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David H. v. Berryhill

United States District Court, D. Kansas

March 1, 2019

RONALD DAVID H., [1] JR., [2] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         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 erroneously “relied on misinterpretation of factual testimony and the documented objective medical evidence, including the opinion of Plaintiff's treating physician, Dr. Bigham” (Pl. Br. 38); failed to account for limitations in concentration, persistence, or pace, and for limitations in the ability to interact with or accept criticism from supervisors in the residual functional capacity (RFC) she assessed, id. at 44-47; and failed to sustain the Commissioner's burden at step five of the sequential evaluation process. Id. at 47-49.

         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 she 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 he has a severe impairment(s), and whether the severity of his 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 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 his past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, he 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 will consider the issues in the order presented in Plaintiff's Brief. However, there is a preliminary matter which the court will address first. In his Brief, Plaintiff cited to and relied on evidence regarding arthroscopies on his left knee and on his right shoulder performed after the ALJ's decision and which evidence was provided to the Appeals Council in the first instance. (Pl. Br. 38-39).

         II. Evidence Provided in the First Instance to the Appeals Council

         The ALJ's decision in this case issued October 13, 2016. (R. 28). Plaintiff presented medical records from Atchison Hospital to the Appeals Council in support of his request for review. (R. 48-156). The Council noted that Plaintiff had submitted, and explained its consideration of, this evidence:

You submitted medical records from Atchison Hospital dated January 1, 2017 through August 20, 2017 (109 pages). The Administrative Law Judge decided your case through October 13, 2016. 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 October 13, 2016.
If you want us to consider whether you were disabled after October 13, 2016, 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. 1-2) (“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); 416.1570(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), 416.1570(c) (2018) (emphases added).

         That is precisely what happened here. The Appeals Council did not accept the evidence from Atchison Hospital because it “does not relate to the period at issue.” (R.2) (quoted above). Therefore, the Council did not make those records a part of the administrative record in this case, but merely included them among the Appeals Council's correspondence. (R. 48-156). 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 B16B, “Request for Review of Hearing Decision/Order received November 23, 2016 (1 page), ” and Exhibit B17E “Contentions from Roger M. Driskill, Esq. dated November 21, 2016 (3 pages).” Exhibits B16B and B17E have in fact been included within the “B” and “E” sections of the administrative record, but the hospital records have not been included as an exhibit within the “F” section of the administrative record. (R. 339, 440-41). Because the hospital records were not accepted by the Appeals Council, they are 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). The hospital records are not a part of the administrative record and may not be considered in this court's judicial review. Moreover, Plaintiff has not sought remand pursuant to sentence six of 42 U.S.C. § 405(g) for consideration of those records.

         III. Misinterpretation of Factual Testimony and Objective Medical Evidence

         Plaintiff claims the ALJ misinterpreted his factual testimony at the hearing, the record medical evidence, and the opinion of his treating physician, Dr. Bigham, and consequently assessed an erroneous RFC which is not supported by the record evidence. (Pl. Br. 38-44). The Commissioner argues that the ALJ reasonably assessed an RFC based on the record as a whole. (Comm'r Br. 5). She argues that the court should not consider the new evidence regarding Plaintiff's left knee and right shoulder arthroscopies first presented to the Appeals Council, id. at 6-7, and addresses, respectively, the ALJ's consideration of the evidence regarding Plaintiff's left knee, right shoulder, carpal tunnel syndrome, diabetes mellitus, and spine impairments, and of Dr. Bigham's opinion, and explains how, in her view, the ALJ's understanding is reasonable and the record evidence supports that understanding. Id. at 6-14.

         In his Reply Brief, Plaintiff acknowledges that the Commissioner “disputes the relevance of evidence submitted after the ALJ issued his decision, ” but argues that nonetheless the evidence submitted before the ALJ's decision demonstrates that Plaintiff is disabled. (Reply 1). He reiterates the arguments from his Brief, id. at 1-7, and argues additionally that the ALJ did not correlate the functional limitations assessed with Plaintiff's knee impairment, id. at 2, “that, because the ALJ was under the impression Plaintiff was lying about his limitations, the ALJ did not find Plaintiff disabled, ” id. at 3-4, that the ALJ's “overall mindset” was impacted by his “erroneous conclusions that Plaintiff was not compliant with treatment recommendations, ” id. at 4, that Dr. Woodrow “did not make only ‘minimal' findings” regarding Plaintiff's back impairment although she did not recommend surgery. (Reply 5). He continues, asserting that although the Commissioner argues Dr. Bigham's opinion is inconsistent with Dr. Wallace's opinion, the ALJ accorded Dr. Wallace's opinion only some weight, and in any case, “the ALJ should have at least re-contacted Dr. Bigham.” (Comm'r Br. 7).

         Plaintiff's argument that the ALJ “misinterpreted” the “factual testimony and the documented objective evidence” (Pl. Br. 38) simply reflects Plaintiff's view of the evidence and asks the court to reweigh the evidence and substitute its judgment for that of the ALJ. For example, Plaintiff recognizes the ALJ's reliance on evidence of mild degeneration of, and no hospitalization for treatment of, the left knee, and argues, “While Plaintiff was not admitted, he was seen and treated in the ER for knee pain.” (Pl. Pr. 38). He then cites other evidence (including the knee arthroscopy ten months after the ALJ's decision) which in his view supports a finding of disability and argues that this evidence is consistent with Plaintiff's testimony and with Dr. Bigham's opinions. Id. at 38-39. However, the ALJ found Plaintiff's allegations of symptoms were not consistent with the record evidence and explained those inconsistencies in her decision. She also explained her reasons to discount Dr. Bigham's opinions. The court finds no reversible error in these findings.

