682 F.3d 1157 (9th Cir. 2012), 11-35216, Brewes v. Commissioner of Social Sec. Admin.

Docket Nº:11-35216.
Citation:682 F.3d 1157
Opinion Judge:FISHER, Circuit Judge:
Party Name:Mindy BREWES, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
Attorney:Jeffrey H. Baird (argued), Seattle, WA; Alan Stuart Graf (argued), Summertown, TN, for the appellant. Dwight C. Holton, United States Attorney; Kelly A. Zusman, Assistant United States Attorney; David Morado, Regional Chief Counsel, Seattle Region X; Jordan D. Goddard (argued), Assistant Regional...
Judge Panel:Before: WILLIAM A. FLETCHER, RAYMOND C. FISHER and JAY S. BYBEE, Circuit Judges.
Case Date:June 14, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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682 F.3d 1157 (9th Cir. 2012)

Mindy BREWES, Plaintiff-Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

No. 11-35216.

United States Court of Appeals, Ninth Circuit.

June 14, 2012

Argued and Submitted March 9, 2012.

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[Copyrighted Material Omitted]

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Jeffrey H. Baird (argued), Seattle, WA; Alan Stuart Graf (argued), Summertown, TN, for the appellant.

Dwight C. Holton, United States Attorney; Kelly A. Zusman, Assistant United States Attorney; David Morado, Regional Chief Counsel, Seattle Region X; Jordan D. Goddard (argued), Assistant Regional Counsel, Seattle, WA, for the appellee.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. 6:09-cv-00748-HO.

Before: WILLIAM A. FLETCHER, RAYMOND C. FISHER and JAY S. BYBEE, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Mindy Brewes appeals an order of the district court affirming the Commissioner of Social Security's final decision denying her disability benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 401-434. We must decide, among other things, whether the district court should have considered evidence Brewes did not submit to the Administrative Law Judge (ALJ) but submitted for the first time to the Appeals Council, which accepted and considered the new evidence but declined to review the ALJ's decision.

The Commissioner contends that when the Appeals Council denies review of an ALJ's decision, evidence that was not before the ALJ is not part of the administrative record before the district court, even if that evidence was submitted to and accepted by the Appeals Council. We disagree. We hold that when a claimant submits evidence for the first time to the Appeals Council, which considers that evidence in denying review of the ALJ's decision, the new evidence is part of the administrative

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record, which the district court must consider in determining whether the Commissioner's decision is supported by substantial evidence. Considering the record as a whole, including the evidence Brewes submitted to the Appeals Council, we conclude that the Commissioner's decision is not supported by substantial evidence. We reverse and remand for an immediate award of benefits.

Background

Brewes applied for disability benefits in June 2005. She claims that she has been disabled since February 2004 as a result of depression, bipolar disorder, anxiety and agoraphobia.1

The record before the ALJ catalogued Brewes' medical history from 2002 to 2007. During this period, multiple mental health specialists diagnosed Brewes with some combination of major depressive or bipolar disorder, anxiety disorder, and panic disorder with agoraphobia. In addition to her regular therapy appointments, Brewes' doctors treated her with a battery of psychopharmacological medications. Unfortunately, these regimens were of limited success. Brewes' providers' treatment notes show that she suffered from persistent and severe symptoms that significantly curtailed her daily activities. Brewes often slept 12 hours a day, experienced frequent panic attacks, could not accomplish household chores and rarely left the house because doing so exacerbated her anxiety and panic attacks. When she did go out, she was almost always with her husband. Over the years, Brewes' doctors assigned her Global Assessment of Function (GAF) scores that ranged from a low of 40— indicating major functional impairment in several areas, such as work, family relations, judgment or thinking— to a high of 60, indicating moderate difficulty in social or occupational functioning. See Diagnostic and Statistical Manual of Mental Disorders 34 (rev. 4th ed. 2000).2

Brewes' hearing testimony, in February 2007, was largely consistent with the medical record. Describing her symptoms, Brewes testified,

I have a very hard time with anxiety, constant panic attacks. When it switches from anxiety to depression, I have no will to do anything. I cry all the time. I don't even take care of myself. It's hard to even get up and just take a shower. And when I'm anxious, all I want to do is lay in a ball and try not to freak out.

Brewes explained that she relied on her husband to handle most of the household chores because she became too overwhelmed just thinking about doing them herself. Her day consisted primarily of lying in bed with the television going in the background; she also took her medication, ate and went to doctors appointments. She testified that she rarely left the house, and almost never on her own.

The ALJ denied Brewes' application for disability benefits. He found that she suffered from major depressive disorder, panic disorder with agoraphobia, mixed personality disorder and a history of opioid dependence, all of which qualified as " severe impairments," but concluded that Brewes' statements concerning the intensity,

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persistence and limiting effects of her symptoms were " not entirely credible." He found that Brewes retained the residual functional capacity to perform " simple one-, two-, three-step work with limited interaction with co-workers and no public interaction." Relying on the testimony...

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