Sheriff v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER, by Magistrate Judge Craig B. Shaffer on 2/10/17. IT IS ORDERED that the Commissioners final decision is AFFIRMED and this civil action is DISMISSED, with each party to bear her own fees and costs. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Craig B. Shaffer
Civil Action No. 1:16-cv-00626-CBS
LEEANN M. SHERIFF,
Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

MEMORANDUM OPINION AND ORDER

Magistrate Judge Craig B. Shaffer
This action comes before the court pursuant to Titles II and XVI of the Social Security
Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social
Security’s final decision denying Leeann M. Sheriff’s (“Plaintiff”) application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Order of
Reference dated July 28, 2016, this civil action was referred to the Magistrate Judge “for all
purposes” pursuant to D.C.Colo.LCivR 72.2 and Title 28 U.S.C. § 636(c). See Doc. 20. The
court has carefully considered the Complaint (filed March 16, 2016) (Doc. 1), Plaintiff’s
Opening Brief (filed June 23, 2016) (Doc. 15), Defendant’s Response Brief (filed July 13, 2016)
(Doc. 16), Plaintiff’s Reply Brief (filed July 27, 2016) (Doc. 19), the entire case file, the
administrative record, and applicable case law. For the following reasons, the court affirms the
Commissioner’s decision.

1 

BACKGROUND
In June 2013, Plaintiff filed an application for disability benefits and supplemental
security income, alleging a disability onset date of February 23, 2012. (See Social Security
Administrative Record (hereinafter “AR”) at 32, 194). Plaintiff alleged that her ability to work
was limited by post-traumatic stress disorder, obsessive compulsive disorder, anxiety,
depression, closed head injury, migraines, difficulty reading, difficulty understanding basic
concepts, dyslexia, asthma, and fetal alcohol effects. See Id. at 263. Plaintiff was born on May
15, 1973, and was 38 years old on the date of her alleged disability onset. Id. at 41, 259. She has
a high school diploma and completed two years of college coursework. Id. at 41, 264. She has
worked in a variety of jobs including as a bus driver, a pharmacy technician, and a certified
nurse’s assistant. Id. at 284-85. After her initial application was denied, Plaintiff requested a
hearing, which was held on July 29, 2014, before an Administrative Law Judge (“ALJ”). See Id.
at 48-73, 103.
Plaintiff was represented by counsel at the hearing and testified that she suffered from
seizures and tics, but she stated that her grand mal seizures were being controlled with
medication. Id. at 54-57. She also testified that due to her medication and twitching episodes,
she was always tired and overwhelmed, which caused her to stay at home. Id. at 65. Plaintiff
stated that she also had difficulty concentrating and would often “zone out,” and that she had
trouble comprehending and remembering information, reading, writing, and following
instructions. Id. at 58-60. She further testified that she suffered from migraine headaches and
ringing in her ears. Id. at 58. Plaintiff did state that she was able to cook, clean, and do laundry.
Id. at 65.

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A vocational expert (“VE”) also testified at the hearing. Id. at 70-72. The VE testified
that Plaintiff’s prior work experience was classified as “semi-skilled” work that was performed
at a “light” exertional level as defined by the Dictionary of Occupational Titles exertional
guidelines. Id. at 70. The ALJ asked the VE to assume hypothetically that a younger individual
— with the same education and past work experience as Plaintiff — had the following
limitations: (1) could perform a limited range of medium work activity; (2) subject to seizure
precautions, including no operating of motor vehicles, being around dangerous machinery, or
working at heights; (3) capable of adequate work interactions with supervisors, the public, or
coworkers on a frequent basis; and (4) limited to routine, repetitive type work of an SVP 1 or 2
complexity . Id. at 70-71.
Based on these restrictions, the VE identified three jobs that someone with those
limitations could perform and testified about the number of each position in the regional and
national economy: (1) dining room attendant (391,290 National); (2) industrial cleaner
(2,068,460 National); and (3) office helper (83,250 National). Id. at 71-72. The ALJ then posed
a second hypothetical in which he asked the VE to assume that the individual’s concentration
and persistence would be frequently interrupted, meaning that she would be off task more than
20 percent of a workday. Id. at 72. The VE testified that, under these conditions, all of the
previously identified jobs would be eliminated. Id.
On September 3, 2014, the ALJ issued his decision denying benefits. Id. at 29-47. The
ALJ’s opinion followed the five-step process outlined in the Social Security regulations.1 At step

