Henderson v. Commissioner, Social Security Administration

Filing 20

ORDER AFFIRMING DECISION OFADMINISTRATIVE LAW JUDGE by Judge Daniel D. Domenico on 4/26/21. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Civil Action No. 1:20-cv-00603-DDD

BOBBI K HENDERSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________________________________________________
ORDER AFFIRMING DECISION OF
ADMINISTRATIVE LAW JUDGE
__________________________________________________________________
On October 3, 2016, Plaintiff Bobbi Henderson filed a claim for disability benefits with the Commissioner of Social Security, the Defendant
in this case. On January 3, 2019, applying the five-step sequential
framework that governs disability-benefit claims, see 20 C.F.R.
§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); Casias v.
Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991) (citation omitted), an Administrative Law Judge (ALJ) found that Ms.
Henderson had Post Traumatic Stress Disorder resulting from an assault in 2009. (AR at 124.1) But, considering the entirety of the evidence
before him concerning Ms. Henderson’s condition, the ALJ determined
that Ms. Henderson’s PTSD was not disabling within the meaning of the
Social Security Act and that Ms. Henderson could perform work that

“AR” refers to the Administrative Record in this matter, which is
docket dumber 13, and the attachments thereto.
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exists in significant numbers in the national economy. (Id. at 130.) The
Appeals Council declined to review the ALJ’s decision, and Ms. Henderson’s appeal of the decision is currently before the Court. (See Docs. 16,
17, 18.) Ms. Henderson argues that the Commissioner made four reversible errors. The Court disagrees for the reasons explained below.
I.

The Medical Opinions of Jessica Sands and Malgorzata
Gawron

Ms. Henderson first argues that the ALJ erred when he accorded little weight to the opinions of two of Ms. Henderson’s care providers: Jessica Sands, a Licensed Professional Counselor; and Malgorzata Gawron,
a Nurse Practitioner. Ms. Gawron and Ms. Sands completed two medical
source statements for Ms. Henderson’s application for social security
benefits. (AR at 1112–1116, 1971.) In their first medical source statement completed on February 16, 2017, Ms. Garwon and Ms. Sands
opined that Ms. Henderson “experiences symptoms congruent with”
PTSD and that “she experiences debilitating anxiety that prevent” regular sleep patterns and leaving her home. (Id. at 1113.) Ms. Garwon and
Ms. Sands noted that their observations were based on care that began
in January 2015. (Id. at 1113, 1116.) Ms. Sands completed a second medical source statement on November 5, 2018. She opined that Ms. Henderson has “debilitating anxiety that created a significant barrier to
completing daily tasks.” (Id. at 1971.) Ms. Sands noted that her opinion
was based on a treatment period of January 23, 2015 through March 7,
2017. (Id.) The ALJ reviewed this evidence in detail, but gave it little
weight for two reasons: it didn’t concern the relevant time period for determining entitlement to benefits, 2009 to 2014; and neither Ms. Sands
nor Ms. Garwon were acceptable medical sources “who can provide evidence to establish an impairment” under the regulations in effect at the

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time Ms. Henderson filed her claim, 20 C.F.R. § 404.1513(a) (2016). (AR
at 128.)
The ALJ’s decision to discount Ms. Sands and Ms. Garwon’s opinions
wasn’t error. The ALJ was correct that the dispositive question is
whether Ms. Sands was disabled before the expiration of her insured
status, which occurred in December 2014. Flaherty v. Astrue, 515 F.3d
1067, 1069 (10th Cir. 2007) (“Claimant must establish onset of disability prior to date insured status expired.” (citing Henrie v. U.S. Dep’t of
Health & Hum. Servs., 13 F.3d 359, 360 (10th Cir. 1993)); see also Cobb
v. Colvin, 175 F. Supp. 3d 1227, 1234 (D. Colo. 2016) (same); 20 C.F.R.
§ 404.131(a) (same). Neither Ms. Garwon nor Ms. Sands cared for Ms.
Henderson before that date, so their opinions aren’t probative of
whether Ms. Henderson could return to work before her insured status
expired. Ms. Henderson points out that the first medical source statement noted that she reported that her problems began in 2009. (See AR
at 1115.) But neither Ms. Sands nor Ms. Garwon observed Ms. Henderson at that time. Indeed, Ms. Sands made clear that the “earliest dates
the limitations . . . have been present” for purposes of her opinions was
January 23, 2015. (Id. at 1971.) Because Ms. Sands and Ms. Gawron did
not observe Ms. Henderson during the relevant time period, the ALJ’s
decision to disregard their post-dated opinions wasn’t error.
Even if they had provided relevant evidence, however, the ALJ was
also right that neither Ms. Gawron nor Ms. Sands were acceptable medical sources under the regulations in effect at the time Ms. Henderson
filed her application for benefits.2 20 C.F.R. § 404.1513(a)(2016) listed

