United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge.
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.
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.
AND PROCEDURAL HISTORY
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,
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.
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 fully and fairly developed the
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.
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)).
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. 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.
addition, Dr. Kester wrote “yes” in response to
whether a consultative examination was required, and