1
The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment; (3) had a
condition which met or equaled the severity of a listed impairment; (4) could return to past relevant work;
and, if not (5) could perform other work in the national economy. See 20 C.F.R. § 404.1520(a)(4),
416.920(a)(4); 20 C.F.R. §§ 404.1520 and 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988). After step three, the ALJ is required to assess the claimant’s functional residual capacity. 20 C.F.R.
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one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since
February 23, 2012. Id. at 35. At step two, the ALJ found that Plaintiff suffered from the
following severe impairments: seizure disorder versus tick disorder; history of ovarian and
uterine cancer, status post-resection, in current remission; history of pulmonary embolism;
obesity; and anxiety disorder with post-traumatic stress syndrome. Id. At step three, the ALJ
found that Plaintiff did not have an impairment that met or medically equaled a listed
impairment. Id. at 36-37.
The ALJ then assessed the following residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c). Specifically, she can lift and carry 50 pounds
occasionally and 25 pounds frequently, and sit for 6 hours and
stand and/or walk for 6 hours in an 8-hour day. The claimant has
seizure precautions in that she cannot operate a motor vehicle as
part of her work duties, and she cannot work around dangerous
hazards or unprotected heights. The claimant has adequate social
interactions and can frequently interact with others at the
workplace. She maintains the concentration, persistence and pace
to perform routine, repetitive work activities in jobs with an SVP
of 1 or 2.
Id. at 37. In fashioning Plaintiff’s RFC, the ALJ discussed much of the medical evidence in
Plaintiff’s medical records. The ALJ noted many of Plaintiff’s medical records were inconsistent
with her claims regarding the disabling nature of her impairments. Id. at 38-41. In addition, the
ALJ credited the opinion of Dr. Frederick Leidal, a consultative psychological examiner, who
examined Plaintiff and provided opinions regarding Plaintiff’s limitations. Id. at 40. Dr. Leidal
concluded that Plaintiff had an average ability to understand, remember, and carry out simple
instructions. Id. The ALJ accorded little weight to the other evaluations in the record because

§ 404.1520(e). The claimant has the burden of proof in steps one through four. The Social Security
Administration bears the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
4 

they were not supported by the medical evidence and they appeared to be based more on the
Plaintiff’s subjective complaints. Id. at 41. The ALJ also found Plaintiff’s statements regarding
the intensity, persistence, and limiting effects of her symptoms “not credible” to the extent that
they were inconsistent with the RFC. Id. at 38.
At step four, based on the RFC set forth above, the ALJ found that Plaintiff could not
perform any past relevant work. Id. at 41. At step five, the ALJ found: “[c]onsidering the
claimant’s age, education, work experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that the claimant can perform.” Id. at 42.
Specifically, the ALJ found that Plaintiff could work as a dining room attendant, an industrial
cleaner, or an office helper. Id. Because there was a significant number of jobs that Plaintiff
could perform, the ALJ found that Plaintiff did not meet the definition of “disabled” for purposes
of the Social Security Act. Id. Accordingly, Plaintiff’s application for disability benefits was
denied.
Following the ALJ’s decision, Plaintiff requested review and submitted additional
evidence. Id. at 28, 11-23. On January 16, 2016, the Appeals Council concluded that the new
evidence did not affect the ALJ’s decision and denied Plaintiff’s request for review. Id. at 1-7.
The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R.
§ 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff
filed this action on January 28, 2014. The court has jurisdiction to review the final decision of
the Commissioner. 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the decision adheres to applicable legal standards and is supported by substantial

