United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
W. Christel United States Magistrate Judge
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.
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).
AND PROCEDURAL HISTORY
January 13, 2014, Plaintiff filed an application for DIB,
alleging disability as of June 30, 2013. 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.
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.
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 remand pursuant to sentence six is
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,
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
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.
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