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It appears that the caption in this case erroneously lists the plaintiff’s last name as “Somer” rather than “Somers.” 

ORDER 

Page 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JUDITH C. SOMER,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of

Social Security Administration,

Defendant.

Case No. C06-5007RJB

ORDER ADOPTING REPORT

AND RECOMMENDATION

This matter comes before the Court on the Report and Recommendation of Magistrate Judge J.

Kelley Arnold (Dkt. 16) and the plaintiff’s objections thereto (Dkt. 17). The Court has reviewed the Report

and Recommendations, the plaintiff’s objections, and the file herein.

I. BACKGROUND AND DISCUSSION

The Report and Recommendation recommends that the decision of the ALJ be affirmed. The

plaintiff objects on the following grounds: (1) failure to consider medical reports submitted to the appeals

council; (2) failure to properly evaluate Ms. Somers’s1

 subjective complaints of pain; and (3) the opinion of

the vocational expert is invalid. Dkt. 17.

A. ADDITIONAL EVIDENCE SUBMITTED TO THE APPEALS COUNCIL

The Report and Recommendation finds that only evidence available to the ALJ before the decision

was rendered is subject to review before this Court. Dkt. 16 at 5-6. The plaintiff objects on the grounds

that medical records of her bowel obstruction surgery, performed after the ALJ rendered a decision, and

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ORDER 

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Dr. Weber’s September 2005 followup evaluation were submitted to the Appeals Council and are part of

the record to be reviewed by this Court. The defendant filed no response to the plaintiff’s objections but

contended in the response that the denial of review by the Appeals Council is not itself subject to review by

this Court and that the plaintiff must therefore establish that the Olympic Medical Center records and Dr.

Weber’s followup report are new evidence that is material and was omitted for good cause. Dkt. 12 at 11.

The Court’s scope of review is governed by 42 U.S.C. § 405(g), which provides as follows:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or

without remanding the cause for a rehearing. . . . The court may, on motion of the Commissioner of

Social Security made for good cause shown before the Commissioner files the Commissioner's

answer, remand the case to the Commissioner of Social Security for further action by the

Commissioner of Social Security, and it may at any time order additional evidence to be taken

before the Commissioner of Social Security, but only upon a showing that there is new evidence

which is material and that there is good cause for the failure to incorporate such evidence into the

record in a prior proceeding.

42 U.S.C. §405(g).

The defendant cites evidence indicating that the Third and Eighth Circuits do not consider

additional evidence submitted to the Appeals Council to be part of the record on review. See Matthews v.

Apfel, 239 F.3d 589, 594 (3d Cir. 2001); Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995). The Ninth

Circuit has taken a different approach. See Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000)

(“However, Appellant submitted additional materials to the Appeals Council in conjunction with his request

that they review the ALJ Decision. . . . We properly may consider the additional materials because the

Appeals Council addressed them in the context of denying Appellant's request for review.”); Gomez v.

Chater, 74 F.3d 967, 971 (9th Cir. 1996) (evidence obtained after the ALJ’s decision and submitted to the

Appeals Council is part of the record on review); Ramirez v. Shalala, 8 F.3d 1449, 1451 (9th Cir. 1993)

(considering the ALJ’s decision and additional material submitted to the Appeals Council because the

Appeals Council denied review after considering the case on its merits and examining the entire record,

including the additional materials); Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990) (upholding

Appeals Council’s decision on evidence submitted after the ALJ rendered a decision). The Court should

therefore hold that Dr. Weber’s report submitted to the Appeals Council after the ALJ rendered a decision

is part of the record to be reviewed. 

Having determined that additional evidence submitted to the Appeals Council is to be considered as

part of the record in this case, the Court must determine whether medical records from the Olympic

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ORDER 

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Medical Center and Dr. Weber’s September 2005 report warrant a remand.

B. PERSUASIVENESS OF ADDITIONAL EVIDENCE

The plaintiff contends that the ALJ improperly weighed the medical evidence. Specifically, Ms.

Somers contends that her surgery at the Olympic Medical Center after the ALJ rendered a decision

supports other evidence in the record that she suffers from abdominal pain, nausea, and vomiting and that

these impairments are severe. She also contends that Dr. Weber’s September report should be considered.

