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 Plaintiff’s date of birth is redacted back to the year of birth in accordance with the

General Order of the Court regarding Public Access to Electronic Case Files, pursuant to the

official policy on privacy adopted by the Judicial Conference of the United States.

REPORT AND RECOMMENDATION RE:

SOCIAL SECURITY DISABILITY APPEAL

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ABBAS H. AL-IMGHASHGHASH,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner

of Social Security,

Defendant.

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CASE NO. C06-0058-JCC

REPORT AND RECOMMENDATION

RE: SOCIAL SECURITY

DISABILITY APPEAL

Plaintiff Abbas H. Al-Imghashghash proceeds through counsel in his appeal of a final

decision of the Commissioner of the Social Security Administration (Commissioner). The

Commissioner denied plaintiff’s application for Supplemental Security Income (SSI) benefits and

Disability Insurance (DI) benefits after a hearing before an Administrative Law Judge (ALJ).

Having considered the ALJ’s decision, the administrative record (AR), and all memoranda of

record, it is recommended that this matter be REMANDED for further administrative proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1969.1 He completed high school in Iraq and some postCase 2:06-cv-00058-JCC Document 18 Filed 08/31/06 Page 1 of 7
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REPORT AND RECOMMENDATION RE:

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secondary school. Plaintiff previously worked as a dishwasher, cashier, and seafood processor.

Plaintiff filed applications for SSI and DI on September 9, 2002, with a protective filing

date of August 26, 2002, alleging disability beginning April 29, 1997 due to a right eye injury,

brain injury, and left arm injury. (AR 78-80, 192, 503-07.) His applications were denied initially

and on reconsideration, and he timely requested a hearing. On May 27, 2004, ALJ Edward

Nichols held a hearing, taking testimony from plaintiff and medical expert Dr. Norman Gustofson.

(AR 545-91.) On November 10, 2004, ALJ Nichols issued a decision finding plaintiff not

disabled. (AR 28-34.)

Plaintiff timely appealed. The Appeals Council denied plaintiff’s request for review on

November 17, 2005, making the ALJ’s decision the final decision of the Commissioner. (AR 9-

13.) Plaintiff appealed this final decision of the Commissioner to this Court.

JURISDICTION

The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not

engaged in substantial gainful activity during the period at issue. At step two, it must be

determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff’s status

post head injury and severe depression severe. Step three asks whether a claimant’s impairments

meet or equal a listed impairment. The ALJ found that plaintiff’s impairments did not meet or

equal the criteria for any listed impairments. If a claimant’s impairments do not meet or equal a

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REPORT AND RECOMMENDATION RE:

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listing, the Commissioner must assess RFC and determine at step four whether the claimant has

demonstrated an inability to perform past relevant work. The ALJ assessed plaintiff’s RFC and

found him able to perform a limited range of light work, including his past relevant work as a

convenience store cashier or parking lot cashier. If a claimant demonstrates an inability to perform

past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the

claimant retains the capacity to make an adjustment to work that exists in significant levels in the

national economy. Finding plaintiff not disabled at step four, the ALJ did not proceed to step five.

This Court’s review of the ALJ’s decision is limited to whether the decision is in

accordance with the law and the findings supported by substantial evidence in the record as a

whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more

than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

(9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

2002).

Plaintiff initially requested remand for an award for benefits in this case. However, in

reply, plaintiff agreed with the Commissioner that a “sentence four” remand for further

administrative proceedings would be appropriate. See 42 U.S.C. § 405(g) (“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 only remaining dispute relates to new evidence the Commissioner

submitted with her memorandum requesting remand. Plaintiff also requests that this Court provide

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 Pursuant to a sentence six remand, “[t]he court . . . may at any time order additional

evidence to be taken before the Commissioner . . . , 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). 

REPORT AND RECOMMENDATION RE:

SOCIAL SECURITY DISABILITY APPEAL

PAGE -4

specific directions to the Commissioner in conducting further administrative proceedings.

