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Fasse v. Colvin

United States District Court, D. Kansas

June 26, 2015

EMMA ANN FASSE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602 and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Commissioner's decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

I. Background

Plaintiff applied for SSI benefits on November 5, 2010, alleging disability beginning January 1, 2002. (R. 73, 257-60). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. Plaintiff claims that the Administrative Law Judge (ALJ) erred in failing to identify the bases for his "Paragraph B" and "Paragraph C" findings at step three in the sequential evaluation process; erred in his credibility determination; and erred in evaluating the medical opinions of Dr. Morales, Plaintiff's treating psychiatrist, and Dr. Sheehan, a psychologist who examined Plaintiff and prepared a report of that examination after the ALJ issued his decision in this case. Plaintiff also claims that as a result of the alleged errors in evaluating Dr. Morales's and Dr. Sheehan's opinions, the ALJ's residual functional capacity (RFC) assessment is erroneous.

The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of 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 in the record 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. § 416.920; 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 she has a severe impairment(s), and whether the severity of her 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. § 416.920(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 her past relevant work, if any; 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).

The court finds no error, and orders that judgment shall be entered in accordance with the fourth sentence of 42 U.S.C. § 405(g) affirming the Commissioner's decision. The court first addresses issues regarding whether Dr. Sheehan's report should be considered by this court in its review of the Commissioner's final decision. It determines that Dr. Sheehan's report may not be considered in this case, and then considers the other errors alleged in Plaintiff's Brief.

II. Evidence Submitted for the First Time to the Appeals Council

On October 30, 2012, the ALJ issued his decision in this case. Thereafter, Dr. Sheehan examined Plaintiff on August 12, 2013, and prepared a report of that examination dated September 2, 2013. (R. 28-43). On September 3, 2013, Dr. Sheehan completed a Psychiatric Review Technique form (PRTF)[1] and a Mental Residual Functional Capacity Assessment (Mental RFC) form regarding Plaintiff's mental impairments and mental abilities. (R. 44-58). On November 2, 2013, Plaintiff's attorney prepared a cover letter and faxed that letter along with Dr. Sheehan's report, opinion forms, and curriculum vita[2] to the Appeals Council. (R. 26-62). Counsel prepared a brief for the Appeals Council dated November 19, 2013 (R. 9-10), Dr. Sheehan prepared a "Supplemental Statement of Psychological Evaluation" dated November 25, 2013 (R. 11), and on December 13, 2013 those documents along with a portion of Dr. Sheehan's report, opinion forms, and curriculum vita were faxed to the Appeals Council. (R. 7-25).

On February 27, 2014, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (R. 1-6). In its notice of that denial, the Appeals Council stated that it had "considered the reasons [Plaintiff] disagree[s] with the [ALJ's] decision and the additional evidence listed on the enclosed Order of Appeals Council." (R. 1). The Order of Appeals Council enclosed in the notice of the Appeals Council's denial, shows only "Exhibit 10E Representative's contentions dated November 2, 2013 and November 19, 2013" as the additional evidence received and which the Council was "making part of the record." (R. 6). Exhibit 10E is the last exhibit in the "E" portion of the administrative record, and consists of counsel's cover letter dated November 2, 2013, and her brief dated November 19, 2013 which were faxed to the Appeals Council on November 2, 2013 and December 13, 2013, respectively. (R. 330-33). That exhibit does not contain any portion of the report, opinion forms, or curriculum vita from Dr. Sheehan.

The Appeals Council also acknowledged the records received from Dr. Sheehan, and explained how it had handled those records:

We looked at the reports from Sheehan Psychological Services. The Administrative Law Judge decided your case through October 30, 2012. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before October 30, 2012.
If you want us to consider whether you were disabled after October 30, 2012, you need to apply again. The new information you submitted is available in your electronic file for you to use in your new claim. If you need a paper copy of this evidence, you should:
• Contact us at the address noted at the top of this letter; or
• Contact your local field office at the address noted at the bottom of this letter when you file a new claim.
If you file a new claim for supplemental security income within 60 days after you receive this letter, we can use December 17, 2012, the date of your request for review, as the date of your new claim. The date you file a claim can make a difference in the amount of benefits we can pay.

(R. 2).

Upon reviewing the record evidence and Plaintiff's briefs, this court recognized that the Appeals Council's notice might be understood to require that Dr. Sheehan's records are not a part of the administrative record in this case, and it also recognized that Plaintiff's Brief was relying on Dr. Sheehan's records to establish error in the Commissioner's final decision. Therefore, the court ordered supplemental briefing on "the issue of whether Dr. Sheehan's report is qualifying evidence which should be considered by the court in its review of the decision below." (Doc. 22 p.5).

On June 2, 2015, the Commissioner filed her supplemental brief in which she argues that Dr. Sheehan's report is not a part of the record on review, and that "[e]ven if Dr. Sheehan's report is considered part of the record, ... it would not warrant remanding the case." (Doc. 23 p.1) (hereinafter Comm'r Supp.). In her supplemental brief, Plaintiff argues "that Dr. Sheehan's report is part of the administrative record; is subject to this Court's [sic] de novo review; and is qualifying evidence." (Doc. 24 p.1) (hereinafter Pl. Supp.). As a preliminary matter, the court finds that the Appeals Council determined that Dr. ...

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