United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
Lena J. seeks review of the denial of her Supplemental
Security Income and Disability Insurance Benefits
applications. She argues that the ALJ and the Appeals Council
erred by failing to admit probative evidence, and that the
ALJ improperly rejected the medical expert's opinion.
Dkt. 10. The Court recommends the case be
REVERSED and REMANDED for
further administrative proceedings under sentence four of 42
U.S.C. § 405(g).
is currently 54 years old, has a high school education, and
has worked as a pastry cook and waitress. Tr. 59, 97, 293. In
October 2015, she applied for benefits, alleging disability
as of August 2015. Tr. 293, 300. After her applications were
denied initially and on reconsideration, the ALJ conducted a
hearing on January 30, 2018, and a supplemental hearing on
June 7, 2018. Tr. 15. On October 4, 2018, the ALJ issued a
decision finding plaintiff not disabled. Tr. 15-28. The
Appeals Council denied plaintiff's request for review,
making the ALJ's decision the Commissioner's final
decision. Tr. 1.
the five-step disability evaluation process,  the ALJ found
that plaintiff had not engaged in substantial gainful
activity since the alleged onset date; she had the following
severe impairments: degenerative disc disease,
methamphetamine abuse in current remission, and mental health
disorders variously diagnosed as depressive, anxiety, and
panic disorders; and these impairments did not meet or equal
the requirements of a listed impairment. Tr. 17-19. The
ALJ found that plaintiff had the residual functional capacity
to perform light work with postural, reaching, and
environmental limitations, she can understand, remember, and
carry out short and simple instructions, and she should not
have transactional work with the general public. Tr. 20. The
ALJ found that plaintiff could not perform her past relevant
work, but, as there were jobs that exist in significant
numbers in the national economy that plaintiff could perform,
she was not disabled. Tr. 26-28.
Evidence submitted after deadline
argues that the ALJ erred by declining to admit evidence she
submitted after the deadline for notifying the ALJ of the
existence of evidence. Dkt. 10 at 3. She argues in the
alternative that, because the Appeals Council considered the
evidence, the court should review it as new and material
evidence submitted to the Appeals Council. Id. at 6.
The court finds that because the Appeals Council made the
evidence part of the record and considered it in evaluating
plaintiff's request for review, the court should evaluate
it as new evidence submitted to the Appeals Council. Under
that evaluation, the court finds that the ALJ's decision
is no longer supported by substantial evidence when the new
evidence is considered.
Security regulations provide that a claimant must inform the
ALJ about or submit any written evidence no later than 5
business days before the date of the hearing (the
“five-day rule”). 20 C.F.R. §§
404.935(a), 416.935(a). If a claimant does not comply with
this requirement, the ALJ “may decline to consider or
obtain the evidence, ” unless certain exceptions apply.
Id. Those exceptions include an “unusual,
unexpected, or unavoidable circumstance beyond your
control” that prevented the claimant from informing the
ALJ about or submitting the evidence earlier. 20 C.F.R.
§§ 404.935(b)(3), 416.1435(b)(3). One example of
such a circumstance is where the claimant has “actively
and diligently sought evidence from a source and the evidence
was not received or was received less than 5 business days
prior to the hearing.” 20 C.F.R. §§
404.935(b)(3)(iv), 416.1435(b)(3)(iv). If the claimant has
missed the deadline because of one of the listed exceptions,
the ALJ “will accept the evidence” if he or she
has not yet issued the decision. 20 C.F.R. §§
Appeals Council will review a case if, among other reasons,
it receives additional evidence that is new and material and
that relates to the period on or before the date of the ALJ
decision, and there is a reasonable probability that the
additional evidence would change the outcome of the case. 20
C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). However,
the Appeals Council will consider additional evidence when
deciding whether to review a case only if the claimant shows
good cause for not meeting the five-day rule because of one
of the reasons described in 20 C.F.R. §§ 404.935(b)
and 416.1435(b), including that the claimant actively and
diligently sought evidence from a source and the evidence was
not received or was received less than 5 business days prior
to the hearing. 20 C.F.R. §§ 404.970(b),
416.1470(b). If the claimant submits new evidence and the
Appeals Council does not find that the claimant had good
cause for not meeting the five-day rule, the Appeals Council
will send the claimant a notice that explains why it did not
accept the additional evidence. 20 C.F.R.
the Appeals Council considers new evidence in declining
review, that evidence becomes part of the administrative
record, which this court must consider in determining whether
the ALJ's decision is supported by substantial evidence.
Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d
1157, 1159-60 (9th Cir. 2012).
underwent a psychological examination with David Morgan,
Ph.D., on May 28, 2018, at the direction of the Washington
State Department of Social and Health Services. Tr. 35-46.
Dr. Morgan opined that plaintiff had marked limitations in
numerous functional areas, including the ability to perform
activities within a schedule, maintain regular attendance,
learn new tasks, adapt to changes in a routine work setting,
make simple work-related decisions, and maintain appropriate
behavior in a work setting; he rated her overall level of
impairment as marked. Tr. 38-39. He opined that
plaintiff's impairments were not primarily the result of
a substance use disorder, and noted that plaintiff reported a
long history of methamphetamine abuse but she had been clean
and sober for over one year. Tr. 37, 39.
noted, plaintiff underwent this examination on May 28, 2018.
Three days later, on May 31, 2018, plaintiff's counsel
submitted to the ALJ a list of outstanding evidence that had
been requested but not received; this list did not include
Dr. Morgan's report. Tr. 441. Counsel submitted Dr.
Morgan's report to the ALJ on June 5, 2018, two days
before the June 7, 2018 supplemental hearing. Tr. 45. At the
hearing, the ALJ acknowledged receipt of Dr. Morgan's
report but declined to admit it as untimely under the
five-day rule. Tr. 84-85. In the decision, ...