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evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation
omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse
an ALJ simply because it may have reached a different result based on the record; the question
instead is whether there is substantial evidence showing that the ALJ was justified in his
decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is
more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)
(internal citation omitted). Moreover, “[e]vidence is not substantial if it is overwhelmed by other
evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371,
1374 (10th Cir. 1992) (internal citation omitted). The court will not “reweigh the evidence or
retry the case,” but must “meticulously examine the record as a whole, including anything that
may undercut or detract from the ALJ’s findings in order to determine if the substantiality test
has been met.” Flaherty, 515 F.3d at 1070 (internal citation omitted). Nevertheless, “if the ALJ
failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial
evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (internal citation
omitted).
ANALYSIS
On appeal, Plaintiff argues that the ALJ erred in the following ways: (1) the ALJ erred in
his consideration of the medical evidence; and (2) the conclusion that Plaintiff is capable of
performing other jobs in significant numbers is not supported by substantial evidence. In
addition, Plaintiff contends that the case warrants remand for consideration of the new and
material evidence that was submitted to the Appeals Council. These arguments are not
persuasive.

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A.

ALJ’s Consideration of Medical Evidence
Plaintiff argues that the ALJ erred in his assessment of the medical evidence. Doc. 15 at

9-14. Specifically, Plaintiff contends that the ALJ’s evaluation of the medical source opinions is
not supported by substantial evidence. Id. The court does not agree.
Under 20 C.F.R. § 404.1527, “[t]reating source medical opinions are . . . entitled to
deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527.”
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting SSR 96-2p). The Tenth
Circuit has set forth those factors as
(1) the length of the treatment relationship and the frequency of the
examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the
physician’s opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5)
whether or not the physician is a specialist in the area upon which
an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Id. at 1301 (internal quotation marks omitted). A treating source is a medical professional
capable of providing a detailed and longitudinal picture of a claimant’s medical impairments. 20
C.F.R. § 404.1527(c)(2). It is a relationship that requires both duration and frequency. Doyal v.
Barnhart, 331 F.3d 758, 763 (10th Cir. 2003); see also Barker v. Shalala, 40 F.3d 789, 794 (6th
Cir. 1994) (“The treating physician doctrine is based on the assumption that a medical
professional who has dealt with a claimant and his maladies over a long period of time will have
a deeper insight into the medical condition of the claimant than will a person who has examined
a claimant but once, or who has only seen the claimant’s medical records.”).

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Where, as here, none of the medical opinions at issue constitute “treating sources,”2 the
court, nevertheless, evaluates them by applying the same factors as are generally used to assess
treating source opinions. Social Security Ruling 06-03p, 2006 WL 2329939 at *4 (SSA Aug. 9,
2006); 20 C.F.R. §§ 404.1527(c)(2)-(6) & 416.927(c)(2)-(6).
With regard to Dr. Crockett’s opinion — finding a greater level of functional impairment
than found in the ALJ’s decision — the ALJ noted that this determination was inconsistent with
the other evidence of record. See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent an
opinion is with the record as a whole, the more weight we will give to that opinion.”).
Specifically, the ALJ reasonably observed that Dr. Crockett’s assessment was based more on
Plaintiff’s subjective complaints than objective findings. See White v. Barnhart, 287 F.3d 903,
907-08 (10th Cir. 2001) (affirming the ALJ’s decision to discount a medical opinion that was
based primarily on the claimant’s subjective assertions rather than objective medical evidence).
Plaintiff contends that the ALJ erred in his analysis of Dr. Crockett’s opinion by relying
on her activities of daily living, and she argues that her daily activities were more nuanced than
the ALJ’s opinion suggested. Plaintiff is correct that “minimal” daily activities, alone, do not
establish that a claimant is capable of engaging in gainful employment. Thompson, 987 F.2d at
1489; see also Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987) (daily activities); Byron v.
Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (jogging and intermittent work as a janitor);
Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983) (working in the yard, performing a few
household tasks, working on cars, taking occasional trips with brother in camper).

