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Watson v. Berryhill

United States District Court, D. Kansas

November 17, 2017

DORIS M. WATSON, 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 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 final decision.

         I. Background

         Plaintiff 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.

         The 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. 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 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 considers the issues in the order addressed in Plaintiff's Brief, and finds no error.

         II. Failure Adequately to Consider and Explain the VA Disability Rating

          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.

         The 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.

         In her 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)).

         Plaintiff 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.

         The 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.

         A. The ...


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