         The court's review begins with the final decision of the Commissioner in all Social Security cases-here the ALJ's decision. The questions are whether she followed the correct legal standard, and whether she has relied upon “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401; see also, Wall, 561 F.3d at 1052; Gossett, 862 F.2d at 804. Plaintiff must demonstrate the error in the ALJ's rationale or finding; the mere fact that there is evidence which might support a contrary finding will not establish error in the ALJ's determination. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. [The court] may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm=n, 383 U.S. 607, 620 (1966).

         The court has reviewed the decision in this case, and finds it to be an unusually thorough decision, with exceptional citation to the record supporting the ALJ's decision. Rather than addressing the substance of the ALJ's decision, Plaintiff has chosen to present his (in several cases, unsupported) view of the evidence, apparently attempting to demonstrate the ALJ's “misinterpretation” of the evidence. He argues that although his shoulder “surgery took place after the ALJ issued her decision, Plaintiff testified he had been scheduled for shoulder surgery but it was delayed due to another medical condition and this was also documented in treatment records from 2015 - more than a year prior to the hearing.” (Pl. Br. 39) (citing R. 173, 1410). To be sure, the record reflects Plaintiff's hearing testimony that “I was scheduled to have the shoulder surgery done and it had to be postponed because of my thyroid.” (R. 173). The other record cited in Plaintiff's argument is a progress note from Dr. Bigham dated December 18, 2015. (R. 1410). It reveals that Plaintiff reported at his “Checkup for disability” that “[h]e has spinal stenosis, low back pain with radiculopathy. He has got a torn right shoulder, right rotator cuff that causes him difficulty with reaching. … He is having surgery on his right shoulder.” (R. 1410). Dr. Bigham assessed Plaintiff with “Right rotator cuff tear or dysfunction.” Id. (emphasis added). However, Plaintiff does not cite, and the court's review does not reveal any evidence in the record demonstrating that shoulder surgery was recommended, scheduled, or postponed. In fact, on October 14, 2015, just three months before telling Dr. Bigham he was having surgery on his right shoulder, Plaintiff presented at the ER complaining of right shoulder pain after moving furniture and boxes for two days. (R. 1716). Shoulder x-rays were taken which revealed, “No evident acute abnormality. Mild degenerative changes in the AC joint.” Id. at 1764 (emphases added). The doctor's impression at the ER visit was, “Right shoulder strain.” Id. at 1719.

         Moreover, the ALJ discussed both visits:

The October 14, 2015 exam noted the claimant had been moving furniture for two days and developed right shoulder pain (Ex. B26F/49 [(R. 1716)]). His physical exam was normal except for right shoulder tenderness. The claimant was oriented, alert and had a normal mood and affect (Ex. B26F/51-52 [(R. 1718-19)]). X-rays of the right shoulder revealed mild degenerative changes in the acromioclavicular joint (Ex. B26F/97 [(R. 1764)]). … A December 18, 2015 exam noted the claimant had spinal stenosis, low back pain with radiculopathy and a right rotator cuff tear (Ex. B21F/l [(R. 1410)]).

(R. 19). Later, she discussed Plaintiff's allegation of a right rotator cuff tear:

The claimant indicated he has a right rotator cuff tear. November 2014 x-rays of the right shoulder were normal (Ex. B13F/24 [(R. 809)]). The claimant did have tenderness and decreased range of motion after he had been moving furniture for two days in October 2015 (Ex. B26F/51-52 [(R. 1718-19)]). October 2015 x-rays noted there was mild degeneration in the acromioclavicular joint (Ex. B26F/97 [(R. 1764)]). The December 2015 exam noted the claimant had decreased right abduction but was otherwise unremarkable (Ex. B28F/32 [(R. 1801)]). In December 2015, Bryon Bigham, M.D., [noted?] that, in addition to the diagnoses of spinal stenosis and low back pain with radiculopathy, the claimant carried the diagnosis of right oted that [sic] There are multiple physical examination[s] in the evidence of record that do not indicate the claimant had any objective medical findings regarding the right shoulder (Ex. B2F/11, B5F/21, 35, 46, 53, B6F/8, B15F/11, 67, 86, 141, 309, 407, B17F/18, B24F/26-67, B26F/9-10, 20, 56-57, B28F/5-6, 24 and B33F/7, 15, 34 and 36-37)[; (R. 458, 683, 697, 708, 715, 730, 857, 913, 932, 987, 1155, 1253, 1382, 1632, 1676, 1687, 1723-24, 1774-75, 1793, 2113, 2121, 2140, 2142-43)]. This evidence does not support the degree of functional limitation alleged by the claimant regarding his right shoulder.

(R. 21) (underline added). Although the decision contains a typographical error when discussing Dr. Bigham's December 18, 2015 visit, it is apparent when viewing that treatment note, and in context of the ALJ's discussion of Plaintiff's “right rotator cuff tear, ” that in addition to the diagnoses of spinal stenosis and low back pain, Dr. ...

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