2
Drs. Crockett and Leidal provided one-time consultative examinations. In addition, Dorothy
Renner is a professional counselor, not a doctor. 20 C.F.R. § 404.1513(a) (defining — for the purposes of
this case — “acceptable medical sources” as licensed physicians and licensed or certified psychologists).
Finally, there is no evidence that Dr. Nebel had a treating relationship with Plaintiff. Rather, he appears to
have simply co-signed Ms. Renner’s assessment.
8 

However, even assuming, for the sake of argument, that the ALJ erred in his
consideration of Plaintiff’s daily activities3, remand would not be warranted. Plaintiff’s daily
activities were but one of the reasons supporting the ALJ’s conclusions. The ALJ also considered
the fact that Dr. Crockett’s assessment was not entirely consistent with her own objective
findings. AR at 40. See White, 287 F.3d at 207-08 (ALJ noted the discrepancy between the
physician’s restrictive functional assessment and her contemporaneous examination when
rejecting the opinion). For example, Dr. Crockett noted that Plaintiff’s attention and calculation
were average and that she performed math questions correctly and spelled a simple word
backwards without error. AR at 323. In addition, Plaintiff’s abstract ability was average, she was
able to follow two steps of a simple three-step direction, she wrote a sentence correctly, and she
copied a simple design accurately. Id.
The ALJ also relied on the observations of the CDI fraud investigators in reaching the
conclusion that Plaintiff had a greater capacity for work than suggested by Dr. Crocket. Id. at 40.
Although Plaintiff claimed to have anxiety about going out into public alone, the investigators
reported that Plaintiff walked around a public street at a normal pace and that she made good eye
contact and was friendly when they spoke to her. Id. at 330. Plaintiff seems to contend that this
evidence was unreliable because neither of the investigators had any apparent medical training;
however, she cites no law for this requirement. Doc. 15 at 13. Indeed, the regulations specifically
contemplate the use of nonmedical evidence in evaluating claims. 20 C.F.R. § 404.1513(d).

3
In asserting that her activities of daily living are more nuanced that the ALJ portrayed them,
Plaintiff cites her “Function Report.” AR at 276-83. Interestingly, the court observes that these nuances
are not contained in Dr. Crockett’s report. See Id. at 322. When Plaintiff communicated difficulties in
various activities (grocery shopping), Dr. Crockett made specific notations in that regard. Dr. Crockett did
not, however, make any notations regarding Plaintiff’s alleged limitations in her other activities of daily
living (housework, computer time, mental games, laundry, cooking, and finances).
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Plaintiff also contends that the ALJ inappropriately credited the CDI investigators over
the doctors. Doc. 15 at 13-14. This mischaracterizes the ALJ’s discussion. The ALJ did not give
credence to the CDI investigator’s findings; indeed, these investigators did not make any
findings, only observations of Plaintiff’s behavior. AR at 326-33. Rather, the ALJ evaluated the
medical opinions in light of the seemingly contradictory observations of the investigators, as he
was entitled to do. See 20 C.F.R. § 404.1513(d). Thus, the ALJ did not err in considering this
information when determining whether Dr. Crockett’s evaluation was consistent with the record
as a whole.
Plaintiff also takes issue with the ALJ’s assessment of Dr. Leidal’s opinions. Doc. 15 at
13. However, Plaintiff’s “argument” amounts to little more than a conclusory assertion of error.
Plaintiff first notes that Dr. Leidal stated that Plaintiff’s “ability to withstand the mental stress
and pressures associated with day-to-day work activity appears below average, comprised by her
cognitive complaints.” Doc. 15 at 10. Plaintiff next quotes portions from two Social Security
Rulings, id. at 13, but then makes no attempt to apply these rulings to the facts of her case. As
Defendant correctly points out, Plaintiff does not explain how being “below average” in
managing stress is disabling. In fact, the ALJ observed that Dr. Leidal had offered no insights in
that regard either. Because Plaintiff’s argument is cursory and undeveloped, the court declines to
consider it further. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will
consider and discuss only those of [plaintiff’s] contentions that have been adequately briefed for
our review.”); Wall v. Astrue, 561 F.3d 1048, 1065 (10th Cir. 1999) (declining to address
arguments where claimant “failed to support [her] contention with any developed
argumentation”).4