New Evidence Submitted by Commissioner

The Commissioner asserted the need for further administrative proceedings based, in part,

on the recent discovery of earnings posted to plaintiff’s earnings record for the years 2004 and

2005 – $11,396.24 and $5,305.85 respectively. ( See Dkt. 15 at 6-7 & Dkt. 16.) The

Commissioner states that this information must be addressed by the ALJ to determine if any of the

earnings represent substantial gainful activity during the alleged period of disability, and because

the additional earnings provide plaintiff with additional quarters of coverage and will extend

plaintiff’s date last insured. The Commissioner further states that, although evidence not part of

the record before the ALJ is ordinarily not reviewable by the courts other than pursuant to

sentence six of 42 U.S.C. § 405(g),2

 other errors in the ALJ’s decision call for the remand of the

entire matter pursuant to sentence four. Plaintiff responds that the earnings, if accurate, are not

part of the administrative record in these proceedings and that the Commissioner lacks any

statutory or regulatory basis to file additional evidence that does not relate to the decision before

the Court.

As indicated above, the parties agree that this matter should be remanded for further

administrative proceedings. On remand, “[a]ny issues relating to [plaintiff’s] claim may be

considered by the administrative law judge whether or not they were raised in the administrative

proceedings leading to the final decision in [his] case.” 20 C.F.R. §§ 404.983, 416.1482

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(addressing cases remanded by a federal court). Accordingly, upon remand of this matter for

further administrative proceedings, the ALJ may consider plaintiff’s earnings during the relevant

time period and any evidence pertinent to that step one inquiry.

Directions on Remand

In accordance with plaintiff’s request, the undersigned provides guidance for the ALJ on

remand. On remand, the ALJ should do the following:

• Evaluate plaintiff’s mental impairments pursuant to the requirements of 20 C.F.R. §§

404.1520a(e)(2) and 416.920a(e)(2).

• Reassess physicians’ opinions. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996)

(in general, more weight should be given to the opinion of a treating physician than to a nontreating physician, and more weight to the opinion of an examining physician than to a nonexamining physician; where not contradicted by another physician, a treating or examining

physician’s opinion may be rejected only for “‘clear and convincing’” reasons; where contradicted,

a treating or examining physician’s opinion may not be rejected without “‘specific and legitimate

reasons’ supported by substantial evidence in the record for so doing.” (quoting Baxter v.

Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991) and Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.

1983)). In particular, the ALJ should:

• Address the opinions of treating physician Dr. William Longstreth, including his

diagnoses of opthlmoplegia with dipopia, central pain syndrome with dysesthesias

in the left upper extremity, and post-traumatic neuropsychiatric syndrome;

• Address the opinions of examining physicians Drs. Elena Robinson, Dana Harmon,

Kenneth Muscatel, Ronald Early, and Alan Breen;

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• Address the opinions of the state agency psychologists that plaintiff was limited to

simple tasks and should not work directly with the public; and

• Address the results of a physical capacities evaluation conducted in June 2000

which indicated plaintiff could perform work in the “sedentary-light” category.

(AR 389-92).

 • Reassess plaintiff’s testimony. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th

Cir. 2001) (absent evidence of malingering, an ALJ must provide clear and

convincing reasons to reject a claimant’s testimony); Light v. Social Sec. Admin.,

119 F.3d 789, 792 (9th Cir. 1997) (“In weighing a claimant’s credibility, the ALJ

may consider his reputation for truthfulness, inconsistencies either in his testimony

or between his testimony and his conduct, his daily activities, his work record, and

testimony from physicians and third parties concerning the nature, severity, and

effect of the symptoms of which he complains.”); Lester, 81 F.3d at 834 (“General

findings are insufficient; rather, the ALJ must identify what testimony is not

credible and what evidence undermines the claimant’s complaints.”); Social

Security Ruling 96-7p.

• Address evidence of medication side effects.

• Further consider and make new findings at all steps of the sequential evaluation

process, including whether plaintiff engaged in substantial gainful activity during

the period at issue, the reassessment of plaintiff’s RFC, the inclusion of limitations

to account for all of plaintiff’s impairments, and, if necessary, an assessment at step

five.

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CONCLUSION

This matter should be REMANDED for further administrative proceedings consistent with

the above discussion. A proposed order accompanies this Report and Recommendation. 

DATED this 30th day of August, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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