United States District Court, D. Kansas
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) under sections 216(i) and 223 of the
Social Security Act. 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding no error in the
Commissioner's final decision, the court ORDERS that
judgment shall be entered AFFIRMING that decision.
applied for DIB, ultimately alleging disability beginning
July 23, 2010. (R. 15, 24, 34). 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) failed to adequately
evaluate the medical evidence, that the Appeals Council
failed to adequately evaluate the new and material evidence
provided to it and thereby erred in failing to remand for
further consideration by the ALJ, and that the ALJ further
erred in finding that Plaintiff's allegations of symptoms
were not credible.
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.
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); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). 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; 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 residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four
and step five of the sequential evaluation process.
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; 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 in the Commissioner's handling of
this case, and it begins its analysis with consideration of
the disposition by the Appeals Council.
The Appeals Council's Disposition
receiving the ALJ's decision in this case, Plaintiff
requested that the Appeals Council review the hearing
decision, submitted a brief to the Appeals Council providing
her allegations of error in the ALJ's decision, and
provided 88 pages of medical evidence for the Council's
consideration. (R. 9-11, 272-79, 390-477). After receiving
Plaintiff's brief and the additional evidence, the
Council provided a “Notice of Appeals Council
Action” to Plaintiff in which they explained that it
found no reason under the rules of the agency to review the
ALJ's decision, and denied Plaintiff's request for
review, thereby making the ALJ's decision the final
decision of the Commissioner. (R. 1). The Council included an
“AC [Appeals Council] Exhibits List” listing all
of the additional evidence provided by Plaintiff (R. 4), and
an “Order of Appeals Council” also listing all of
the additional evidence provided by Plaintiff, and stating
that it was making that evidence a part of the administrative
record. (R. 5). In its notice, the Appeals Council stated
that it had considered “the reasons you disagree with
the [hearing] decision and the additional evidence listed on
the enclosed Order of Appeals Council.” (R. 2). The
Council “concluded that the additional evidence does
not provide a basis for changing the Administrative Law
Judge's decision.” Id.
Plaintiff acknowledges, “[w]hen the Appeals Council
accepts additional evidence, that is an implicit
determination that it is qualifying new evidence, requiring
the Appeals Council to consider it, ” and a reviewing
court to include it in its review of the ALJ's decision.
(Pl. Br. 13) (quoting Krauser v. Astrue, 638 F.3d
1324, 1328 (10th Cir. 2011). To the extent that Plaintiff
claims the Council did not consider the new, material
evidence submitted to it, that claim is belied by the
Council's explanation that it had considered the
additional evidence. (R. 2). This court's general
practice “is to take a lower tribunal at its word when
it declares that it has considered a matter, ” and
Plaintiff provides no basis to depart from that general
practice. Hackett, 395 F.3d at 1173.
real complaint is that the Council did not properly
evaluate the new and material evidence, because it did not
remand Plaintiff's claim to the ALJ for further
proceedings. (Pl. Br. 13) (citing Threet v.
Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003)).
Plaintiff argues that the new, material evidence was so
“significantly probative” that the “Council
erred by not reviewing said evidence and remanding the claim
to the ALJ” for a new hearing and consideration of the
new evidence. Id. at 14. Again, the Appeals
Council's notice makes clear that it
considered--reviewed--the evidence, and Plaintiff does not
seriously argue otherwise. Rather, she disagrees with the
Council's disposition of her claim. She argues that
“it is obvious that the aforementioned evidence could
have and should have changed the outcome of the ALJ's
decision; thus, the Appeals Council erred in failing to
review and remand Plaintiff's disability claim.”
the court is without jurisdiction to review the alleged
errors of the Appeals Council in the circumstances of this
case. The court's jurisdiction to decide a suit against
the Social Security Administration is delimited by the Social
Security Act. Weinberger v. Salfi, 422 U.S. 749,
757-64 (1975). Salfi instructs that section 405(g)
of the Act is the exclusive basis for subject matter
jurisdiction over Plaintiff's complaint. Salfi,
422 U.S. at 757. Section 405(g) provides the court with
jurisdiction to review the “final decision” of
the Commissioner. Here, because the Appeals Council denied
review of the ALJ's decision, the ALJ's decision, not
the Appeals Council's decision is the “final
decision” of the Commissioner subject to judicial
review by the District Court. 20 C.F.R. § 404.981.
Therefore, the Council's decision to deny review is ...