Baxter v. Colvin
OPINION AND ORDER re 8 SOCIAL SECURITY ADMINISTRATIVE RECORD, by Magistrate Judge Michael J. Watanabe on 4/11/2016. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01183-MJW
LISA JANINE BAXTER,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
OPINION AND ORDER
MICHAEL J. WATANABE
United States Magistrate Judge
The government determined that Plaintiff is not disabled for purposes of the
Social Security Act. Plaintiff has asked this Court to review that decision. The Court
has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this
case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c).
Standard of Review
In Social Security appeals, the Court reviews the decision of the administrative
law judge (“ALJ”) to determine whether the factual findings are supported by substantial
evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue,
500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more
than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269,
1271–72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed
must, exercise common sense” and “cannot insist on technical perfection.” Keyes-
Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the
evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
At the second step of the Commissioner’s five-step sequence for making
determinations,1 the ALJ found that Plaintiff “has the following severe impairment:
bilateral asymmetric sensorineural hearing loss, left greater than right.” (AR 17.) More
plainly: she has lost all hearing in the left ear and most hearing in the right. Together
with Plaintiff’s non-severe limitations, the ALJ then determined that Plaintiff has the
following residual functional capacity (“RFC”), as is relevant here:
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work
[except . . . she] cannot use a telephone more than occasionally as part of
her office duties. The claimant can only work at a moderate noise level
environment, defined as meaning typical office level noise. She cannot
work at unprotected heights and can only occasionally drive as part of the
(AR 19.) At the fourth step of analysis, the ALJ found that Plaintiff “is capable of
performing past relevant work as a sales associate and assistant store manager” and
therefore that Plaintiff is not disabled. (AR 22.)
Plaintiff asserts three reversible errors: first, that the Commissioner’s Appeals
Council failed to consider relevant new evidence; second, that the ALJ handled opinion
evidence improperly; and third, that the ALJ failed to make necessary findings about the
hearing demands of Plaintiff’s past relevant work.
The Social Security Administration uses a five-step sequential process for reviewing
disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Each of Plaintiff’s arguments relies on the distinction between work environments
with “quiet” and “moderate” noise levels. The Commissioner relies on the Dictionary of
Occupational Titles for describing work environments. That document provides:
5. NOISE INTENSITY LEVEL
The noise intensity level to which the worker is exposed in the job
environment. This factor is expressed by one of five levels. . . .
isolation booth for hearing test; deep sea diving;
library; many private offices; funeral reception; golf
course; art museum
business office where type-writers are used;
department store; grocery store; light traffic; fast
food restaurant at off-hours
can manufacturing department; large earth4
moving equipment; heavy traffic
rock concert - front row; jack-hammer in operation;
rocket engine testing area during test
Selected Characteristics of Occupations Defined in the Revised Dictionary of
Occupational Titles, App. D. The vocational expert in this case testified that a person
limited to working in “quiet” environments would not be able to do Plaintiff’s past
relevant work. Thus, the ALJ’s resolution of this case relies entirely on the finding that
Plaintiff could work in a “moderate” environment.
Evidence Submitted to Appeals Council
Plaintiff submitted a questionnaire filled out by Plaintiff’s treating physician,
opining on Plaintiff’s functional limitations, to the Commissioner’s Appeals Council.
(Docket No. 12-1.) The Appeals Council declined to consider it, stating:
We also looked at the questionnaire completed by Dr. Leah Mitchell dated
July 17, 2014. The Administrative Law Judge decided your case through
May 27, 2014. This new information is about a later time. Therefore, it
does not affect the decision about whether you were disabled beginning
on or before May 27, 2014.
(AR 2.) Plaintiff argues that this is error; Defendant disagrees, and further argues that
the Court has no jurisdiction to consider the matter unless Plaintiff establishes “good
cause” for failing to submit the document to the ALJ earlier.
Defendant’s jurisdictional argument is contrary to Tenth Circuit precedent.