The Commissioner significantly revised the regulations governing
applications for disability benefits in 2017. However, those revisions
only apply to applications filed on or after March 27, 2017, whereas Ms.
Henderson filed her application in 2016. See Balliett v. Berryhill, No.
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neither nurse practitioners nor licensed professional counselors as acceptable medical sources “who can provide evidence to establish an impairment.” Subsection (d) of that regulation makes clear, moreover, that
it is a purely discretionary decision of the Commissioner whether to
weigh evidence of other medical sources such as nurse practitioners. See
id. § 404.1513(d) (2016) (an ALJ is permitted but not required to consider evidence from other medical sources).3 The ALJ thus did not err in
rejecting this evidence.
II.

The Medical Opinions of Deborah Williams

Ms. Henderson next argues that the ALJ’s treatment of the opinion
of Deborah Williams, a licensed professional counselor, was reversible
error. Ms. Williams treated Ms. Henderson from September 2010 until
August 2012. (AR at 373.) Ms. Williams noted that Ms. Henderson experienced significant symptoms related to her PTSD—difficulty eating,
1:17-CV-00149, 2018 WL 5259613, at *1 n.1 (D. Utah May 8, 2018) (citing See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (final rules)), report and recommendation adopted, No. 117CV00149RJSDBP, 2018 WL 4405617 (D.
Utah Sept. 17, 2018). Ms. Henderson’s arguments based on the current
regulations thus have no relevance to her appeal.
Ms. Henderson argues that the current version of 20 C.F.R.
§ 404.1527(f)(1) (2021) required the ALJ to weigh the opinions of nonacceptable medical sources. But as explained in the previous footnote,
the regulations currently in effect do not apply to Ms. Henderson’s application for benefits because she filed her application before their effective date. Yet even if the current version of § 404.1527 did apply, it’s far
from clear that that provision requires a different result. By its own
terms, the rule makes clear that “not every fact for weighing opinion
evidence will apply in every case.” Id. And the next subsection merely
says that the ALJ “should explain the weight given to opinions” from
non-acceptable sources—“generally.” Id. § 404.1527(f)(2). And the ALJ
did in fact weigh the opinion evidence from Ms. Garwon and Ms. Sands
and explained the weight given to them. But as explained above, the
ALJ determined that their opinions deserved little weight because they
did not concern the relevant time period.
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sleeping, constant worry—and that her symptoms were making “it difficult for her” to handle “a high stress job.” (Id.) The ALJ considered this
opinion but gave it little weight because the determination whether a
claimant can work is left to the Commissioner alone. (Id. at 127.) Ms.
Henderson argues that this constituted reversible error because it
wasn’t simply a conclusion that Ms. Henderson was unable to work.
The ALJ was correct that he didn’t have to credit Ms. Williams’ testimony concerning Ms. Henderson’s difficulty working. See 20 C.F.R.
§ 404.1527(d)(1) (2016) (“A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will determine that
you are disabled.’”). Ms. Henderson argues that Ms. Williams’s opinion
did more than merely say she was unable to work but instead concerned
Ms. Henderson’s ability to withstand workplace stress. True, but as the
Commissioner correctly points out, the ALJ ultimately determined that
Ms. Henderson wasn’t capable of returning to her high-stress job. The
ALJ instead determined that Ms. Henderson was capable of “simple”
non-stressful work. (AR at 130.) Ms. Williams’s opinion that Ms. Henderson isn’t capable of performing a high-stress job is thus consistent
with the ALJ’s ultimate determination.4
III.

