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Sims v. Berryhill

United States District Court, D. Kansas

September 28, 2017

KIMBERLY SIMS, 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) 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) consideration of this case, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the final decision.

         I. Background

         Plaintiff applied for DIB and SSI benefits, alleging disability beginning June 1, 2011. (R. 23, 224, 229). She exhausted proceedings before the Commissioner, and now seeks judicial review of the Appeals Council's denial of her request for review and of the ALJ's decision denying benefits. Plaintiff claims that “[t]he Appeals Council erred in failing to remand the case in order for the ALJ to weigh the opinion from Dr. Lear under the treating source standard.” (Pl. Br. 9).[2] She also claims error in the ALJ's evaluation of the credibility of her allegations of symptoms resulting from her impairments.

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The Act provides that “[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); 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, 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 residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(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 whether, in light of the RFC assessed, claimant can perform her past relevant work; and 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 final decision, but it first explains that it is without jurisdiction to review the Appeal's Council's determination to deny review of an ALJ's decision.

         II. The Appeals Council's Decision to Deny Review

         After the ALJ issued his decision in this case, Plaintiff requested review by the Appeals Council and submitted 166 pages of additional evidence including her representative's brief in which she argued that the ALJ erroneously discounted the Medical Source Statement - Mental (MSSM) co-signed by Dr. Lear and Ms. Schneider, APRN on September 23, 2014. (R. 359). Most of the additional evidence (161 pages) was made a part of the record by Order of the Appeals Council dated April 29, 2016. (R. 7-8). Five pages of the additional evidence submitted consisted of “medical records from Comcare of Sedgwick dated March 16, 2015, ” and were not made a part of the record because they were about a time after the ALJ's decision issued on February 27, 2015. (R. 2, 15-19). The Appeals Council considered the additional evidence which had been made a part of the record, determined that it “does not provide a basis for changing the Administrative Law Judge's decision” (R. 2), and denied Plaintiff's request for review. (R. 1). Therefore, in accordance with the Social Security regulations the ALJ's decision became the final decision of the Commissioner. (R. 1); see also 20 C.F.R. §§ 404.900(a)(5) (“When you have completed the steps of the administrative review process listed in paragraphs (a)(1) through (a)(4) of this section, we will have made our final decision.”), 416.1400(a)(5) (same). When the Appeals Council denies review, the ALJ's decision becomes the final decision of the Commissioner. Threet v. Barnhart, 353 F.3d 1185, 1187 (10th Cir. 2003); see also 20 C.F.R. §§ 404.981 (“the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court”); 416.1481 (same).

         In her Brief, Plaintiff argues that the ALJ rejected the opinion signed by Dr. Lear as a treating source opinion because the record did not contain evidence that Dr. Lear actually saw Plaintiff and he did not sign any of Nurse Schneider's treatment notes. (Pl. Br. 9) (citing R. 31). She argues that the ALJ weighed the opinion as the opinion of an “other medical source” and discounted it because Ms. Schneider is not an acceptable medical source and because the opinion was not supported by Ms. Schneider's treatment notes. Id. (citing R. 31). Plaintiff cites the additional evidence submitted by the Appeals Council for the proposition that “Dr. Lear later provided clarification in the form of a letter outlining his involvement in [Ms.] Sims'[s] treatment and upon what evidence he relied in forming his opinion with Nurse Schneider, and [Ms.] Sims submitted this letter to the Appeals Council.” Id. (citing R. 687). Plaintiff then argues, “This letter prompted evaluation of the opinion under the treating source standard instead of the standard for a nonacceptable medical source. The Appeals Council should have remanded the case for the ALJ to consider the opinion under the correct standard”--the treating physician standard. Id. She argues that because the Appeals Council did not remand for the ALJ to apply the treating physician standard, this court must remand “for the ALJ to apply the treating source standard.” Id. at 19. The Commissioner argues that the Appeals Council's notice denying review is not the final decision of the Commissioner, the ALJ's decision is, and this court is to consider all of the evidence, including that submitted to the Council in deciding whether substantial evidence in the record suports the ALJ's decision. (Comm'r Br. 9-10) (citing Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006). In her Reply Brief, Plaintiff argues that “it would be unfair to hold the ALJ accountable for evidence not available to him . . . [and that] the Appeals Council's failure to remand the case for the ALJ's reconsideration of Dr. Lear's opinion caused the ALJ's decision to be unsupported by substantial evidence.” (Reply 2). Therefore, she argues that the “Appeals Council's failure to remand this claim at the administrative level does warrant remand in this case.” Id.

         After receiving Plaintiff's brief and the additional evidence, the Council provided a “Notice of Appeals Council Action” to Plaintiff in which it 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 most of the additional evidence provided by Plaintiff (R. 5-6), and an “Order of Appeals Council” also listing most of the additional evidence provided by Plaintiff, and stating that it was making that evidence a part of the administrative record. (R. 7-8). 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 . . . [and] found that this information does not provide a basis for changing the Administrative Law Judge's decision.” Id. at 2.

         Plaintiff acknowledges that the “Appeals Council considered the new evidence making it part of the record for review in this court.” (Pl. Br. 11). But she argues that the “Council erred in finding the evidence did not change the outcome of the case because the additional evidence left the ALJ's decision no longer supported by substantial evidence.” Id. (citing Padilla v. Colvin, 525 F. App'x 710, 712 (10th Cir. 2013); Martinez v. Barnhart, 164 F. App'x 725, 732 (10th Cir. 2006); and Kesner v. Barnhart, 470 F.Supp.2d 1315, 1323-24 (D. Utah 2006)). She argues that “whether treating physician analysis is required when a treating physician's opinion is submitted to the Appeals Council as additional evidence is an issue that ‘does not appear to be settled in this circuit.'” (Pl. Br. 12) (quoting Stills v. Astrue, 476 F. App'x 159, 162 & n.1 (10th Cir. 2012) (comparing Harper v. Astrue, 428 F. App'x 823, 827 (10th Cir. 2011) and Robinson v. Astrue, 397 F. App'x 430, 432 (10th Cir. 2010))). And she argues that this court should follow the lead of the court in Harper. (Pl. Br. 12).

         However, less than two months after Plaintiff filed her Reply Brief in this case, the Tenth Circuit settled the issue whether treating physician analysis is required when a treating physician's opinion is submitted to the Appeals Council as additional evidence. Vallejo v. Berryhill, 849 F.3d 951, 955-56 (10th Cir. 2017) (issued February 28, 2017). In Vallejo the plaintiff submitted a treating physician opinion as new, material evidence to the Appeals Council, the Council admitted and considered it, but denied review. Id. 849 F.3d at 953. On judicial review of the Commissioner's final decision, the district court ruled “that the Appeals Council erred ‘in not properly articulating its assessment' of [the physician's] opinion in denying [the plaintiff's] request for review.” Id. 849 F.3d at 953. On appeal, the Tenth Circuit held that because the Appeals Council denied review and did not make a decision “it was not required to follow the same rules for considering opinion evidence as the ALJ followed.” Id. 849 F.3d at 955-56. The Vallejo court noted that it had considered the plaintiff's reliance on the Harper opinion, but declined to rely on that opinion because it was unpublished and non-precedential, it ...


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