Wilson v. Apfel, 215 F.3d 1338 (table), 2000 WL 719457, at *2 n.2 (10th Cir. June 5,
2000) (“That standard is not applicable here, however, because the parties agree that
the evidence was first submitted to the Appeals Council.”); see also O’Dell v. Shalala,
44 F.3d 855, 859 (10th Cir. 1994) (“We join the Fourth, Eighth, Ninth, and Eleventh
Circuits, in holding that the new evidence becomes part of the administrative record to
be considered when evaluating the Secretary’s decision for substantial evidence.”);
Chambers v. Barnhart, 389 F.3d 1139, 114243 (10th Cir. 2004) (stating, without
mention of “good cause” requirement, “if the evidence qualifies but the Appeals Council
did not consider it, the case should be remanded for further proceedings”).
Defendant’s argument on the merits is also flawed. First, the Appeals Council’s
stated grounds are unsupportable. The evidence dates only six weeks after the ALJ’s
decision, and comes from a physician who had been treating Plaintiff for years. It defies
all logic to suggest that the opinion reflects only Plaintiff’s post-decision condition and
shines no light at all on Plaintiff’s condition from six weeks earlier—especially where, as
here, there is no indication in the record that Plaintiff’s condition was swiftly worsening.
Second, although Defendant argues that the evidence is not material, Defendant’s
argument requires the Court to draw inferences. (See Docket No. 13, p.10 n.6 (“Thus, it
can be inferred that Dr. Mitchell’s opinion is consistent with the ALJ’s decision.”).) This
Court may not weigh the evidence; the opposite inference can be drawn, too, and it is
therefore a matter for the ALJ to consider. Accordingly, the case must be remanded for
further proceedings, including the new evidence improperly ignored by the Appeals
Weighing Medical Opinions
Plaintiff objects to the ALJ’s handling of the state-agency physician’s opinion.
More specifically, Plaintiff argues that the ALJ improperly rejected certain portions of the
opinion without explanation, despite giving “great weight” to the opinion in general.
The state-agency physician opined:
Functional limitations due to hearing loss are in order. . . .
Communication, hearing, is limited to a moderate degree. Employment
around high levels of background noise – whether caused by wind, traffic,
several talkers having simultaneous conversations with others, etc. – is
expected to be challenging, as the claimant reports. Audiologic results
indicate that the claimant may experience difficulty accurately hearing
precise information (as in taking oral orders), particularly as background
noise becomes a factor. She should be able to communicate periodically
with supervisors without major compensation for her hearing loss; for
instance, conducting such conversations face-to-face in a quiet, nonchaotic, and well-lighted area should be sufficient. Based largely [on] her
complaints, it may be helpful if she is employed in a job that does not
require a great deal of interaction with the hearing public. . . . By way of
general summary, then, based on her hearing loss she should be able to
work in surroundings that are favorable to easy listening. Many factory
jobs would seem to be inappropriate because of background noise and
potential danger around moving machinery, while quiet types of jobs
would appear to be a reasonable fit unless highly technical conversation
must be heard with precision.
(AR 64.) Plaintiff argues that these findings and opinions are inconsistent with the ALJ’s
finding that Plaintiff can “work at a moderate noise level environment, defined as
meaning typical office level noise” (AR 19). The Court sees no inconsistency, and
therefore rejects this argument.
Demands of Past Relevant Work
Plaintiff finally argues that the ALJ’s step-four analysis is insufficient because the
ALJ failed to make findings as to the noise levels of Plaintiff’s past relevant work.
Defendant concedes the point, but argues that the ALJ made findings as to work like
Plaintiff’s past relevant work—which is all the ALJ was required to do, see Titles II & Xvi:
Past Relevant Work-the Particular Job or the Occupation As Generally Performed, SSR
82-61, 1982 WL 31387 (S.S.A. 1982). Defendant is correct, and indeed Plaintiff
abandons this argument in her reply brief—switching instead to an argument premised
on Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991), and the ALJ’s hypothetical
question to the vocational expert. Plaintiff’s back-up argument relies entirely on her
argument, supra, as to the state-agency physician’s opinion. Because the Court
rejected that argument already, it necessarily rejects this one, too.
For the reasons set forth above, the Commissioner’s decision is REMANDED for
further proceedings consistent with this Order.
Dated this 11th day of April, 2016.
BY THE COURT:
/s/ Michael J. Watanabe
MICHAEL J. WATANABE
United States Magistrate Judge
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