United States District Court, D. Kansas
PATRICIA A. FREEMAN, Plaintiff,
NANCY W. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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).
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.
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.
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).
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.
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”)). 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).