Woodsum v. Astrue

• Decision Date: 07 May 2010
• Docket Number: Case No. C09-5370RJB-KLS.
• Citation: 711 F.Supp.2d 1239
• Parties: Heidi C. WOODSUM, Plaintiff,v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of Washington

711 F.Supp.2d 1239

Heidi C. WOODSUM, Plaintiff,v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Case No. C09-5370RJB-KLS.

United States District Court,

W.D. Washington,

at Tacoma.

May 7, 2010.

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Elie Halpern, Halpern & Oliver, PLLC, Olympia, WA, Amy Gilbrough, Douglas Drachler McKee & Gilbrough LLP, Seattle, WA, for Plaintiff.

Brian C. Kipnis, US Attorney's Office, Seattle, WA, Stephanie Martz, Thomas Michael Elsberry, Social Security Administration, Seattle, WA, for Defendant.

ORDER

ROBERT J. BRYAN, District Judge.

The Court, having reviewed plaintiff's complaint, the Report and Recommendation of Judge Karen L. Strombom, United States Magistrate Judge and the remaining record, does hereby find and ORDER:

(1) the Court adopts the Report and Recommendation;

(2) the ALJ erred in her decision as described in the Report and Recommendation;

(3) the matter is therefore REVERSED and remanded to the Commissioner for further administrative proceedings; and

(4) the Clerk is directed to send copies of this Order to plaintiff's counsel, defendant's counsel and Magistrate Judge Karen L. Strombom.

REPORT AND RECOMMENDATION

KAREN L. STROMBOM, United States Magistrate Judge.

Plaintiff, Heidi C. Woodsum, has brought this matter for judicial review of the denial of her applications for disability insurance and supplemental security income (“SSI”) benefits. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule MJR 4(a)(4) and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). After reviewing the parties' briefs and the remaining record, the undersigned submits the following Report and Recommendation for the Court's review.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff currently is 51 years old.¹ Tr. 59. She has a high school education and past work experience as a security guard. Tr. 28, 127, 142, 300.

On February 22, 2006, plaintiff filed applications for disability insurance and SSI benefits, alleging disability as of July 3, 2002, due to a recurrent and severe major depressive disorder and post traumatic stress disorder (“PTSD”). Tr. 20, 98, 103, 141. Her applications were denied initially and on reconsideration. Tr. 59-63, 66, 71, 73. A hearing was held before an administrative law judge (“ALJ”) on October 22, 2008, at which plaintiff, represented by counsel, appeared and testified, as did a medical expert. Tr. 31-58.

On January 16, 2009, the ALJ issued a decision, determining plaintiff to be not disabled, finding specifically in relevant part:

(1) at step one of the sequential disability evaluation process,² plaintiff may have engaged in substantial gainful activity since her alleged onset date of disability;

(2) at step two, plaintiff had “severe” impairments consisting of depression, PTSD and alcoholism in remission;

(3) at step three, none of plaintiff's impairments met or equaled the criteria of any of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;

(4) after step three but before step four, plaintiff had the residual functional capacity to perform a full range of work at all exertional levels, but with certain non-exertional limitations;

(5) at step four, plaintiff was unable to perform her past relevant work; and

(6) at step five, plaintiff was capable of performing other jobs existing in significant numbers in the national economy.

Tr. 20-30. Plaintiff's request for review was denied by the Appeals Council on May 9, 2009, making the ALJ's decision the Commissioner's final decision. Tr. 1; 20 C.F.R. § 404.981, § 416.1481.

On June 22, 2009, plaintiff filed a complaint in this Court seeking review of the ALJ's decision. (Dkt. # 1-# 3). The administrative record was filed with the Court on September 8, 2009. (Dkt. # 13). Plaintiff argues the ALJ's decision should be reversed and remanded to the Commissioner for an award of benefits or, in the alternative, for further administrative proceedings, for the following reasons:

(a) additional evidence submitted to the Appeals Council requires reversal and remand of the ALJ's decision;

(b) the ALJ erred in according any weight to the work plaintiff allegedly performed in 2006;

(c) the ALJ erred in evaluating the medical evidence in the record;

(d) the ALJ erred in assessing plaintiff's credibility;

(e) the ALJ erred in evaluating the lay witness evidence in the record;

(f) the ALJ erred in assessing plaintiff's residual functional capacity; and

(g) the ALJ erred in failing to call a vocational expert to testify regarding other jobs plaintiff could perform.

