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Moylan v. Berryhill

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

June 6, 2018

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


          David W. Christel United States Magistrate Judge

         Plaintiff Jeffrey S. Moylan filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the Deputy Commissioner of Social Security's (“Commissioner”) denial of Plaintiff's 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. 2.

         After considering the record, the Court concludes remand under sentence six is not warranted. The Court further concludes Plaintiff has not shown the Administrative Law Judge (“ALJ”) committed harmful error at Step Three of the sequential evaluation process. As the ALJ's decision finding Plaintiff not disabled is supported by substantial evidence, the Commissioner's decision is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         On January 13, 2014, Plaintiff filed an application for DIB, alleging disability as of June 30, 2013.[1] See Dkt. 7, Administrative Record (“AR”) 13. The application was denied upon initial administrative review and on reconsideration. See AR 13. ALJ David Johnson held the first hearing in this matter on October 26, 2015. AR 42-55. The ALJ continued that hearing so Plaintiff could obtain representation See AR 51-55. After Plaintiff obtained representation, the ALJ held the second hearing on January 28, 2016. AR 58-99. In a decision dated August 30, 2016, the ALJ determined Plaintiff to be not disabled. AR 13-27. 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: (1) issuing a decision without records from the Office of Personnel Management (“OPM”) related to Plaintiff's disability retirement from the federal government (“the OPM records”); and (2) improperly rating Plaintiff's concentration, persistence, and pace as “mild” at Step Three of the sequential evaluation process. Dkt. 12, pp. 2, 6-14.


         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 remand pursuant to sentence six is warranted.

         Plaintiff argues the ALJ erred by issuing a decision without the OPM records and requests a sentence six remand so the ALJ may reconsider Plaintiff's case with the OPM records once they are obtained. Dkt. 12, p. 2; see also Dkt. 12, pp. 6-11.

         The Court may order remand pursuant to sentence six of 42 U.S.C. § 405(g) “only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g); see Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). To show good cause for failure to incorporate the evidence into the record, a plaintiff “must demonstrate that the new evidence was unavailable earlier.” Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001) (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985)). Further, to show the new evidence is material, a plaintiff must demonstrate there is a “‘reasonable possibility' that the new evidence would have changed the outcome of the administrative hearing.” Id. (quoting Booz v. Sec. of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984)).

         In this case, Plaintiff was previously employed by the federal government in the Social Security Administration (“SSA”). See AR 223-28 (earnings records). At the first ALJ hearing, Plaintiff indicated there were OPM records related to his “disability retirement” from the SSA that were not yet in the administrative record. AR 44-46. Plaintiff noted he was “not totally sure” what the records contained. AR 44-46. At the second ALJ hearing, the ALJ inquired into the status of the OPM records to “make sure” the administrative record was complete. AR 62-63. Plaintiff's attorney responded that he would “be happy” to retrieve and submit the OPM records. AR 62-63. Accordingly, the ALJ left the record open for the submission of additional records. AR 61-63.

         Plaintiff submitted evidence to this Court indicating that on January 29, 2016, the day after the second ALJ hearing, Plaintiff's attorney contacted the OPM and requested the OPM records. See Dkt. 12-1, pp. 1, 4-5. Plaintiff's attorney received a response that same day, confirming the OPM received the records request. Id. at 4. However, Plaintiff's attorney never received the OPM records. See Id. at 2, 7. Plaintiff's attorney and others at the attorney's office continued to request the OPM records over the next several months. Id. at 2, 8-12. On April 5, 2016, Plaintiff's attorney ...

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