United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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
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.
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.
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.
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 ...