1. Olympic Medical Center Records

On July 30, 2005, Ms. Somers was admitted to the Olympic Medical Center for a small bowel

obstruction, which was treated surgically. Dkt. 8 at 400. The plaintiff contends that this surgery supports

other evidence in the record of her intestinal problems. See, e.g., Dkt. 8 at 315-16 (Ms. Somers’s

assessment included a “history of gastrectomy, . . . nausea, and vomiting” in March of 2001), 199 (Ms.

Somers was seen in January 2002 for abdominal pain), 365 (peptic ulcer disease in 2004). Ms. Somers

testified as to problems with her bowels during the hearing. Dkt. 8 at 434, 436, 445. The plaintiff fails to

point to evidence in the record demonstrating that her intestinal symptoms, including her bowel

obstruction, affect her ability to work. The Court should therefore hold that the plaintiff’s Olympic Medical

Records do not warrant a remand.

2. Dr. Weber’s September Report

The plaintiff contends that Dr. Weber’s report is significant because it confirms his prior findings

and concludes that the plaintiff is unable to perform most kinds of work. Dkt. 17 at 7. The plaintiff

contends that two aspects of Dr. Weber’s second report merit a remand for additional proceedings.

First, the plaintiff cites Dr. Weber’s notes regarding the plaintiff’s dizziness, incontinence, diarrhea,

abdominal pain, physiologic tremor, and arthritis of the shoulder, neck and hand. Dkt. 17 at 7. The Court

has compared Dr. Weber’s February and September 2005 reports. See Dkt. 8 at 396 (February report), 424

(September report). With the exception of abdominal pain, each of the symptoms referenced in the

plaintiff’s objections appears in both reports. Much of the September report is a nearly verbatim recitation

of the February report. Moreover, the Court notes that the September report is apparently merely a

compilation of previous reports. See Dkt. 8 at 424 (“Richard Linn Rogers [plaintiff’s counsel] - Pt received

unfavorable decision on her claim for SS disability benefits. We request a detailed narrative report which

documents all of her various impairments.”). As set forth in the Report and Recommendation, the ALJ

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ORDER 

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properly considered Dr. Weber’s February report. The plaintiff fails to cite a portion of the September

report that was not contained in the February report and that would merit a remand.

Second, the plaintiff cites a statement in which Dr. Weber assessed the plaintiff’s vocational

abilities. Specifically, Dr. Weber wrote that the plaintiff is a “[p]oor candidate for most forms of work.”

Dkt. 8 at 424. This isolated conclusion does not reference any particular medical findings. To the extent

that it references the plaintiff’s “shoulder, neck and hand arthritis on top of chronic dizziness, incontinence,

diarrhea and abdominal pains,” these findings were properly addressed by the ALJ and do not merit a

remand in light of Dr. Weber’s assessment of the plaintiff’s ability to work.

B. MS. SOMERS’S SUBJECTIVE COMPLAINTS

The plaintiff objects to the Report and Recommendation on the grounds that the ALJ improperly

evaluated Ms. Somers’s subjective complaints of pain. Dkt. 17 at 7. The plaintiff specifically contends that

the ALJ relied too heavily on the report of Dr. Borrone, which expressed “grave reservations” about Ms.

Somers’s subjective complaints and characterized her movements as “too studied” and “deceptive.” Dkt. 8

at 331. 

The ALJ also relied upon Dr. Brem’s report that Ms. Somers’s husband was urging her to seek

social security benefits even though Dr. Brem stated that Ms. Somers’s conditions might not qualify as an

actual disability (Dkt. 8 at 124) and upon Ms. Somers’s receipt of retirement benefits, which serve as a

disincentive for seeking out work (Id. at 346). Taken together, these portions of the record provide

substantial evidence supporting the ALJ’s determination that Ms. Somers was not credible.

C. VOCATIONAL EXPERT OPINION

Finally, the plaintiff contends that the vocational expert’s opinion was invalid because the

hypothetical posed by the ALJ was too vague. This argument is premised upon the plaintiff’s contentions

that the ALJ’s determination of non-severity with regard to several impairments was erroneous. Having

found no error in the ALJ’s analysis of the medical evidence or Ms. Somers’s credibility, the Court should

hold that the ALJ’s hypothetical and reliance on the vocational expert’s testimony were not in error.

II. ORDER

Therefore, it is hereby

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ORDER 

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ORDERED Report and Recommendation of Magistrate JudgeJ. Kelley Arnold (Dkt. 16) is

ADOPTED.

The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of record

and to any party appearing pro se at said party’s last known address.

DATED this 13th day of October, 2006.

ARobert J Bryan

United States District Judge

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