United States District Court, D. Kansas
DORIS M. WATSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
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 Administrative
Law Judge's (ALJ) decision, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of
42 U.S.C. § 405(g) AFFIRMING the Commissioner's
applied for DIB, alleging disability beginning August 23,
2012. (R. 17, 178). Plaintiff exhausted proceedings before
the Commissioner, and now seeks judicial review of the final
decision denying benefits. Plaintiff argues that both the
Administrative Law Judge (ALJ) and the Appeals Council erred
when they failed to discuss the VA 100% disability rating
awarded to Plaintiff on March 20, 2014 due to PostTraumatic
Stress Disorder (PTSD). She also argues that the ALJ erred in
evaluating Plaintiff's ability to sustain work on a
regular and continuing basis.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). It
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 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; 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 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 considers the issues in the order addressed in
Plaintiff's Brief, and finds no error.
Failure Adequately to Consider and Explain the VA Disability
Plaintiff argues that Social Security Ruling (SSR) 06-3p
requires that a disability decision by another agency may not
be ignored by the Commissioner and must be considered. (Pl.
Br. 13) (recognizing that SSR 06-3p is rescinded for all
claims filed on or after March 17, 2017). She points out that
such a disability decision must be considered by an ALJ, and
he must explain why he did not find it persuasive.
Id. (quoting Grogan v. Barnhart, 399 F.3d
1257, 1262-63 (10th Cir. 2005)). She argues that neither the
ALJ nor the Appeals Council discussed the significance of the
VA's 100% disability rating here, and that failure
requires remand. She acknowledges that in Vallejo v.
Berryhill, 849 F.3d 951, 955-56 (10th Cir. 2017), the
Tenth Circuit decided that the Appeals Council is not
required to discuss new, material, and chronologically
relevant evidence when it denies review of an ALJ's
decision, but argues that Vallejo doesn't change
the result in this case because the ALJ was not free to
ignore the VA disability award “particularly since he
was already put on notice that the VA had granted [Ms.]
Watson a 100% disability rating.” (Pl. Br. 16-17).
Moreover, she argues that she is aware of no “authority
suggesting that the Appeals Council's receipt of new
evidence in the form of a VA disability evaluation excuses
Grogan's requirement that Commissioner [sic]
discuss the significance of such evidence.”
Id. at 17 (citing Davis v. Colvin, Civ. A,
No. 13-cv-02271-CMA, 2014 U.S. Dist. LEXIS 123217, at *12-13,
2014 WL 4375876, at *4-5 (D. Colo. Sept. 4, 2014); and
Harvey v. Astrue, No. CIV-10-393-SPS, 2012 U.S.
Dist. LEXIS 39224, at *14-16, 2012 WL 984299, at *5-6 (E.D.
Okla. March 22, 2012)). She argues that remand is necessary
for the ALJ to consider and discuss the VA disability rating
in the first instance.
Commissioner acknowledges that the decision does not contain
a specific discussion of the VA disability rating, but argues
that the ALJ stated he considered all of the evidence in the
entire record, and asks the court to take him at his word.
(Comm'r Br. 11-12) (citing Flaherty v. Astrue,
515 F.3d 1067, 1071 (10th Cir. 2007)). She suggests that any
error in the ALJ's failure to specifically discuss the VA
disability rating is harmless. She argues that the ALJ
elicited and listened to Plaintiff's testimony regarding
her VA disability awards and accepted PTSD as one of
Plaintiff's severe impairments, and that the VA
disability rating was not significantly probative and the
failure to discuss it specifically does not warrant remand
since it is based on different standards for determining
disability than those of the Act. Id. at 12-13. She
argues pursuant to SSR 06-3p that the VA disability rating in
this case need not be discussed because it does not have a
bearing on the determination of disability. Id. at
13-14. She distinguishes the holding of Grogan as
applicable only to a failure to consider a VA disability
rating in finding an impairment not severe at step two of the
sequential evaluation process, and argues that the VA
disability rating in this case does not speak to either the
issue of RFC or the issue of disability under the Act.
Id. at 14. The Commissioner also argues that the
Appeals Council was not required to discuss the VA disability
rating when denying Plaintiff's request for review of the
ALJ decision, particularly because the information in the
evidence presented to the Council was already before the ALJ.
Id. at 15.
Reply Brief, Plaintiff reiterates her arguments, asserting
that had the ALJ specifically weighed the VA disability
rating, he could have changed his decision because the VA
rating showed that Plaintiff's PTSD was much more severe
than the ALJ determined. (Reply 1-2). She argues that
Grogan has been expanded beyond the step two
determination. (Reply 2-3) (citing Baca v. Dep't of
Health & Human Servs. 5 F.3d 476, 480 (10th Cir.
1993); Winick v. Colvin, No. 16-6077, 2017 U.S. App.
LEXIS 83, at *3, 11-13, 674 F. App'x 816, 822 (10th Cir.
Jan. 4, 2017); Richter v. Chater, 900 F.Supp. 1531,
1534, 1539 (D. Kan. 1995); Hoog v. Colvin, No.
15-9123-SAC, 2016 U.S. Dist. LEXIS 119366 at *5, 6-8, 2016 WL
4593479 at *2-3 (D. Kan. Sept. 2, 2016); Radlin v.
Colvin, No. 14-1401-EFM, 2015 U.S. Dist. LEXIS 140430 at
*3, *7-8, 2015 WL 6031382 at *3 (D. Kan. Oct. 15, 2015); and
Wallick v. Astrue, Civ. A. No. 06-1346-MLB, 2007
U.S. Dist. LEXIS 89199 at *6, *16-18, 2007 WL 4239463 at *6
(D. Kan. Oct. 9, 2007)).
argues that the ALJ was not required merely to consider the
VA disability rating, but he was required to explain why the
rating was not adopted. She argues the fact the ALJ never
mentioned the VA disability rating “suggests it was
overlooked” (Reply 4), and that the Commissioner's
harmless error argument is without merit. Id., at 5.
court finds no reversible error, and explains first, why the
ALJ's consideration was, at worst harmless error, and why
the Appeals Council did not err.