The application was denied upon initial administrative review and on reconsideration. See AR 98. A hearing was held before ALJ Cynthia Rosa on August 25, 2016. See AR 122-48. In a decision dated January 31, 2017, the ALJ determined Plaintiff was not disabled. See AR 98-116. On February 27, 2017, Plaintiff amended his disability onset date to April 15, 2015. AR 8. Plaintiff sought review of the ALJ's decision and submitted new evidence, including evaluations completed by Drs. James Davison, Ph.D. and Lauren Hollrah, Ph.D, to the Appeals Council. See AR 10-14. The Appeals Council considered the new evidence and denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. See AR 149-51; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains: (1) the administrative record, including an evaluations completed by Drs. Davison and Hollrah, fails to provide substantial evidence to support the ALJ's decision to deny disability benefits; (2) the ALJ improperly discounted Plaintiff's subjective claims; and (3) the ALJ erred at Step 5 of the sequential evaluation process. See Dkt. 11, p. 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

         I. Whether the ALJ's decision is supported by substantial evidence in light of the new evidence submitted to the Appeals Council and included in the administrative record.

         On July 28, 2016, Dr. Davison completed a Review Evaluation of Traumatic Brain Injury (R-TBI) Disability Benefits Questionnaire and a Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire of Plaintiff. AR 3389-3406. On August 5, 2016, Dr. Hollrah treated Plaintiff. See AR 3506-13. Dr. Hollrah's progress notes include opinions regarding Plaintiff's limitations and ability to work. See id. Dr. Davison's evaluations and Dr. Hollrah's findings were not submitted to the ALJ, but were submitted to the Appeals Council. See AR 10-33, 152-53. The Appeals Council considered the evaluations and medical records and found the new evidence did not provide a basis for changing the ALJ's decision. AR 150. Plaintiff argues the ALJ's decision finding Plaintiff not disabled in not supported by substantial evidence in light of the evidence submitted to the Appeals Council. Dkt. 11, pp. 4-11.

         When the Appeals Council considers new evidence in denying review of the ALJ's decision, “the new evidence is part of the administrative record, which the district court must consider in determining whether the Commissioner's decision is supported by substantial evidence” and free of legal error. Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012); Taylor v. Commissioner of Social Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). As Dr. Davison's evaluations, Dr. Hollrah's progress notes, and other medical records were considered by the Appeals Council, the Court must consider this evidence in determining if the ALJ's decision is supported by substantial evidence and free of legal error.

         Dr. Davison completed a traumatic brain injury (“TBI”) evaluation of Plaintiff, wherein he found Plaintiff's judgment is moderately/severely impaired, his social interactions are inappropriate most or all of the time, and his visual and spatial orientation is moderately/severely impaired. AR 3390-93. He also determined Plaintiff is consistently disoriented to two or more of the four aspects (person, place, time, situation) of orientation and found Plaintiff has one or more neurobehavioral effects that interfere with or preclude workplace and/or social interactions on most days or that occasionally requires supervision for safety. AR 3391-92. Dr. Davison opined that “[s]even (7) of the eight (8) reported residual conditions (i.e. motor dysfunction; sensory dysfunction; hearing loss and/or tinnitus; visual conditions; alteration of sense of smell or taste; gait, coordination, and balance; and headaches, including migraine headaches) significantly impact the claimant's ability to substantially and reliably attend to, organize, and follow through to completion assigned work activities.” AR 3395. In the PTSD evaluation, Dr. Davison stated Plaintiff's executive functioning “(i.e., attentional control, inhibitory control, working memory, cognitive flexibility, problem solving, and planning)” is significantly compromised. AR 3405. He found Plaintiff is not capable of managing his own finances. AR 3404.

         On August 5, 2016, Dr. Hollrah examined Plaintiff. See AR 3506. She completed a mental status examination of Plaintiff and reviewed previous treatment records. See AR 3507. Dr. Hollrah noted Plaintiff was disabled by pain. AR 3510. She found he had minimal functioning in activities of daily living and Plaintiff reported he could only walk one hundred yards at one time. AR 3511. Dr. Hollrah ...


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