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Lopez v. Astrue

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
Jun 11, 2013
CASE NO. C12-1810-MJP (W.D. Wash. Jun. 11, 2013)

Opinion

CASE NO. C12-1810-MJP

06-11-2013

CHRISTINA M LOPEZ, Plaintiff, v. MICHAEL J. ASTRUE, Defendant.


ORDER ON OBJECTIONS AND

ADOPTING REPORT AND

RECOMMENDATION

This matter comes before the Court on Plaintiff's objections to the Report and Recommendation (R&R) of the Honorable Brian Tsuchida, United States Magistrate Judge. (Dkt. No. 26.) Having reviewed Plaintiff's complaint (Dkt. No. 6), the Administrative Record (Dkt. No. 14), the parties briefing (Dkt. No. 21, 24, 25), the Report and Recommendation (Dkt. No. 26), Plaintiff's objections (Dkt. No. 27), the government's response (Dkt. No. 28), and the remaining record, the Court ADOPTS the Report and Recommendation, AFFIRMS the Commissioner's decision, and DISMISSES this action with prejudice.

Plaintiff seeks judicial review of the final administrative decision of the Commissioner of Social Security denying her applications for disability insurance benefits under Title II of the Social Security Act and for Supplemental Security Income benefits under Title XVI. Plaintiff had applied for disability insurance benefits in March 2009. Her claim for benefits was denied twice. An Administrative Law Judge ("ALJ") found Plaintiff was not disabled. Following that decision, Plaintiff sought review and presented additional evidence to the Appeals Counsel, which did not remand the case for additional proceedings. Judge Tsuchida recommended affirming the Commissioner's decision and dismissing the case with prejudice. (Dkt. No. 26.)

Plaintiff objects to the R&R on the grounds Judge Tsuchida applied the wrong legal standard for Appeals Council's consideration of new evidence. She claims the Appeals Counsel should have remanded the case to the ALJ for consideration of the new evidence. She claims it is a per se legal error for this Court to consider evidence never before the ALJ. (Dkt. No. 2.)

Plaintiff's argument misstates the law in this Circuit. In Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157 (9th Cir. 2012), the Ninth Circuit held:

Accordingly, we hold that when 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.
Id. at 1163. This Court must consider the record as whole, including evidence never before the ALJ and determine whether that evidence substantially supports the ALJ's decision. Id. Judge Tsuchida did not err in considering the evidence submitted to the Appeals Counsel. Nor does SEC v. Chenery Corp., 332 U.S. 194 (1947), a pre-Brewes case, which did not address evidence presented to an Appeals Counsel, require remand whenever new evidence is offered after the ALJ's decision. As Brewes mandates, the correct procedure for the district court is to determine if the new evidence deprives the ALJ decision of substantial support. This is exactly the approach taken by the R&R.

Plaintiff argues by considering the new evidence, the R&R added missing rational to the ALJ's decision, which constitutes a legal error. The only instance pointed to by Plaintiff is evidence submitted regarding her worsening condition. But, under Brewes, this Court must ensure the ALJ's decision contains sufficient support, which Judge Tsuchida did. Moreover, as the Respondent correctly notes, the proper remedy is for Plaintiff to file a new application for benefits of supplemental social security income.

The Court does note instances where the R&R refers to the materiality standard of Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001), which is the incorrect legal standard. But, these were passing references and the R&R correctly reached its conclusion by applying the standard in Brewes. (Dkt. No. 26 at 6.)

Conclusion

Because Judge Tsuchida applied the correct legal standard, the Court ADOPTS the Report and Recommendation, AFFIRMS the Commissioner's decision, and DISMISSES this action with prejudice. The clerk is ordered to provide copies of this order to all counsel and to Judge Tsuchida.

______________

Marsha J. Pechman

Chief United States District Judge


Summaries of

Lopez v. Astrue

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
Jun 11, 2013
CASE NO. C12-1810-MJP (W.D. Wash. Jun. 11, 2013)
Case details for

Lopez v. Astrue

Case Details

Full title:CHRISTINA M LOPEZ, Plaintiff, v. MICHAEL J. ASTRUE, Defendant.

Court:UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Date published: Jun 11, 2013

Citations

CASE NO. C12-1810-MJP (W.D. Wash. Jun. 11, 2013)