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Powell v. Berryhill

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

May 3, 2018

NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.


          David W. Christel United States Magistrate Judge.

         Plaintiff Curtis Powell 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. 3.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred by failing to fully develop the record. Had the ALJ fully developed the record with respect to Plaintiff's limitations, 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 November 18, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as of November 1, 2013. See Dkt. 6, Administrative Record (“AR”) 14. The applications were denied upon initial administrative review and on reconsideration. See AR 14. ALJ John Michaelsen held a hearing on June 1, 2016. AR 34-67. In a decision dated July 6, 2016, the ALJ determined Plaintiff to be not disabled. AR 14-27. 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 1-6; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) order an additional consultative examination; and (2) provide specific, clear and convincing reasons to discount Plaintiff's subjective symptom testimony. Dkt. 12, pp. 1-10.


         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 ALJ fully and fairly developed the record.

         Plaintiff argues the ALJ erred by failing to order an additional mental health consultative examination. Dkt. 12, pp. 1-7 (citing 20 C.F.R. § 404.1519a (Mar. 26, 2012)). Specifically, Plaintiff argues that although he had one mental health consultative examination, another examination was warranted because a non-examining physician reviewed the records and determined a mental health consultative examination was needed. Id. at 5-7.

         An ALJ has the duty “to fully and fairly develop the record and to assure that the claimant's interests are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations omitted). “Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to conduct an appropriate inquiry.” Id. (citations omitted). The ALJ's duty may also be triggered where a consultative examiner suggests that additional evidence is needed. See Id. at 1150-51. The duty to fully and fairly develop the record may be discharged “in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record.” Id. at 1150 (citing Tidwell, 161 F.3d at 602; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)).

         In this case, Dr. Kathleen S. Mayers, Ph.D., conducted a psychological consultative examination of Plaintiff on May 6, 2014. AR 280-86. Later that year, on November 17, 2014, stage agency consultant and non-examining physician Dr. Eugene Kester, M.D., conducted a record review of Plaintiff's medical records. See AR 92-102, 103-113.[1] Dr. Kester reviewed several of Plaintiff's medical records, including Dr. Mayers' consultative report. See AR 93-95. Dr. Kester noted that as of August 2014, Plaintiff had new limitations due to “higher anxiety.” AR 93.

         In addition, Dr. Kester wrote “yes” in response to whether a consultative examination was required, and explained ...

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