OPINION
Steven Taylor appeals the denial of his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. Taylor claims he is
BACKGROUND
On March 29, 2006, the Administrative Law Judge (ALJ) issued a written decision finding Taylor not disabled as defined by the Social Security Act and denying Taylor’s application. Taylor then submitted a request for review of the ALJ’s decision to the Appeals Council.
With his initial request for review, Taylor submitted a psychiatric evaluation from September 7, 2006, and a medical source statement dated November 15, 2006, both from Dr. Jeffrey D. Thompson, M.D. Dr. Thompson’s psychiatric evaluation was a follow-up from previous evaluations he conducted in 2001 and 2003. In his evaluation, Dr. Thompson noted Taylor’s diagnosis of panic disorder with agoraphobia. Dr. Thompson’s medical source statement found Taylor markedly limited in his ability to perform several work-related functions. Dr. Thompson also noted a “substantial loss” in multiple basic mental activities.
The Appeals Council initially dismissed as untimely Taylor’s request for review, but then, upon a writ of mandamus from the district court, set aside its earlier action. The Appeals Council then considered additional medical evidence Taylor submitted, including opinions from Dr. Glen O’Sullivan, M.D., Dr. Mark Green-berg, M.D., and Dr. Zakir Ali, M.D., all dating from July 2006 to June 2008. The Appeals Council concluded that all of the new information concerned a time after Taylor’s insured date of December 31, 2004, and, therefore, did “not affect the decision about whether [Taylor] was disabled at the time [he] was last insured for disability benefits.” The Appeals Council again denied Taylor’s request for review, finding no basis for changing the ALJ’s decision, thereby making the ALJ’s written decision the final decision subject to judicial review.
DISCUSSION
I.
As an initial matter, the Commissioner argues that the Appeals Council’s decision denying Taylor’s request for review is itself unreviewable by our court. When the Appeals Council denies a request for review, it is a non-final agency action not subject to judicial review because the ALJ’s decision becomes the final decision of the Commissioner.
See Klemm v. Astrue,
But Taylor is not arguing that the Appeals Council’s decision to deny his request for review should be reversed. Rather, Taylor asks us to review the evidence submitted to the Appeals Council and credit the evidence as true because that evidence was improperly rejected by the Appeals Council. Under these circumstances, Taylor asks us to remand to the
Instead, Taylor argues that his situation is like that in
Ramirez v. Shalala,
where we held that the Appeals Council improperly rejected a treating physician’s opinion, and we remanded to the district court for an immediate award of benefits.
According to Taylor, the Appeals Council improperly rejected Dr. Thompson’s psychiatric evaluation and medical source statement because the Appeals Council believed that those two opinions concerned Dr. Thompson’s medical views after December 31, 2004, when Taylor’s disability insurance coverage expired. Although Dr. Thompson’s medical source statement is dated November 15, 2006, the medical source statement indicates that Dr. Thompson’s medical assessment encompassed the period from the date of disability onset in August 1999, around the time of Taylor’s work-related injury, until the date of his evaluation. During the intervening five years between 1999 and 2004 when Taylor’s insured coverage was in effect, Dr. Thompson examined Taylor twice; supervised Susan Wrona-Sexton, the licensed nurse practitioner who treated Taylor; and approved Wrona-Sexton’s prescription of Taylor’s medications. The Commissioner does not contest that Dr. Thompson’s opinion concerns the status of Taylor’s mental impairments and limitations before the expiration of his insured status. Moreover, “[t]his court has specifically held that medical evaluations made after the expiration of a claimant’s insured status are relevant to an evaluation of the preexpiration condition.”
Lester v. Chater,
It appears, however, that the Appeals Council did not consider Dr. Thompson’s opinion at all. Taylor submitted Dr. Thompson’s documents to supplement his original request for review of the ALJ’s decision. This original request for review was denied because the Appeals Council believed the request had been filed late. The Appeals Council, however, set aside its earlier action upon a writ of mandamus from the district court. It was during the time between the ordering of the writ of mandamus and the Appeals Council’s reconsideration of Taylor’s case that Taylor filed the other documents from Dr. Green-berg, Dr. Ali, and Dr. O’Sullivan in support
Because Dr. Thompson’s opinion concerned his assessment of Taylor’s mental health since his alleged disability onset date in 1999, it related to the period before Taylor’s disability insurance coverage expired in 2004, and before the ALJ’s decision in 2006. Thus, Dr. Thompson’s opinion should have been considered. See 20 C.F.R. § 404.970(b) (“If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision.”). Where the Appeals Council was required to consider additional evidence, but failed to do so, remand to the ALJ is appropriate so that the ALJ can reconsider its decision in light of the additional evidence. See id.
