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 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
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.
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.
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
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).
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.
Evidence Presented for the First Time to the Appeals
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
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
If you want us to consider whether you were disabled after
May 31, 2017, you need to apply again.
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
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
20 C.F.R. § 404.970(c) (2018) (emphases added).
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).
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.”
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).
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 ...