Nunes v. Berryhill

Filing 18

ORDER REVERSING THE COMMISSIONER AND REMANDING UNDER SENTENCE FOUR by Hon. Brian A Tsuchida. (AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JILL NUNES,
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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security

CASE NO. C17-5836 BAT
ORDER REVERSING THE
COMMISSIONER AND REMANDING
UNDER SENTENCE FOUR

Defendant.

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Jill Nunes appeals the ALJ’s decision 1 finding her not disabled. She contends the Court

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should reverse and remand the ALJ’s decision under sentence six of 42 U.S.C § 405(g) based

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upon evidence she presented to the Appeals Council, and because the ALJ misevaluated the

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opinions of a treating Rheumatologist, James Nakashima, M.D. Dkt. 14 at 1-2. The

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Commissioner concedes the ALJ erred but argues sentence four remand is appropriate.

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The evidence Ms. Nunes presented to the Appeals Council was considered by the

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Commissioner and is thus part of the record. The Court accordingly concludes a sentence four

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remand is appropriate. In seeking Appeals Council review of the ALJ’s decision, Ms. Nunes

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submitted medical records from Legacy Salmon Creek. Tr. 2. The Appeals Council found this

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Because the Appeals Council denied review, the ALJ’s decision is the Commissioner’s final
decision.
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ORDER REVERSING THE COMMISSIONER AND REMANDING
UNDER SENTENCE FOUR - 1

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evidence “does not show a reasonable probability that it would change the outcome of the case,”

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omitted the evidence from the Administrative Record, and denied review. Id. at 1-3. Ms. Nunes

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is entitled to request Appeals Council review and to submit evidence she wishes the Appeals

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Council to consider. 20 C.F.R. § 404.968. She exercised this perogative, submitting medical

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records from Legacy Salmon Creek. The Appeals Council found these records would not alter

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the ALJ’s decision; the Appeals Council therefore considered them and they are part of the

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record before this Court. 2 Brewes v. Commissioner of SSA, 682 F.3d 1157, 1163 (9th Cir. 2012)

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(expressly adopting Ramirez v. Shalala, 8 F.3d 144, 1452 (9th Cir. 1993)); Taylor v.

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Commissioner of SSA, 659 F.3d 3d 1228, 1231 (9th Cir. 2011) (courts may consider evidence

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presented for the first time to the Appeals Council “to determine whether, in light of the record

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as a whole, the ALJ’s decision was supported by substantial evidence and was free of legal

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error”).

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Because the Commissioner has already considered the Legacy Salmon Creek records, and

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the Court deems them part of the administrative record, remand under sentence four is

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appropriate. See Taylor, 659 F.3d at 1233; see, e.g., Congreve v. Colvin, 2014 WL 1155560, at

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*3 n. 2 (E.D. Wash. Mar. 21, 2014); Boucher v. Astrue, 2010 WL 2635078 (W.D. Wash. June

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25, 2010); Rodriguez v. Astrue, 2010 WL 933947 (E.D. Wash. Mar. 9, 2010).

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The Court notes, but need not resolve, the parties’ disagreement about how the new

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evidence affects the ALJ’s decision. This is because the Commissioner concedes the ALJ

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harmfully erred, the ALJ’s decision should be reversed, and the case should be remanded for

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further administrative proceedings. It would be appropriate for the ALJ, on remand, to assess the

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Ms. Nunes attached to her opening brief the omitted Legacy Salmon Creek records. Dkt. 14.

ORDER REVERSING THE COMMISSIONER AND REMANDING
UNDER SENTENCE FOUR - 2

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impact of the Legacy Salmon Creek records as the ALJ reassesses the medical evidence and the

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opinions of Dr. Nakashima.

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For the reasons above, the Court REVERSES the Commissioner’s final decision and

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REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. §

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405(g). On remand, the ALJ shall supplement the administrative record with additional, relevant

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materials, including the evidence already properly presented to the Appeals Council, i.e., the

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Legacy Salmon Creek records, hold a new hearing, issue a new decision that reviews the medical

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record anew, reassess Ms. Nunes’ RFC as appropriate, and proceed to steps four and five as

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needed.

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DATED this 24th day of April, 2018.

A
BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER REVERSING THE COMMISSIONER AND REMANDING
UNDER SENTENCE FOUR - 3