MEMORANDUM OPINION AND ORDER OF REMAND
CHARLES F. EICK, Magistrate Judge.
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a Complaint on April 1, 2015, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on May 20, 2015.
Plaintiff filed a motion for summary judgment on October 22, 2015. Defendant filed a motion for summary judgment on November 23, 2015. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed April 14, 2015.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff asserts disability since July 20, 2009, based on a combination of alleged physical and mental/psychological problems (Administrative Record ("A.R.") 55-56, 61, 225-235, 269-70). In denying benefits, the Administrative Law Judge ("ALJ") found some severe physical impairments but no severe mental/psychological impairments (A.R. 23-26). The Appeals Council considered additional evidence, but denied review (A.R. 1-5).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d at 1163 ("[W]hen 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"; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
DISCUSSION
Social Security Ruling ("SSR") 85-281 governs the evaluation of whether an alleged impairment is "severe":
An impairment or combination of impairments is found "not severe" . . . when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work . . . i.e., the person's impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to perform basic work activities. . . .
If such a finding [of non-severity] is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.
* * *
Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step. Rather, it should be continued.
SSR 85-28 at *2-4. See also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (the severity concept is "a de minimis screening device to dispose of groundless claims") (citation omitted); accord Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005).
In the present case, the medical evidence does not "clearly establish" the non-severity of Plaintiff's alleged mental/psychological problems. Dr. McMahon, a treating physician, opined that the alleged problems have a much more than minimal effect on Plaintiff's ability to work (A.R. 665-667, 669). Dr. Carlin, a consultative examining psychiatrist, opined that Plaintiff's alleged mental/psychological problems moderately limit certain work-related abilities and restrict Plaintiff to jobs requiring no more than "simple one or two step job instructions" (A.R. 651). Dr. Barrons, a non-examining state agency psychologist, similarly opined that Plaintiff is "moderately limited in her ability to maintain concentration, and attention, persistence and pace, in her ability to maintain regular attendance in the work place and perform work activities on a consistent basis" (A.R. 78). At a minimum, therefore, the ALJ's "non-severity" finding violated SSR 85-28 and the Ninth Circuit authorities cited above.
Defendant suggests, inter alia, that the asserted "lack of any significant treatment or clinical findings reasonably lead the ALJ to suspect that the extreme limitation noted in Dr. McMahon's physical capacity forms were [sic] based primarily on Plaintiff's subjective complaints" (Defendant's Motion at 4). Assuming the accuracy of Defendant's suggestion, the ALJ should have developed the record further concerning the actual bases for Dr. McMahon's opinions before predicating a benefits denial on a suspicion that Dr. McMahon's opinions were "based primarily on Plaintiff's subjective complaints." "The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered. This duty exists even when the claimant is represented by counsel." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); accord Garcia v. Commissioner, 768 F.3d 925, 930 (9th Cir. 2014); see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ("Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits. . . ."); Widmark v. Barnhart, 454 F.3d at 1068 (while it is a claimant's duty to provide the evidence to be used in making a residual functional capacity determination, "the ALJ should not be a mere umpire during disability proceedings") (citations and internal quotations omitted); Smolen v. Chater, 80 F.3d at 1288 ("If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record.") (citations omitted). An ALJ's duty to develop the record is "especially important" "in cases of mental impairments." DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
The Court is unable to deem the errors to have been harmless. See generally, McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). Because the circumstances of this case suggest that further administrative review could remedy the ALJ's errors, remand is appropriate. Id. at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative proceedings is the proper remedy "in all but the rarest cases"); Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will credit-as-true medical opinion evidence only where, inter alia, "the record has been fully developed and further administrative proceedings would serve no useful purpose"); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further proceedings rather than for the immediate payment of benefits is appropriate where there are "sufficient unanswered questions in the record").
CONCLUSION
For all of the foregoing reasons,2 Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
LET JUDGMENT BE ENTERED ACCORDINGLY.
