Opinion
Civil No. 99-821-FR
February 19, 2001
Tim Wilborn Portland, Oregon Attorney for Plaintiff.
Kristine Olson United States Attorney William W. Youngman Assistant United States Attorney Portland, Oregon. Norman M. Barbosa Special Assistant United States Attorney Seattle, Washington Attorneys for Defendant.
OPINION AND ORDER
The matter before the court is the defendant's motion to alter and amend judgment (#24).
BACKGROUND
On October 31, 2000, this court entered an opinion, order and judgment affirming the Commissioner's final decision to deny the plaintiff's application for Supplemental Security Income disability benefits under Title XVI of the Social Security Act. Within the opinion, this court concluded that the argument that the Administrative Law Judge (ALJ) failed to properly develop the record by failing to request any medical source statements from the plaintiff's doctors had been waived because the plaintiff did not raise this argument before the ALJ or the Appeals Council. This court stated:
In Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), the court explained that "appellants must raise issues at their administrative hearings in order to preserve them on appeal." Harris was represented before the ALJ by an attorney with extensive experience in Social Security litigation. Through his counsel, Harris did not object to the state of the record or the absence of any medical source statements at any point during the administrative review of this case. This court concludes that Harris has waived any argument that the ALJ failed to properly develop the record. In addition, there is no evidence in this record to support his claim that the administrative record was deficient in any significant manner.
The Commissioner moves the court to amend its opinion by striking the discussion of administrative waiver.
CONTENTIONS OF THE PARTIES
The Commissioner concedes that recent United States Supreme Court precedent requires the conclusion that Harris did not waive his argument by failing to raise it before the ALJ or the Appeals Council. The Commissioner contends, however, that striking the discussion of administrative waiver does not change the outcome of this case.
The plaintiff agrees that the discussion of administrative waiver should be withdrawn, but contends that the court should remand the case for further proceedings based upon the merits of the underlying issue, that is, that the ALJ failed to properly develop the record because the ALJ did not request any medical source statements from the plaintiff's doctors. The plaintiff explains: "Plaintiff believes all of the district court's conclusions are wrong. Plaintiff is not waiving the right to appeal any of those errors, and specifically is not waiving the right to appeal the merits of the issue affected by Defendant's withdrawal of his administrative waiver defense." Plaintiff's Response to Defendant's Motion to Alter and Amend Judgment, p. 2 (emphasis in original).
ANALYSIS
In Sims v. Apfel, ___ U.S. ___, 120 S.Ct. 2080, 2086 (2000), the United States Supreme Court explained that "[c]laimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues." This court was not aware of the Sims case at the time the judgment was entered in this case. The court finds that it is appropriate to amend the opinion based upon the mistake in the controlling law. The court will amend the opinion to withdraw the discussion of administrative waiver contained on page 7, line 26 to page 8, line 9.
In addition to the discussion of administrative waiver, the court concluded that "there is no evidence in this record to support his claim that the administrative record was deficient in any significant manner." Opinion, p. 8. The plaintiff asserted that the court should remand this case and require that the ALJ "request medical source statements from the [plaintiff]'s medical sources." Plaintiff's Opening Brief, p. 13.
The ALJ had a duty to fully and fairly develop the record. 20 C.F.R. § 416.1444. An ALJ is generally required to seek medical source statements from every medical care giver. The regulations provide, in part: "Although we will request a medical source statement about what you can still do despite your impairment(s), the lack of the medical source statement will not make the report incomplete." 20 C.F.R. § 416.913(b)(6). This court adheres to its prior ruling that "there is no evidence in this record to support his claim that the administrative record was deficient in any significant manner," Opinion, p. 8, and that there is substantial evidence in the record to support the decision of the Commissioner that the plaintiff retains the residual functional capacity to perform work. Opinion, p. 11.
CONCLUSION
The defendant's motion to alter and amend judgment (#24) is granted as follows: The court will enter an amended opinion to withdraw the discussion of an administrative waiver contained in page 7, line 26 to page 8, line 9, and enter an amended order and an amended judgment affirming the decision of the Commissioner.
IT IS SO ORDERED.