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Rousselo v. Berryhill

United States District Court, D. Kansas

September 22, 2017

LISA MARIE ROUSSELO, Plaintiff,
v.
NANCY A. 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) 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.

         I. Background

         Plaintiff 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.

         The 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. 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); 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. 1989).

         The 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. 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; 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 in the Commissioner's handling of this case, and it begins its analysis with consideration of the disposition by the Appeals Council.

         II. The Appeals Council's Disposition

         After 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.

         As 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.

         Plaintiff's 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.” Id.

         But, 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 ...


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