The undersigned agrees the ALJ erred in determining plaintiff to be not disabled, but, for the reasons set forth below, recommends that while the ALJ's decision should be reversed, this matter should be remanded to the Commissioner for further administrative proceedings. Although oral argument has been requested in this matter, the undersigned finds such argument to be unnecessary here.

DISCUSSION

This Court must uphold the Commissioner's determination that plaintiff is not disabled if the Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole to support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir.1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir.1985). It is more than a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975); Carr v. Sullivan, 772 F.Supp. 522, 524-25 (E.D.Wash.1991). If the evidence admits of more than one rational interpretation, the Court must uphold the Commissioner's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984).

I. Additional Evidence Submitted to the Appeals Council

The record contains a letter written by a lay witness, Russ Parsons, which was submitted for the first time to the Appeals Council, and which reads in relevant part:

I recently spoke with Heidi Woodsum ... She has requested a letter confirming her stay at Lost Lake RV Resort ... that my wife and I managed during the winter of 2006.

Miss Woodum inquired about a small space to rent in our park. She had very little money and was having a difficult time. My wife and I offered her a space, no wages, in exchange for working security at night in the resort. Making sure campfires were out, patrolling the park and checking people in at the gate.

After a short period of time we requested that Miss Woodsum check restrooms, sweep side walks and minor general maintenance.

Within a few weeks Miss [W]oodsum complained of elbow pain and had a hard time using her arm. She began missing duties from sleeping in too late. She stated she couldn't handle working for us and appeared sad and depressed. We agreed the job was more than she could handle and had to let her go and she moved out of the park.

My wife and I liked her a great deal but needed someone we could rely on to preform [sic] her duties....

Tr. 16. Although there is no date on the letter, plaintiff states Mr. Parsons was not located until less than two months after the ALJ issued his decision. (Dkt. # 24, p. 7). In its decision denying plaintiff's request for review, the Appeals Council stated it had “considered the reasons” she disagreed with the ALJ's decision “and the additional evidence” submitted, but found it did “not provide a basis for changing the” ALJ's decision. Tr. 1-2.

Plaintiff argues the letter from Mr. Parsons constitutes new and material evidence, which the Appeals Council was required to not only consider and address, but also set forth its reasons for rejecting it. Plaintiff argues as well that the Appeals Council's error here and the fact that the letter calls into question the ALJ's determination that plaintiff may have engaged in substantial gainful activity, warrants reversal and remand of this matter. Defendant disagrees, asserting the letter actually confirms plaintiff engaged in work-related activity. Although the Appeals Council committed no error as argued by plaintiff, the undersigned finds remand for further proceedings is warranted in part due to the statements contained in the letter.

A. The Appeals Council's Consideration of the Additional Evidence

Plaintiff cites to 20 C.F.R. § 404.970 and the Commissioner's Hearing, Appeals and Litigation Law Manual (“HALLEX”) ³ I-3-3-6 for the proposition that the Appeals Council must consider new and material evidence submitted to it. Plaintiff also cites to 42 U.S.C. § 405(b)(1) and Harmon v. Apfel, 103 F.Supp.2d 869, 873 (D.S.C.2000) in asserting that “[f]airness and accuracy ... require some explanation by the Appeals Council in terms of rejecting medical evidence submitted to it,” and therefore, presumably, by extension to that from a lay witness such as Mr. Parsons. (Dkt. # 17, p. 23). Specifically, she asserts 42 U.S.C. § 405(b)(1) requires the Commissioner, which includes the Appeals Council, “to make findings of fact including reasons or bases on which the decision is based,” and cites again to the HALLEX and two court of appeals decisions from the Fifth Circuit to argue that the Appeals Council must “specifically address” additional evidence submitted to it. (Dkt. # 17, p. 23).

The undersigned finds plaintiff's argument to be wholly unpersuasive. First, in regard to the Appeals Council's duty to consider “new and material evidence” submitted to it, 20 C.F.R. § 404.970(b) provides as follows:

If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted

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