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Miller v. Berryhill

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

May 31, 2018

CARYANN MILLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff Caryann Miller appeals the Administrative Law Judge (ALJ)'s April 11, 2016 decision denying her benefits. Dkt. 4. She bases her appeal on the medical opinion of Patricia Wooden, M.D., which was submitted as new and additional evidence to the Appeals Council. Tr. 1-2. Plaintiff argues that Dr. Wooden's opinion was made part of the administrative record when the Appeals Council considered the opinion in deciding whether to review the ALJ's decision. Further, because the opinion is probative of physical and mental limitations not previously considered by the ALJ, the ALJ's decision is not supported by substantial evidence and this Court should remand this case under sentence four of 42 U.S.C. § 405(g) of the Social Security Act. Alternatively, Plaintiff argues that this case should be remanded under sentence six of § 405(g) for incorporation of Dr. Wooden's opinion into the record. Plaintiff raises no other challenges to the ALJ's denial of her disability benefits.

         Defendant argues that remand is not warranted because Dr. Wooden's opinion did not relate to the period at issue, the opinion was never “exhibited” or “considered, ” and even if it was part of the record, it would not change the outcome of the ALJ's decision. Dkt. 14.

         The Court is persuaded that the administrative record includes Dr. Wooden's opinion as the Appeals Council considered the merits of the opinion in denying Plaintiff's request for review. After considering the record as a whole, including Dr. Wooden's opinion, the undersigned concludes that this case should be reversed and remanded under sentence four of 42 U.S.C. § 405(g) to allow the ALJ to consider Dr. Wooden's opinion, which is probative of the issue of disability and may change the outcome of this case when considered with the longitudinal treatment record.

         BACKGROUND

         Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on October 31, 2013, alleging disability beginning March 1, 2010. Tr. 29. The claims were denied initially on January 30, 2014, and upon reconsideration on July 30, 2014. Id. A hearing was held on March 21, 2016 before ALJ Rudolph Murgo. Tr. 73-107.

         Utilizing the five step sequential evaluation process, [1] the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 31. At step two, the ALJ found severe impairments of osteoarthritis of left hip status post slipped capital femoral epiphysis; degenerative disc disease; obesity; major depressive disorder; and PTSD. Tr. 32. The ALJ found several non-severe impairments of right wrist tendonitis, left thumb CMC arthritis and overuse syndrome, dental problems, epicondylitis, carpal tunnel syndrome, and a somatoform disorder. Id. At step three, the ALJ found none of Plaintiff's impairments, alone or in combination, met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 32-34. The ALJ found Plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b), with the following additional limitations:

The claimant can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She can never climb ladders, ropes, or scaffolding. She should avoid concentrated exposure to extreme cold, vibration, and heights/hazards/ heavy machinery. She can perform detailed tasks and work independently. She can work around a few to no people. She can work in a steady work environment where there is no need to adapt to changes in the work environment.

Tr. 34. At step four, the ALJ found Plaintiff was capable of performing her past relevant work as a payroll data entry clerk. Tr. 44. The ALJ made alternative findings at step five that there are jobs that exist in significant numbers in the national economy that Plaintiff was capable of performing, i.e., mail sorter, price marker, and motel cleaner. Tr. 45.

         On June 9, 2016, Plaintiff requested Appeals Council review of the ALJ's decision based in part, on Dr. Wooden's April 11, 2016 report. Tr. 375-377.[2] On July 18, 2017, the Appeals Council denied review because the additional evidence, including Dr. Wooden's report, “does not relate to the period at issue. Therefore, it does not affect the decision about whether [Plaintiff] was disabled beginning on or before April 11, 2016.” Tr. 6. Plaintiff was advised to apply again if she wanted the agency to consider if she was disabled after April 11, 2016. Id.

         On September 25, 2017, the Administrative Appeals Judge denied Plaintiff's request to reopen review, stating in pertinent part:

With your request for reopening, you re-submitted a document that was previously before the Appeals Council when we denied the request for review. The brief expressly indicates that you believe that the medical report of Patricia Wooden, M.D., dated April 11, 2016, both relates to the period considered by the Administrative Law Judge and would warrant a remand for further evaluation. However, the basis of this view appears to be the indication that the doctor has treated the claimant “on/off since 2006” and a misunderstanding of current evidence rules. First, this statement does not in any manner imply that the limitations were applicable back to this time period. The claimant had a number of years of substantial gainful activity and prior unfavorable determination after 2006.
Conversely, the Administrative Law Judge decided the case on April 11, 2016, so the two cases potentially have one day of overlay. Therefore, the Appeals Council could have potentially exhibited the opinion, though being related to the period at issue is not the end of the analysis. With the change in rules, which you received notice of on March 24, 2017, you must also show that it has a “reasonable probability of changing the outcome of the hearing decision.” Without meeting that standard, the material will not be considered or, in other words, exhibited (See HALLEX I-3-5-20). Even a basic review of the opinion indicates that the claimant is so limited that she cannot lift any weight and has mental health limitations that would prevent any gainful employment. The limitations indicated are fully inconsistent with the rest of the medical record, the claimant's reports, the claimant's work history, and other opinions of record. Lastly, the record indicates that ...

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