Taylor v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) affirming the Commissioners final decision. Signed by District Judge John W. Lungstrum on 12/2/2013. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Penny Taylor,
Plaintiff,
v.
Case No. 12-4130-JWL
Carolyn W. Colvin,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM & ORDER
Plaintiff Penny Taylor brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of the decision of defendant, the Commissioner of Social Security, to deny her
application for a period of disability and disability insurance benefits under Title II of the Social
Security Act.
According to plaintiff, defendant failed to consider a post-hearing opinion
submitted by plaintiff’s treating psychiatrist concerning plaintiff’s onset date and erroneously
failed to call upon a medical advisor to determine the onset date of plaintiff’s disability. As
explained in more detail below, the court rejects plaintiff’s arguments and affirms defendant’s
decision.
I.
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Procedural Background
On February 14, 2013, Ms. Colvin became Acting Commissioner of Social Security and the
court thus substitutes Ms. Colvin for Commissioner Michael J. Astrue as the defendant. See
Fed. R. Civ. P. 25(d)(1).
On March 3, 2009, plaintiff filed her application for a period of disability and disability
insurance benefits, alleging disability beginning April 4, 2000 due to anxiety and depression.
The application was denied both initially and upon reconsideration. At plaintiff’s request, an
administrative law judge (“ALJ”) held a hearing on August 25, 2010, at which both plaintiff and
her counsel were present. On October 8, 2010, the ALJ rendered a decision in which he
determined that plaintiff was not under a “disability” as defined by the Social Security Act
before December 31, 2006, the date plaintiff was last insured for disability insurance benefits.
Consequently, the ALJ denied all benefits to plaintiff. After the ALJ’s unfavorable decision,
plaintiff requested review by the Appeals Council. The Appeals Council denied plaintiff’s
request for review on August 3, 2012, rendering the ALJ’s decision the final decision of
defendant.
II.
Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant’s decision is
supported by substantial evidence in the record as a whole and whether defendant applied the
correct legal standards. See Wells v. Colvin, 727 F.3d 1061, 1067 (10th Cir. 2013) (citing
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)). The Tenth Circuit has defined
“substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Wilson, 602 F.3d at 1140). In the course of its review, the
court may not reweigh the evidence or substitute its judgment for that of defendant. Cowan v.
Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008).
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III.
Relevant Framework for Analyzing Claim of Disability and the ALJ’s Findings
A “disability” for purposes of the Social Security Act requires both the “inability to
engage in any substantial gainful activity” and “a 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.” Bussell v. Astrue, 463 Fed. Appx. 779,
781 (10th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)). The Social Security Act further
provides that an individual “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” Wilson, 602 F.3d
at 1140 (quoting Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §
423(d)(2)(A), 1382c(a)(3)(B))).
The Social Security Administration has established a five-step sequential evaluation
process for determining whether a claimant is disabled, see id. at 1139, and the ALJ in this case
followed the five-step process. 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. Id. Step one
requires the claimant to show that he or she is not presently engaged in substantial gainful
activity. Id. Here, the ALJ determined that plaintiff was not engaged in substantial gainful
activity and, thus, properly proceeded to the second step. The second step of the evaluation
process involves a determination of whether “the claimant has a medically severe impairment or
combination of impairments” that significantly limits his or her ability to perform basic work
activities. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citing 20 C.F.R. § 404.1521).
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The ALJ in this case concluded that plaintiff’s post-traumatic stress disorder (PTSD); major
depression secondary to PTSD; and anxiety-related disorder were “severe” within the meaning
of the regulations and, thus, the ALJ proceeded to step three.
In step three, the ALJ determines whether the impairment “is equivalent to one of a
number of listed impairments that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity.” Best-Willie v. Colvin, 514 Fed. Appx. 728, 733 (10th Cir. 2013).
“If the impairment is listed and thus conclusively presumed to be disabling, the claimant is
entitled to benefits.” Id. If not, the evaluation proceeds to the fourth step, where the claimant
must show that the “impairment or combination of impairments prevents him from performing
his [or her] past work.” Wilson, 602 F.3d at 1139 (quoting Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007)). With respect to the third step of the process in this case, the ALJ determined
that plaintiff’s impairments were not listed or medically equivalent to those listed in the relevant
regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform past
relevant work as a landscape sales attendant in light of limitations on plaintiff’s ability to
interact with the general public.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process–
determining whether the claimant has the residual functional capacity (RFC) “to perform work
in the national economy, given her age, education, and work experience.” See id. (quoting Lax,
489 F.3d at 1084). At that point, the ALJ properly shifted the burden of proof to defendant to
establish that plaintiff retains a sufficient capacity to perform an alternative work activity and
that there are sufficient jobs in the national economy for a hypothetical person with the
claimant’s impairments. Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009). At this
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step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that
plaintiff, despite possessing certain nonexertional limitations concerning interaction with others,
nonetheless could perform a significant number of jobs in the national economy, including
performing work as a price marker, an inserting machine operator and an electrical assembler.
IV.
Analysis of Plaintiff’s Specific Arguments
In her motion, plaintiff contends that defendant made two errors in this case–both the
ALJ and the Appeals Council failed to consider the post-hearing opinion of plaintiff’s treating
psychiatrist suggesting that plaintiff’s impairments began before 2006 and the ALJ failed to call
on a medical advisor to determine the onset date of plaintiff’s disability. The court addresses
both of these arguments in turn.
