Gallegos v. Commissioner, Social Security Administration

Filing 18

ORDER: The SSA's decision is reversed and remanded. On remand, SSA should consider Dr. Sanidas's report and spinal impairment questionnaire, by Judge Lewis T. Babcock on 4/4/2018. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No.: 17-cv-01677-LTB
JOE V. GALLEGOS,
v.

Plaintiff,

NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
Plaintiff Joe Gallegos appeals the final decision of the Acting Commissioner
of Social Security (“SSA”) denying his application for disability insurance benefits
under Title II Social Security Act, 42 U.S.C. § 401 et seq. I have considered the
parties’ briefs (ECF Nos. 12–13) and the administrative record (ECF No. 9) (“AR”).
Oral argument would not materially assist me in determining this appeal.
Mr. Gallegos argues the administrative law judge (ALJ) improperly weighed
the medical opinion evidence in the record and improperly evaluated Mr. Gallegos’s
testimony. He also argues that SSA’s Appeals Council failed to properly consider
relevant medical evidence on appeal. Because I agree that the Appeals Council
failed to consider new, relevant, and material evidence, I REVERSE this case and
REMAND with instructions to consider that evidence. I decline to reach Mr.
Gallegos’s other arguments, which may be impacted by the new evidence.

I. Background
A.

Procedural History
In July 2014, Mr. Gallegos filed an application for disability insurance

benefits with SSA, alleging disability beginning June 19, 2014. AR 136–37. After
SSA initially denied his claim, AR 58–73, Mr. Gallegos requested a hearing before
an ALJ, AR 85. The hearing took place on April 5, 2016. AR 38–57. On May 12,
2016, the ALJ denied Mr. Gallegos’s claim, concluding he was not disabled within
the meaning of the Social Security Act. AR 20–37. Mr. Gallegos asked SSA’s
Appeals Council to review the ALJ’s decision. AR 18–19. On May 4, 2017, the
Appeals Council denied review, AR 1–7, making the ALJ’s decision the final
decision of SSA, see Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). On July
10, 2017, Mr. Gallegos timely filed this appeal. (ECF No. 1.) I have jurisdiction
pursuant to 42 U.S.C. § 405(g).
II. Legal Standards
A.

SSA’s Five–Step Process for Determining Whether a Claimant Is “Disabled”
A claimant is “disabled” under Title II of the Social Security Act if he is

unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also Bowen v. Yuckert, 482 U.S.
137, 140 (1987). SSA has established a five-step sequential evaluation process for
determining whether a claimant is disabled and thus entitled to benefits. 20 C.F.R.
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§ 404.1520.
At step one, SSA asks whether the claimant is presently engaged in
“substantial gainful activity.” If he is, benefits are denied and the inquiry stops. §
404.1520(b). At step two, SSA asks whether the claimant has a “severe
impairment”—that is, an impairment or combination of impairments that
“significantly limits [his] physical or mental ability to do basic work activities.” §
404.1520(c). If he does not, benefits are denied and the inquiry stops. If he does,
SSA moves on to step three, where it determines whether the claimant’s
impairment(s) “meet or equal” one of the “listed impairments”—impairments so
severe that SSA has determined that a claimant who has them is conclusively
disabled without regard to the claimant’s age, education, or work experience. §
404.1520(d). If not, SSA goes to step four. At step four, SSA determines the
claimant’s residual functional capacity (“RFC”)—that is, what he is still able to do
despite his impairments, and asks whether the claimant can do any of his “past
relevant work” given that RFC. § 404.1520(e). If not, SSA goes to the fifth and final
step, where it has the burden of showing that the claimant’s RFC allows him to do
other work in the national economy in view of his age, education, and work
experience. § 404.1520(g). At this step, SSA’s Grid rules may mandate a finding of
disabled or not disabled without further analysis based on the claimant’s age,
education, and work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2. In contrast
with step five, the claimant has “the burden of establishing a prima facie case of
disability at steps one through four.” Doyal, 331 F.3d at 760.
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B.

Standard for Reviewing SSA’s Decision
My review is limited to determining whether SSA applied the correct legal

standards and whether its decision is supported by substantial evidence in the
record. Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003). With regard
to the law, reversal may be appropriate when SSA either applies an incorrect legal
standard or fails to demonstrate reliance on the correct legal standards. See

Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). With regard to the evidence,
I must “determine whether the findings of fact . . . are based upon substantial
evidence, and inferences reasonably drawn therefrom. If they are so supported, they
are conclusive upon the reviewing court and may not be disturbed.” Trujillo v.

Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970). “Substantial evidence is more
than a scintilla, but less than a preponderance; it is such evidence that a reasonable
mind might accept to support the conclusion.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The
record must demonstrate that the ALJ considered all of the evidence, but an ALJ is
not required to discuss every piece of evidence. Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996). I may not reweigh the evidence or substitute my judgment
for that of the ALJ. Casias v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
III. The ALJ’s Decision
The ALJ followed the five-step analysis outlined above. At step one, the ALJ
found that Mr. Gallegos had not engaged in substantial gainful activity from his
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alleged onset date of June 19, 2014, and met the insured requirements of the Social
Security Act through December, 31, 2019. AR 25. At step two, the ALJ found Mr.
Gallegos had several severe impairments: (1) obesity; (2) degenerative disc disease
of the cervical spine, C4–C7, status post-anterior cervical discectomy and fusion,
C4–C7; (3) degenerative disc disease, L1–L4, status post-remote lumbar
discectomy/laminectomy; (4) gout; and (5) obstructive sleep apnea. Id. At step three,
the ALJ concluded that Mr. Gallegos’s impairments did not meet or equal any of the
“listed impairments” that mandate a conclusive finding of disability under the social
security regulations. AR 25–27. At step four, the ALJ found that Mr. Gallegos had
the following RFC:
[T]he claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) with the following abilities and
limitations: the claimant can lift and carry 10 pounds frequently and
20 pounds occasionally; the claimant can sit for a total of six hours
during an eight-hour workday; the claimant can stand and/or walk for
a combined total of six hours during an eight-hour workday; the
claimant can occasionally stoop, kneel, crouch, and crawl; and the
claimant can perform semiskilled work due to mild to moderate
impairments in concentration secondary to obstructive sleep apnea.
AR 27. The ALJ determined that Mr. Gallegos could return to his past relevant
work as a master control operator. AR 31–32. The ALJ accordingly concluded that
Mr. Gallegos was not disabled under the Social Security Act. AR 32.
IV. Analysis
Mr. Gallegos’s appeal focuses primarily on SSA’s evaluation of his spinal
impairment, for which he has had multiple surgeries. He argues the ALJ
improperly rejected his treating physician’s opinion and wrongly discounted his
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subjective complaints about the debilitating effects of his impairments. He also
argues that the Appeals Council improperly failed to consider a November 2016
report and questionnaire (ECF Nos. 12-2, 12-3) from an independent examining
physician, Dr. John Sanidas. Because I agree with the latter argument, I decline to
reach the others, which may be impacted by the new evidence.
Dr. Sanidas, a specialist in occupational medicine, examined Mr. Gallegos in
November 2016, roughly six months after the ALJ’s decision denying benefits. (ECF
No. 12-2 at 6; ECF No. 12-3 at 1.) Dr. Sanidas also reviewed scans of Mr. Gallegos’s
cervical and lumbar spine from the relevant time period. (ECF No. 12-2 at 1–2.) Dr.
Sanidas opined that Mr. Gallegos had extreme limitations beginning in June 2014
and was unable to work because of them. (ECF No. 12-2 at 6; ECF No. 12-3 at 3.)
Because Dr. Sanidas’s examination was performed after the ALJ issued his
decision, Mr. Gallegos submitted Dr. Sanidas’s opinion (which consisted of a letter
describing his conclusions and “spinal impairment questionnaire) to the Appeals
Council while his case was pending before it.
“Under 20 C.F.R. §§ 404.970(b) and 416.1470(b), the Appeals Council must
consider evidence submitted with a request for review if the additional evidence is
(a) new, (b) material, and (c) relate[d] to the period on or before the date of the
ALJ’s decision.” Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004)
(quotation omitted). Whether evidence qualifies as new, material, and
chronologically relevant is a question of law subject to de novo review. Id. There is
no dispute that Dr. Sanidas’s report is new, but SSA argues it is neither
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chronologically relevant nor material.
Even though Dr. Sanidas said his opinion covered the entire disability period,
the Appeals Council refused to consider it, concluding that it “does not relate to the
period at issue” and was not chronologically relevant. AR 2. SSA defends the
Appeals Council’s time-period determination by focusing on the date of Dr.
Sanidas’s examination, several months after the ALJ’s decision. But as Mr.
Gallegos points out, Dr. Sanidas explicitly said his opinion covered the relevant
period, beginning in June 2014, and he reviewed diagnostic test results from the
relevant period. Thus, I disagree with the Appeals Council’s determination that the
report did not relate to the relevant time period. See Washington v. Soc. Sec.

Admin., Com’r, 806 F.3d 1317, 1322 (11th Cir. 2015) (“The opinions contained in Dr.
Wilson’s materials . . . . are chronologically relevant even though Dr. Wilson
examined him several months after the ALJ’s decision.”).
SSA also argues the report was not material because there is no reasonable
possibility that it would have changed the outcome. SSA argues that there is no
evidence that Dr. Sanidas reviewed Mr. Gallegos’s treatment records or the
opinions of other physicians, which undermines his opinion. SSA’s argument on this
point overlooks the fact that Dr. Sanidas summarized Mr. Gallegos’s past treatment
for his spinal impairments in the spinal impairment questionnaire. (ECF No. 12-2
at 2 (describing past treatments). And as SSA concedes, Dr. Sanidas reviewed
diagnostic test results and imaging studies, and he personally examined Mr.
Gallegos. Perhaps most fundamentally, Dr. Sanidas’s opinion is the only one in the
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record following Mr. Gallegos’s April 2015 spinal surgery. Much of the ALJ’s
decision focused on the improvement of Mr. Gallegos’s symptoms following that
surgery. E.g., AR 30 (explaining that surgical graft and cage were in good position
following surgery and that he had functional gains and increased strength several
months after the surgery). The outcome of the case may well have changed if SSA
had considered Dr. Sanidas’s opinion that despite the April 2015 surgery, Mr.
Gallegos had severe impairments, particularly because Dr. Sanidas is a boardcertified surgeon and specialist in occupational medicine.
Because Dr. Sanidas’s report and spinal impairment questionnaire were new,
chronologically relevant, and material, the Appeals Council erred by refusing to
consider it. Because “the evidence qualifies but the Appeals Council did not consider
it, the case should be remanded for further proceedings.” Chambers, 389 F.3d at
1142.
V. Conclusion
For the above reasons, the SSA’s decision is REVERSED and REMANDED.
On remand, SSA should consider Dr. Sanidas’s report and spinal impairment
questionnaire. (ECF Nos. 12-2, 12-3.)

Dated: April

4th , 2018, in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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