4
Similarly, Plaintiff summarizes a report that was apparently authored by Dorothy Renner, LPC,
and co-signed by Dr. Nebel. Plaintiff does not, however, address the ALJ’s specific analysis regarding Dr.
10 

Finally, Plaintiff argues that the ALJ erred in his assessment of Plaintiff’s CT scans. See
Doc. 15 at 11-12. In his opinion, the ALJ observed that Plaintiff’s CT scans were all negative.
AR at 39. The ALJ went on to state that these negative results weighed against Plaintiff’s claims
of traumatic brain injury and diminished the persuasiveness of her alleged increase in mental
symptoms and cognitive limitations. Id. The ALJ did not find these results to be dispositive, but
rather, considered them in the context of the record as a whole. Plaintiff’s arguments regarding
the evidentiary value of a negative CT scan, Doc. 15 at 11-12, appears to be little more than a
thinly veiled request for this court to reweigh the evidence, which it cannot do. Oldham, 509
F.3d at 1257. This court may review only the sufficiency of the evidence; and in this case, there
was enough evidence to support the ALJ’s assessments of the medical opinions. Even if “the
evidence may have also supported contrary findings, ‘[the court] may not displace the agency’s
choice between two fairly conflicting views, even though the court would justifiably have made
a difference choice had the matter been before it de novo.’” Id. (quoting Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007)).
B.

Sufficient Jobs in the National Economy
At step five, the ALJ must consider vocational factors (the claimant’s age, education, and

past work experience) and determine whether the claimant is capable of performing other jobs
existing in significant numbers in the national economy. Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993). Here, the ALJ found that “there are jobs that exist in significant numbers
in the national economy that the claimant can perform.” AR at 42. Specifically, the ALJ found
that Plaintiff could work as a dining room attendant, industrial cleaner, and office helper. Id.

Nebel. Rather, she simply makes passing reference to Dr. Nebel in her other assertions of error. It is
unclear whether Plaintiff even takes issue with the ALJ’s reasoning regarding Dr. Nebel. But to the extent
that she does, the court does not consider her arguments to be properly developed and it will not address
them. See Keyes-Zachary, 695 F.3d at 1161; Wall, 561 F.3d at 1065.
11 

At the hearing, the ALJ heard testimony from the VE. The ALJ posed hypotheticals to
the VE that involved all of the physical and mental aspects of the RFC ultimately adopted by the
ALJ. Id. at 70-71. The VE testified that someone with those restrictions could work as a dining
room attendant, industrial cleaner, and office helper. Id. at 71.
On appeal, Plaintiff notes that the VE also testified that those three jobs would be
eliminated if the worker’s concentration, persistence, and pace would be off-task for more than
20 percent of the workday. Doc. 15 at 19-20. She further contends that the record evidence
supports a finding that she would be off-task more than 20 percent of a work day and, therefore,
that the ALJ had the burden to prove that other qualifying jobs existed in significant numbers. Id.
The court is not persuaded.
As discussed above, the court — in its discussion affirming the ALJ’s assessment of the
medical opinions — has concluded that the RFC was based on and supported by substantial
evidence. Because the ALJ’s first hypothetical question was based on the RFC, and because the
RFC was supported by the record, the court concludes that the ALJ neither erred in posing its
hypothetical nor in relying on the VE’s testimony regarding the existence of jobs that Plaintiff
could perform. Ellison, 929 F.2d at 537 (VE’s testimony that jobs existed that claimant could
perform constituted substantial evidence supporting ALJ’s conclusion that claimant was not
disabled). Therefore, the court concludes that the ALJ’s step five finding — that there were
significant jobs in the national economy that Plaintiff could perform — is supported by
substantial evidence.
C.

