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Morse v. Berryhill

United States District Court, D. Kansas

August 11, 2017

ROBERT LEE MORSE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. DISTRICT SENIOR JUDGE

         This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits. The matter has been fully briefed by the parties.

         I. General legal standards

         The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.

         The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).

         The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a “substantial gainful activity.” At step two, the agency will find non-disability unless the claimant shows that he or she has a “severe impairment, ” which is defined as any “impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).

         The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10thCir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

         Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).

         II. History of case

         On March 6, 2015, administrative law judge (ALJ) Michael D. Mance issued his decision (R. at 132-143). Plaintiff alleges that he has been disabled since September 1, 2012 (R. at 132). Plaintiff is insured for disability insurance benefits through March 31, 2015 (R. at 134). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date (R. at 134). At step two, the ALJ found that plaintiff has severe impairments (R. at 134). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 136). After determining plaintiff's RFC (R. at 137-138), the ALJ found at step four that plaintiff is unable to perform any past relevant work (R. at 141). At step five, the ALJ found that plaintiff could perform other jobs that exist in significant numbers in the national economy (R. at 142-143). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 143).

         III. Did the Appeals Council err by failing to consider medical opinion evidence submitted to them after the ALJ decision?

         In his decision, the ALJ found that plaintiff has the RFC to perform work at all exertional levels, but with the following nonexertional limitations: he should never climb ladders, ropes, and scaffolds. He should work in a temperature controlled environment. He should avoid concentrated exposure to unprotected heights and hazardous machinery. He is limited to the performance of unskilled work only, requiring no more than occasional contact with the public and coworkers. He cannot be required to perform any high production rate jobs, but low and medium production rate jobs are okay (R. at 138). With this RFC, the ALJ concluded that plaintiff could perform other work in the national economy, and was therefore not disabled.

         After the ALJ decision, plaintiff submitted to the Appeals Council letters from Dr. Davis, a licensed clinical psychologist, Dr. Pashek, a speech-language pathologist and cognitive rehabilitation specialist, and Dr. Falola, a physician (R. at 9-13). The Appeals Council reviewed these documents and other medical records submitted to them and concluded that this new information was about a later time, and did not affect the decision about whether plaintiff was disabled on or before March 6, 2015, the date of the ALJ decision (R. at 2).

         The basic principle, derived from the relevant regulations, is well-established: the Appeals Council must consider additional evidence offered on administrative review-after which it becomes part of the court's record on judicial review-if it is (1) new, (2) material, and (3) related to the period on or before the date of the ALJ's decision. Krauser v. Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011). Where the Appeals Council rejects new evidence as non-qualifying, and ...


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