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 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.
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.
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
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.
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).
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).
Evidence Provided in the First Instance to the Appeals
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.
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
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
20 C.F.R. §§ 404.970(c), 416.1570(c) (2018)
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.
Misinterpretation of Factual Testimony and Objective Medical
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
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).
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
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).
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.
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.
(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. ...