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Moore v. Colvin

United States District Court, D. Kansas

May 15, 2015

WILLIE J. MOORE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act).[1] Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's decision.

I. Background

Plaintiff applied for DIB, alleging disability beginning December 31, 2008. (R. 33, 129). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He argues that remand is necessary because the Appeals Council erroneously rejected new, material, and chronologically relevant evidence which was submitted after the ALJ's decision, which related to the time period before the ALJ made his decision, and which if properly considered would corroborate Plaintiff's alleged disability onset date. The Commissioner argues that the Appeals Council properly determined that the new evidence does not pertain to the relevant time period and rejected it. The court finds no error in the Appeals Council's rejection of Plaintiff's newly-submitted evidence.

The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The Act provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it 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); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

The Commissioner next evaluates steps four and five of the sequential process- determining at step four whether, in light of the RFC assessed, claimant can perform his past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

II. Discussion

The ALJ determined that Plaintiff's date last insured for disability insurance benefits was June 30, 2010 and that before that date he had the medically determinable impairment of bipolar disorder. (R. 35). He determined at step two of the sequential evaluation process that Plaintiff had not met his burden to show that he had an impairment or combination of impairments that was severe within the meaning of the Act. (R. 35-38). Consequently, the ALJ determined that Plaintiff was not disabled at any time after his alleged onset date of December 31, 2008 through his date last insured, June 30, 2010, and he denied Plaintiff's application for benefits. (R. 39).

Plaintiff disagreed with the decision, and sought Appeals Council review. (R. 27-29). He provided additional evidence to the Appeals Council along with a Brief from his attorney arguing that the additional evidence, when considered properly in light of Social Security Ruling (SSR) 93-10[2] would establish onset of disability before Plaintiff's date last insured. (R. 245-49). The additional evidence consisted of MRI reports of the right shoulder and cervical spine which were new evidence (R. 6-8), and treatment records from Comcare of Sedgwick County, most of which were duplicates contained elsewhere in the administrative record before the ALJ. Compare (R. 9-26) with (R. 282-314). The Appeals Council accepted counsel's Brief, made it a part of the administrative record (R. 4), and considered it when deciding whether to review the ALJ's decision. (R. 1-2). It "found that this information does not provide a basis for changing the Administrative Law Judge's decision" (R. 2), and denied Plaintiff's request for review. (R. 1). However, in considering the "additional evidence, " the council rejected it and did not make it a part of the administrative record:

We also looked at medical records from Paul J. Hutsey, M.D., dated November 4, 2011. The Administrative Law Judge decided your case through June 30, 2010, the date you were last insured for disability benefits. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled at the time you were last insured for disability benefits.

(R. 2).

A. ...


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