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Freeman v. Berryhill

United States District Court, D. Kansas

February 21, 2017

PATRICIA A. FREEMAN, Plaintiff,
v.
NANCY W. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Administrative Law Judge's (ALJ) 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 DIB and SSI benefits, alleging disability beginning March 10, 2012. (R. 12, 204, 207, 209). At the hearing, she amended her alleged onset date to May 11, 2012. Id. at 12, 30. Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She argues that the Administrative Law Judge (ALJ) erred in evaluating the medical opinion evidence and did not include all of Plaintiff's limitations in the residual functional capacity (RFC) assessed.

         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. §§ 404.1520, 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. § 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 process--determining at step four whether, in light of the RFC assessed, claimant can perform her 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).

         The court finds no error as alleged by Plaintiff, and affirms the Commissioner's decision. Plaintiff attached 254 pages of records in seven documents denominated as supplements attached to her Social Security Brief. (Doc. 12 (hereinafter, Pl. Br.), Attachs. 1-7). In a footnote to her Brief, she explained that she had supplemented the transcript of the record before the Commissioner “with evidence from a prior file that was used by DDS [(the disability determination service)] to make Ms. Freeman's initial determination in this case but was not properly exhibited” by the Social Security Administration in the transcript of the record which was filed with the court in this case. (Pl. Br. 1, n.1). The Commissioner objects to Plaintiff's supplementation, and argues that it is “not a part of the certified administrative record in this case” (Comm'r Br. 14), that the court is without jurisdiction to consider such evidence outside of the pleadings and the transcript, and that Plaintiff has not demonstrated that a remand to consider that evidence in accordance with sentence six of 42 U.S.C. § 405(g) is appropriate. Id. at 14-15. In her Reply Brief, Plaintiff argues that the evidence with which she supplemented the record is not new evidence, but evidence which was considered by the agency in the initial determination and was erroneously omitted from the transcript filed with the court. (Reply 1-2). She argues that if, as the Commissioner asserts, the evidence was not considered by the ALJ, the proper remedy would be to remand to the Commissioner for a proper consideration.

         The court finds it necessary to consider this evidence and these arguments first, and then considers Plaintiff's remaining arguments in the order presented in her Brief.

         II. Supplemental Evidence

         The Commissioner is correct that 42 U.S.C. § 405(g) is the sole basis for the court's jurisdiction to review a decision of the Commissioner. Brandtner v. Dep't of Health and Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998). And, that statute requires the court to make its decision based on the “pleadings and transcript of the record.” 42 U.S.C. § 405(g) (sentence four). But, Plaintiff is also correct that the evidence attached as supplements to her Brief appears to have been used in evaluating her claim at the initial and reconsideration levels of review, since it appears to be included in the listing of “Evidence of Record” in those Disability Determination Explanations. (R. 81-83, 96-98, 116-17, 136-37). However, the evidence in the certified transcript filed with the court does not contain the evidence filed in Plaintiff's supplements, although it includes all of the evidence specifically admitted into the record at the disability hearing held in this case. (R. 32-33); see also (Index1-Index4). At the disability hearing, the ALJ identified all of the exhibits included in the certified transcript of record filed with this court, asked Plaintiff's counsel if “this file” is complete to the best of her knowledge, and counsel replied, “It is.” (R. 33).

         These facts beg the question whether any error resulting from a potentially incomplete transcript may have been invited by Plaintiff and would therefore preclude the court, pursuant to the invited error doctrine, from considering the supplemental evidence or from remanding the case for inclusion of the omitted evidence. It is not pellucid that the invited error doctrine applies in this case because although Plaintiff affirmatively agreed that the record was complete as constituted by the ALJ, she did not specifically argue before the ALJ that the record was complete or that the documents later proffered in her supplements should not be included in the transcript of record.

         Nevertheless, the court need not decide whether the invited error doctrine applies in this case. Plaintiff did not make a motion for remand to reinstate the allegedly improperly exhibited evidence into the transcript of record, and the only supplemental evidence she relied upon in her allegations of error is one page of a treatment note prepared by Dr. Gernon in April 2010. (Pl. Br. 17) (citing Doc. 12, Attach. 3, p.6 (denominated by Plaintiff as “Tr. 783”)).[2] In that treatment note Dr. Gernon diagnosed peripheral neuropathy, and the ALJ found peripheral neuropathy is one of Plaintiff's severe impairments. (R. 14). Plaintiff points out that Dr. Gernon recorded her reports of pain, numbness, and tingling in her feet--and the ALJ recognized Plaintiff's peripheral neuropathy symptoms (R. 19)--but the mere presence of symptoms does not require a finding of disability. Plaintiff also asserts that Dr. Gernon prescribed Lyrica to treat her symptoms at that visit. Id. Actually, Dr. Gernon stated that he thought it unwise to start Lyrica immediately “in light of the changes we are going to make, ” but that he planned to do so later. (Pl. Brief, Attach 3, p.6). Moreover, the ALJ recognized that Plaintiff is taking Lyrica, which was prescribed for her peripheral neuropathy symptoms. (R. 19). The ...


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