Corona v. Commissioner of Social Security, No. 4:2018cv05132 - Document 18 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 11 PLAINTIFF'S SUMMARY JUDGMENT MOTION AND DENYING 16 DEFENDANT'S SUMMARY JUDGMENT MOTION. Case is closed. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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alleged onset date.41 At step two, the ALJ found Plaintiff had the following severe impairments: 9 10 diabetes mellitus, peripheral neuropathy, headaches, cervical and lumbar 11 degenerative disk disease, bilateral sacroiliitis, and obesity.42 The ALJ also found 12 that Plaintiff’s left shoulder rotator cuff impairment was not severe as defined in the 13 Social Security regulations.43 At step three, the ALJ found that Plaintiff did not have an impairment that 14 15 met the severity of a listed impairment.44 16 At step four, the ALJ found that Plaintiff has the RFC to perform light work, 17 as defined in 20 C.F.R. §§ 404.1567(b), with the following limitations.45 The ALJ 18 found she can lift/carry up to 10 pounds frequently and up to 20 pounds 19 occasionally.46 She can sit about six hours and stand/walk about four hours during a 20 21 22 36 37 23 38 39 24 40 41 25 42 43 26 44 45 27 46 AR 90. Id. AR 116. AR 25–46. AR 25–46. AR 33. Id. AR 33–34. AR 34. Id. Id. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 5 1 typical eight-hour workday.47 She can frequently push/pull with her left upper 2 extremity and push/pull unlimitedly with her right upper extremity as stated for 3 lift/carry.48 She can unlimitedly balance and kneel.49 She can occasionally climb 4 ramps/stairs and stoop.50 She can frequently crouch.51 The claimant can never crawl 5 or climb ladders, ropes or scaffolds.52 She speaks but cannot read English.53 She 6 should avoid concentrated exposure to fumes, odors, dusts, gasses, poor ventilation, 7 and vibration.54 She must avoid all exposure to hazards such as dangerous 8 machinery and unprotected heights.55 When determining Plaintiff’s RFC, the ALJ found that Plaintiff’s medically 9 10 determinable impairments could reasonably be expected to cause some of the alleged 11 symptoms, but that Plaintiff’s statements concerning the intensity, persistence and 12 limiting effects of those symptoms were not consistence with the record.56 The ALJ 13 also gave some weight to the opinion of Dr. Jack Lebeau, great weight to Dr. James 14 Opara’s opinion, and great weight to most of Dr. Gordon Hale’s opinion.57 Finally, the ALJ found that Plaintiff was able to perform past relevant work 15 16 as a “Cashier II.”58 17 After the ALJ’s decision, Plaintiff submitted to the Appeals Council two new 18 medical reports. The first report was from Kadlec Regional Medical Center dated 19 March 6, 2018.59 The second report was from Dr. Robert Whiston, dated March 2, 20 21 47 48 22 49 50 23 51 52 24 53 54 25 55 56 26 57 58 27 59 Id. Id. Id. Id. Id. Id. Id. Id. Id. AR 35. AR 38–39. AR 32. AR 18–20. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 6 1 2018.60 The Appeals Council concluded that the reports did not “relate to the period 2 at issue” and declined to consider them.61 The Appeals Council denied Plaintiff’s 3 request for review,62 making the ALJ’s decision the final decision for purposes of 4 judicial review.63 Plaintiff filed this lawsuit on August 8, 2018.64 IV. 5 Applicable Law & Analysis 6 The Court remands to the ALJ for consideration of the two medical reports 7 submitted to the Appeals Council by Plaintiff. In light of this conclusion, the Court 8 declines to address Plaintiff’s remaining assignments of error. 9 A. The Appeals Council erred in failing to consider the new medical 10 reports. 11 The Appeals Council should have considered the medical reports from Kadlec 12 Regional Medical Center and Dr. Robert Whitson but erroneously concluded that the 13 reports did not “relate to the period at issue.” Under agency regulations, the Appeals 14 Council must consider additional evidence that is new, material, and relates to the 15 period on or before the date of the ALJ’s decision.65 The Commissioner does not 16 dispute that the reports were new and are material.66 The reports also “related to” 17 the time period prior to the ALJ’s decision on February 28, 2018 because the reports 18 discuss the same conditions Plaintiff claimed as the bases of her disability and that 19 20 21 60 22 61 62 23 63 64 24 65 25 66 26 27 AR 21–24. AR 2. AR 1–4. 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. ECF No. 1. See 20 C.F.R. § 404.970(b); Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). See also Lamp v. Astrue, 531 F.3d 629, 632–33 (8th Cir. 2008) (remanding where it was not clear from the record whether the Appeals Council had considered plaintiff’s additional evidence). The reports are material because they bear “directly and substantially on the matter in dispute,” as they describe the conditions that the ALJ found to be severe. Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010) (quoting Booz v. Sec’y of Health Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (citation omitted)). ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 7 1 the ALJ found to be severe impairments.67 The reports are dated March 2 and 6, 2 2018—only days after the February 28, 2018 decision. Therefore, the reports must 3 have evaluated Plaintiff’s condition on or before February 28, 2018. Otherwise, 4 Plaintiff would have had to developed diabetes, diabetic mellitus, peripheral 5 neuropath, degenerative disc, cervical and lumbar degenerative disc disease, and 6 bilateral sacroiliitis after ALJ’s February 28, 2018 decision but before the March 2 7 and 6, 2018 reports. Thus, the reports were new, material, related to the relevant 8 period, and should have been considered by the Appeals Council.68 The Commissioner argues that the ALJ’s decision is still supported by 9 10 substantial evidence even after considering the additional reports, but the 11 Commissioner’s reliance on Brewes v. Commissioner to support this argument is 12 misplaced.69 In Brewes, the Ninth Circuit held: 13 [W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence.70 14 15 16 Here, the Appeals Council did not consider the reports at all, making this case 17 directly analogous to Taylor v. Commissioner. In Taylor, the plaintiff submitted 18 medical reports to the Appeals Council that were dated after the relevant time 19 period, but both documents “related to” the relevant period.71 The Appeals Council 20 did not consider the evidence, either because it was misplaced or because it 21 erroneously concluded that it pertained to a later time period.72 The Ninth Circuit 22 23 67 24 25 68 69 26 70 71 27 72 Compare AR 33 (listing severe impairments) with AR 18–20 (discussing cervical and lumbar degenerative disc disease) and AR 23 (listing diabetes, diabetic neuropath, degenerative disk disease and sacroiliitis as Plaintiff’s impairments). See 20 C.F.R. § 404.970(b). See ECF No. 16 at 4–6. Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (emphasis added). Taylor, 659 F.3d at 1233 (citations omitted). Id. at 1232–33 (noting that the medical reports were not mentioned at all). ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 8 1 remanded to the ALJ because the Appeals Council had erroneously failed to consider 2 two new medical reports.73 The facts here are directly analogous because the Appeals 3 Council erroneously did not consider the reports, making remand appropriate. 4 Accordingly, the Court remands the matter to the ALJ for consideration of 5 this evidence.74 On remand, the ALJ shall account for the reports in the five-step 6 sequential analysis required under 20 C.F.R. § 404.1520(a)(4)(i)–(v).75 Even if the 7 reports are contradicted by other evidence in the record, as a treating physician, Dr. 8 Whitson’s opinion may not be rejected without “specific and legitimate 9 reason . . . supported by substantial evidence in the record.”76 10 B. The Court declines to determine Plaintiff’s remaining assertions of 11 error. 12 As the Court finds that remand is appropriate under Taylor for the ALJ to 13 consider how the evidence from the new reports could affect each step of the 14 sequential analysis, the Court need not address Plaintiff’s remaining assignment of 15 error.77 The ALJ may wish to reweigh the medical evidence as well as Plaintiff’s 16 subjective testimony in light of the ALJ’s review of the additional reports. 17 18 19 20 73 74 21 22 23 24 25 26 75 27 77 76 Id. at 1233. District courts have acted in accordance with Taylor in similar situations. See e.g., Crawford v. Colvin, No. ED CV 15-1436-PLA, 2016 WL 1237342, at *7 (C.D. Cal. Mar. 28, 2016) (concluding that remand was necessary where Appeals council erroneously refused to consider medical report that related to the period in question); Powell v. Colvin, No. 6:14–cv–01900–SI, 2016 WL 706199, at *5 (D. Or. Feb. 22, 2016) (finding that remand was appropriate under Taylor where the Appeals Council failed to consider a psychological evaluation completed after the ALJ’s decision by a physician who opined that the plaintiff’s mental limitations existed at the present level dating back to prior to the ALJ’s decision); Mancillas v. Colvin, No. 5:13–cv–02522–PSG, 2014 WL 2918897, at *4 (N.D. Cal. June 26, 2014) (finding that Appeals Council erred by refusing to consider psychiatric evaluation and medical source statement that post-dated ALJ decision but were based on treatment rendered prior to ALJ decision). Taylor, 659 F.3d at 1233 (citations omitted). See Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996). See Taylor, 659 F.3d at 1235. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 9 V. 1 2 3 CONCLUSION AND ORDER Based on the foregoing, the ALJ’s decision is vacated and the case is remanded to the ALJ for further proceedings consistent with this Order. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is GRANTED. 6 2. The Commissioner’s Motion for Summary Judgment, ECF No. 16, is DENIED. 7 8 3. This matter is REMANDED to the Commissioner of Social Security for 9 further proceedings consistent with this decision and sentence four of 10 42 U.S.C. § 405(g). 11 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff. 12 5. The file shall be CLOSED. 13 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 14 15 16 17 provide copies to all counsel. DATED this 28th day of June 2019. s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 Q:\EFS\Civil\2018\18-cv-5132. Esperanza C. SS Order.lc02.docx ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 10
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