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Shana K. v. Berryhill

United States District Court, D. Kansas

January 16, 2019

SHANA K., [1] Plaintiff,
v.
NANCY A. BERRYHILL, 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 pursuant to 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) 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 argues that the ALJ erred in finding that Plaintiff can perform past relevant work as a reservation clerk, erred in relying on testimony of the vocational expert (hereinafter VE) which was inconsistent with the Dictionary of Occupational Titles (DOT), and erroneously discounted the treating source opinions of Dr. Belcher and Dr. Latinis in favor of the non-examining source opinion of Dr. Hughes who reviewed the record at the reconsideration level.

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of 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 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 process--determining at step four whether, considering 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, she 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 addresses each error alleged by Plaintiff in the order it would present when applying the sequential evaluation process. However, Plaintiff presented new evidence to the Appeals Council along with her request for review of the ALJ's decision. She argues that the Appeals Council erred in its consideration of that new evidence, and the court must first address that issue.

         II. Evidence Presented for the First Time to the Appeals Council

         Dr. Latinis prepared a “Physician's Residual Functional Capacity Form 9” on August 7, 2017, over two months after the ALJ's decision issued in this case, and Plaintiff presented it to the Appeals Council in support of her request for review of the ALJ's decision. (R. 9) (all caps omitted). The Appeals Council denied Plaintiff's request for review of the ALJ's decision and mailed a “Notice of Appeals Council Action” dated March 12, 2018. (R. 1) (all caps and bolding omitted). The Council noted that Plaintiff had submitted Dr. Latinis's opinion dated August 7, 2017, and explained its consideration of that opinion:

The Administrative Law Judge decided your case through May 31, 2017. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before May 31, 2017.
If you want us to consider whether you were disabled after May 31, 2017, you need to apply again.

(R. 2).

         The Commissioner recently promulgated a regulation changing the requirements for consideration of requests for review of an ALJ's decision. Final Rule: Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90, 987 (Dec. 16, 2016) (“compliance is not required until May 1, 2017”), codified at, 20 C.F.R. §§ 404.970, 416.1570 (2018) (effective Jan. 17, 2017). This is the regulation applied by the Council in deciding Plaintiff's request for review. (R. 1) (“we will review your case for any of the following reasons: … We receive additional evidence that you show is new, material, and relates to the period on or before the date of the hearing decision. You must also show there is a reasonable probability that the additional evidence would change the outcome of the decision. You must show good cause for why you missed informing us about or submitting it earlier.”).

         The regulation provides that the Appeals Council will review a case if, among other requirements, it “receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5) (2018). It also provides that

If you submit additional evidence that does not relate to the period on or before the date of the administrative law judge hearing decision as required in paragraph (a)(5) of this section, … the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to file a new application.

20 C.F.R. § 404.970(c) (2018) (emphases added).

         That is precisely what happened here. The Appeals Council did not accept Dr. Latinis's RFC form because it “does not relate to the period at issue.” (R. 2) (quoted above). Therefore, the Council did not make the doctor's form a part of the administrative record in this case, but merely included it among the Appeals Council's correspondence. (R. 1-11). This conclusion is confirmed by the fact that Plaintiff's counsel also included a representative brief with his request for review, and the Appeals Council issued an “Order of the Appeals Council” noting that it had received that additional evidence and made it a part of the record. (R. 6) (naming Exhibit 15B, “Request for review with representative brief by Roger Driskill, dated February 13, 2018 (6 pages).”) (all caps and bolding omitted). Exhibit 15B has in fact been included within the “B” section of the administrative record, but Dr. Latinis's opinion has not been included as an exhibit within the “F” section of the administrative record. (R. 210-15). Because Dr. Latinis's opinion was not accepted by the Appeals Council, it is not a part of the “transcript of the record” upon which the court may rely in “affirming, modifying, or reversing the decision of the Commissioner of Social Security.” 42 U.S.C. § 405(g) (sentence four).

         A. Arguments

         Plaintiff argues that the Appeals Council summarily rejected the opinion of Dr. Latinis because it did not relate to the period at issue, but that, if properly considered the opinion does relate to that period. (Pl. Br. 26). She cites Dr. Latinis's statement that the limitations presented in his opinion have been effective “since at least 2012” (R. 11), and argues that the opinion is a proper retrospective opinion relating back to within the period at issue. (Pl. Br. 26 & n.3) (citing Andersen v. Astrue, 2009 WL 886237, at *9 (10th Cir. 2009); Gutierrez v. Colvin, 67 F.Supp.3d 1198, 1203 (D. Colo. 2014); and Hoffman v. Apfel, 62 F.Supp.2d 1204, 1212 (D. Kan. 1999)). She argues that “[r]eversal is required where the Appeals Council fails to consider the evidence submitted.” Id. In the circumstances presented here, Plaintiff's argument constitutes a request pursuant to the sixth sentence of 42 U.S.C. § 405(g) that the court “order additional evidence to be taken before the Commissioner of Social Security.”

         The Commissioner understands Plaintiff to argue both that the Appeals Council erred in finding Dr. Latinis's opinion does not relate to the period at issue, and that the Council erred in failing to provide an in-depth analysis of Dr. Latinis's opinion. (Comm'r Br. 9). She responds that “Plaintiff is incorrect on both counts.” Id. She points out that the regulation requires the Appeals Council to review the ALJ's decision “if, in addition to meeting other requirements, the evidence relates to the period on or before the date of the hearing decision, and there is a reasonable probability that it would change the outcome of the decision.” Id. (citing 20 C.F.R. § 404.970(a)(5)). She notes that the Council found Dr. Latinis's opinion does not relate to the period at issue and does not affect the question of disability on or before the date of the ALJ's decision. Id. at 9-10. The Commissioner acknowledged that Dr. Latinis stated his limitations had been present since 2012, she summarized his treatment records since December 2011, and she suggested that his “unremarkable [treatment] findings” are inconsistent with the functional limitations opined. (Comm'r Br. 10).

         The Commissioner then argued:

While the medical source statement completed by Dr. Latinis appears to relate to the period on or before the May 31, 2017 ALJ decision, Plaintiff cannot satisfy the other requirements of 20 C.F.R. § 404.970(a)(5). In particular, Plaintiff has not shown that there is a reasonable probability that the additional evidence would change the outcome of the decision.

Id. (emphasis added). She implies that any error in the Appeals Council's failure to articulate that Plaintiff has not shown that there is a reasonable probability that Dr. Latinis's opinion would change the outcome, is harmless because it is Plaintiff's burden to demonstrate that probability-which she cannot do. Id. at 11. The Commissioner concludes by arguing that “the Appeals Council was not required to weigh this opinion or make factual findings” because “‘nothing in the statutes or regulations' requires the Appeals Council to provide express analysis of evidence submitted to it, including opinions from treating physicians.” Id. (quoting Vallejo v. Berryhill, 849 F.3d 951, 955- 56 (10th Cir. 2017)). She argues, “The only option for this ...


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