Accordingly, we remand to the ALJ for consideration of Dr. Thompson’s psychiatric evaluation and medical source statement.
See Ramirez,
II.
The Appeals Council’s failure to consider Dr. Thompson’s opinion on review was not the only mistake made. The ALJ’s previous five-step sequential analysis also contained several errors.
At step three, the ALJ failed to explain adequately his evaluation of the combined effect of Taylor’s impairments, both severe and non-severe, and why they did not meet or equal any of those on the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, particularly listing 12.06, anxiety-related disorders, and listing 12.07, somatoform disorders.
See
20 C.F.R. § 404.1523;
Marcia v. Sullivan,
At step four, the ALJ’s residual functional capacity determination was incomplete because it improperly discounted significant evidence in the record favorable to Taylor’s position.
The ALJ gave primacy to the opinions of non-treating, non-examining medical consultants, Dr. John Crosson, Ph.D., and Dr. Jay Goodman, M.D., and gave weight to the other medical opinions in the record only to the extent that they were consistent with those of the medical consultants. For example, the ALJ gave substantial weight to examining psychiatrist Dr. S. David Glass, M.D., whose opinion was generally consistent with Dr. Crosson’s. But Dr. Glass also diagnosed Taylor with a pain disorder, and the ALJ rejected this diagnosis because it was inconsistent with Dr. Crosson’s opinion. The ALJ rejected this diagnosis without giving a specific and legitimate reason supported by substantial evidence in the record.
See Regennitter v. Comm’r of Social Sec. Admin.,
The AU also erroneously stated that nurse practitioner Wrona-Sexton is not a medical source and discounted her evidence. Under the Social Security Act regulations, 20 C.F.R. § 404.1513(d)(1), nurse practitioners are listed among the examples of “medical sources.”
1
To the extent nurse practitioner Wrona-Sexton was working closely with, and under the supervision of, Dr. Thompson, her opinion is to be considered that of an “acceptable medical source.”
See Gomez v. Chater,
Moreover, the AU did not provide specific, germane reasons for discounting lay witness testimony from Taylor’s wife, Wanda, and Taylor’s friend, Elin Keffr.
See Bruce v. Astrue,
The AU also rejected Taylor's testimony about his symptoms insofar as it conflicted with the AL J’s residual functional capacity determination. But Taylor provided objective medical evidence of various physical and mental ailments, and the ALJ made no explicit finding of malingering. Thus, the ALJ had to support his credibility finding about Taylor’s testimony with specific, clear and convincing reasons.
See Lingenfelter,
For example, the AU gave substantial weight to Dr. Goodman’s and Crosson’s opinion that most of Taylor’s pain was due to his habituation to narcotmedication. But beyond the opinions the two non-treating consultants, there no evidence in the record that Taylor’s limitations were due to his methadone prescription, or that his several impairments would desist if he weaned himself off of methadone. And, while recognizing that Taylor’s physical symptoms “may wax and wane,” the ALJ held against Taylor two instances where he was able to function, though his alleged disability involves attacks of muscle weakness or loss of mus-movement that come and go. This was because “[o]ne does not need to be ‘utterly incapacitated’ in order to be disabled.”
Vertigan v. Halter,
Finally, at step five, the ALJ failed to ask the vocational expert whether there was a conflict between her testimony and the Dictionary of Occupational Titles.
See
SSR 00-4p, at *2;
Massachi v. Astrue,
III.
Remand for further proceedings is appropriate where there are outstanding issues that must be resolved before a disability determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated.
See Vasquez v. Astrue,
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s decision affirming the Commissioner’s decision and REMAND to the ALJ for consideration of Dr. Thompson’s opinion evidence and for reconsideration of Taylor’s disability claims.
REVERSED AND REMANDED.
Notes
. Under Oregon law, to become a certified nurse practitioner a nurse must have an Oregon Registered Nurse license, obtain a master’s degree or a doctoral degree in nursing, graduate from a nurse practitioner program specific to the category in which a nurse seeks certification, and fulfill multiple practice requirements. Nurse practitioners may acquire prescriptive authority. See Nurse Practitioner (NP) Certification Information, available at http://www.oregon.gov/OSBN/AdvPrac Licensure.shtml.