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) 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
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). She also claims error in the
ALJ's evaluation of the credibility of her allegations of
symptoms resulting from her impairments.
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.
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, 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
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).
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.
The Appeals Council's Decision to Deny Review
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).
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.
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.
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).
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