The Appeals Council

Ms. Henderson’s third argument is that the Appeals Council erred
when it refused to consider new evidence, specifically the clinical notes
of Ms. Williams, that weren’t made available to the ALJ. Under the relevant regulations governing Appeals Council review, “the Appeals
Council will review a case if . . . the Appeals Council receives additional

Ms. Williams was also not an acceptable medical source for the reasons explained above. The ALJ was not required to credit her opinions
as a result.
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evidence that is new, material, and relates to the period on our 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)(2020).5
The fundamental problem with Ms. Henderson’s argument is that
the Appeals Council did review Ms. Williams notes, determining that
they wouldn’t change the outcome:
You also submitted treatment records from Deborah Williams, M.A., L.P.C., dated September 16, 2010 to August 2,
2012 (89 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the
decision. We did not exhibit this evidence.
(AR at 7.) Ms. Henderson implies that the Appeals Council’s weighing
of this new evidence was inadequate, but the Tenth Circuit has explained that a court must “take a lower tribunal at its word when it declares it has considered a matter.” Flaherty v. Astrue, 515 F.3d 1067,
1071 (10th Cir. 2007). And the limited scope of this Court’s review of
decisions of the Commissioner means that the Court should nor, and will
not, reweigh the evidence. Id.

Ms. Henderson relies solely on the current regulations in crafting her
argument to the Court. Yet even if the older regulations in effect at the
time she filed her claim govern her appeal, those regulations don’t materially differ from those currently in effect for purposes of this case. See
20 C.F.R. § 404.970(b) (2016) (Appeals Council must determine whether
“new and material evidence” renders ALJ’s decision contrary to the
weight of evidence); see also Wilkins v. Sec’y, Dep’t of Health & Hum.
Servs., 953 F.2d 93, 96 (4th Cir. 1991) (“Evidence is material if there is
a reasonable possibility that the new evidence would have changed the
outcome.”).
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IV.

Consistency of Ms. Henderson’s Statements

Ms. Henderson’s final argument is that the ALJ erred in finding that
her testimony about her symptoms wasn’t entirely consistent with the
objective medical evidence. (See AR at 124.) In making this determination, the ALJ first gave a detailed summary of Ms. Henderson’s testimony and the consistency in her reporting of her symptoms. (Id.) The
ALJ noted that, after her assault in 2009, Ms. Henderson “became very
anxious, distracted, and was not sleeping.” (Id.) The ALJ explained,
however, that Ms. Henderson’s symptoms didn’t entirely align with the
objective medical evidence. (Id.) Among other things, the ALJ noted
medical evidence that Ms. Henderson began getting better sleep four
months after the symptoms began, and that her primary care physician
reported that in 2011 Ms. Henderson “appeared well of in no apparent
distress, alert, oriented, pleasant, [] cooperative, with no indication that
the claimant had difficulty understanding issues, remembering, or concentrating during her medical appointments.” (Id. at 125.)
Ms. Henderson argues that the ALJ failed to account for the factors
in 20 C.F.R. § 404.1529(c)(3) and thus his decision to discount her testimony was legal error. But all that § 404.1529(c)(3) requires is the ALJ
to “carefully consider any other information you may submit about your
symptoms,” including, among other things, how those symptoms affect
activities of daily living. The ALJ did precisely that, but nevertheless
found that the objective medical evidence outweighed Ms. Henderson’s
testimony about her symptoms. An ALJ’s ruling need be supported only
by substantial evidence—less than a preponderance, more than a scintilla—to survive a challenge on appeal. Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007). The ALJ’s decision regarding Ms. Henderson’s
personal observations was so supported and thus was not reversible on
appeal or by this Court.
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CONCLUSION
The decision of the ALJ is AFFIRMED.
DATED: April 26, 2021.

BY THE COURT:

_______________________
Daniel D. Domenico
United States District Judge

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