Sentence Six Remand
Plaintiff argues that the court should remand this case to the Commissioner on the ground

that new evidence has come to light that may have changed the outcome of the case. Doc. 15 at

12 

14-19. Under the sixth sentence of 42 U.S.C. § 405(g), the court may “at any time order
additional evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding.”
Plaintiff relies on one “new” piece of evidence that she believes should compel the court
to remand the case to the Commissioner for reevaluation pursuant to Section 405(g): an EEG
evaluation that was conducted in October 2014. The court concludes that Plaintiff has not
satisfied her burden with respect to this piece of evidence.
Even if the court were to conclude that there was good cause5 for Plaintiff’s failure to
incorporate this new evidence into the record, Plaintiff has not demonstrated that the results of
the new EEG evaluation meet the sentence six standard for remand. In order for new evidence to
be considered material for purposes of a sentence six remand, the court “normally must
determine that the new evidence would have changed the [Commissioner’s] decision had it been
before [her].” Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir. 1991). “Implicit in this
requirement is that the proffered evidence relate to the time period for which the benefits were
denied.” Id.; see also Williams v. Barnhart, 178 F. App’x 785 (10th Cir. 2006) (concluding that a
remand was “not appropriate in this case because the new evidence does not demonstrate that the
findings relate back to the period on or before the date of the ALJ’s decision”).
Here, the new EEG evaluation was conducted in October 2014, over one month after the
date of the ALJ’s decision. AR at 14-16. See 20 C.F.R. § 404.620(a) (the claimant’s application
remains in effect until the ALJ hearing decision is issued). Although the evaluation refers to
Plaintiff’s history of self-reported traumatic brain injury and seizures, there is no information

5
The exam occurred after the ALJ issued his decision; thus, this evidence could not have been
submitted any earlier.
13 

regarding how the October 2014 observations were (or were not) retrospectively related to
Plaintiff’s condition during the relevant time period. Id. While the October 2014 EEG study
might be material to a new application, it is not probative of her condition at the hearing before
the ALJ. See Sanchez v. Health & Human Servs., 812 F.2d 509, 512 (9th Cir. 1987) (“The new
evidence indicates, at most, mental deterioration after the hearing, which would be material to a
new application, but not probative of his condition at the hearing.”); see also Villalobos v.
Colvin, 544 F. App’x 793, 796 (10th Cir. 2013) (refusing to remand based on a doctor’s opinion
submitted only to the Appeals Council, where the doctor’s diagnosis was not retroactive).
Without the necessary demonstration that the new functional capacity evaluation relates
to the period for which the benefits were previously denied, the court cannot remand the case
under sentence six.
CONCLUSION
The court is satisfied that the ALJ considered all relevant facts and that the record
contains substantial evidence from which the Commissioner could properly conclude under the
law and regulations that Ms. Sheriff was not disabled within the meaning of Titles II and XVI of
the Social Security Act and, therefore, not eligible to receive Disability Insurance Benefits or
Supplemental Security Income benefits. Accordingly, IT IS ORDERED that the Commissioner’s
final decision is AFFIRMED and this civil action is DISMISSED, with each party to bear her
own fees and costs.

DATED at Denver, Colorado, this 10th day of February, 2017.

BY THE COURT:

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s/Craig B. Shaffer
United States Magistrate Judge

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