After the administrative hearing before the ALJ, plaintiff’s treating psychiatrist Dr. Sam
Bradshaw completed two questionnaires provided to him by plaintiff’s counsel.2
Those
questionnaires, along with a cover letter to the ALJ from plaintiff’s counsel, are presently before
the court as Exhibit 16F. The first questionnaire reflects that Dr. Bradshaw treated plaintiff
from October 30, 2006 through April 22, 1010 and that, in Dr. Bradshaw’s opinion, plaintiff’s
condition met the requirements of Listing 12.06. The second questionnaire, titled “Mental
Residual Functional Capacity Questionnaire,” reflects Dr. Bradshaw’s opinion that plaintiff’s
mental problems were sufficiently severe to prevent her from sustaining work activity beginning
in April 2000. These questionnaires were purportedly sent to the ALJ’s office via facsimile on
September 24, 2010. According to plaintiff, defendant erred when it failed to consider this
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Plaintiff is now represented by different counsel.
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evidence because it was the “only evidence” supporting the conclusion that plaintiff was
disabled prior to her date last insured. Defendant does not dispute that Dr. Bradshaw’s posthearing opinion (Exhibit 16F) was not expressly considered by the ALJ or the Appeals Council.
The court finds no error in either the ALJ’s failure or the Appeals Council’s failure to
expressly consider Dr. Bradshaw’s post-hearing opinion. With respect to the ALJ’s failure to
consider the opinion, plaintiff has not shown the court that the opinion was ever made part of the
record before the ALJ. At the end of the administrative hearing, plaintiff’s counsel did not
request that the record be held open for the submission of additional evidence and there is no
indication that the ALJ expected to receive (or that plaintiff planned to submit) additional
evidence prior to issuing his decision. Significantly, the ALJ expressly closed the record at the
conclusion of the hearing on August 25, 2010. In faxing Dr. Bradshaw’s opinion to the ALJ,
plaintiff’s counsel did not request that the ALJ reopen the record and did not make any effort to
explain why the evidence was not submitted prior to the hearing. See 20 C.F.R. § 405.331(a)
(ALJ will accept evidence submitted after hearing and prior to issuance of decision only if
claimant shows that there is a reasonable probability that it will affect the outcome of the claim
and circumstances beyond his or her control that prevented earlier submission). Dr. Bradshaw’s
opinion, then, was not included in the List of Exhibits attached to the ALJ’s decision. Because
plaintiff has not sustained her burden of establishing that the opinion was part of the record
before the ALJ, the court finds no error in the ALJ’s failure to consider it. See Eads v. Secretary
of Health & Human Servs., 983 F.2d 815, 816-17 (7th Cir. 1993) (ALJ cannot be faulted for
having failed to weigh evidence never presented to him); Ostigny v. Commissioner of Social
Security, 2013 WL 4605647, at *3 (S.D. Ohio Aug. 29, 2013) (in reviewing ALJ’s decision,
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court could not consider post-hearing evidence that was untimely submitted to the ALJ after the
record was closed and ALJ did not err by failing to address the evidence); Franson v.
Commissioner of Social Security, 556 F .Supp. 2d 716, 723-24 (W.D. Mich. 2008) (any fault
relating to ALJ’s failure to consider post-hearing exhibits rested “squarely on plaintiff’s
attorney’s shoulders” when attorney mailed exhibits to ALJ weeks after record was closed and
exhibits were thus never properly before the ALJ).
Similarly, there is no evidence before the court that plaintiff’s counsel made Dr.
Bradshaw’s opinion part of the record before the Appeals Council. The record before this court
reflects that the only “additional evidence” that the Appeals Council received was Exhibit
21E—a brief from plaintiff’s counsel that made no reference to Dr. Bradshaw’s opinion. In the
absence of evidence that Exhibit 16F was properly before the Appeals Council, it was not error
for the Appeals Council to fail to consider the evidence. Even if the evidence had been properly
submitted to the Appeals Council, it would play no role on judicial review because the evidence
is neither “new” nor “material” and would have had no bearing on the outcome of this case.
Krauser v. Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011).
While plaintiff’s counsel did not
obtain the questionnaires from Dr. Bradshaw until September 2010, they were clearly available
and obtainable prior to the administrative hearing in this case. Indeed, the questionnaires relate
exclusively to Dr. Bradshaw’s treatment of plaintiff from 2006 through April 2010. Plaintiff,
then, has not shown that the evidence is “new” for purposes of 20 C.F.R. § 404.870(b).
Neither has plaintiff established that the evidence is material. Dr. Bradshaw’s opinion
that plaintiff’s condition met the requirements of Listing 12.06 (and was therefore disabled) is
not dispositive because it is a legal conclusion reserved to the Commissioner. Whatley v.
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Colvin, 2013 WL 3285603, at *2 (10th Cir. July 1, 2013) (citing Castellano v. Sec’y of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)). Moreover, Dr. Bradshaw’s opinion that
plaintiff’s impairments became disabling in April 2000 is hardly persuasive when Dr. Bradshaw
did not begin treating plaintiff until 2006. Finally, plaintiff’s contention that the opinion of Dr.
Bradshaw is the “only evidence” that plaintiff’s impairments began prior to her date last insured
lacks merit. The ALJ fully considered the treatment notes of Dr. Bradshaw from 2006—notes
that did not indicate an inability to work and that reflected marked improvement with
medication and therapy. The ALJ also considered—and largely rejected as inconsistent with
other evidence in the record—evidence from Dr. Robert Jacoby, plaintiff’s primary care
physician, who opined that plaintiff could not sustain regular work due to depression and
anxiety prior to 2006. For the foregoing reasons, the court finds no error in any failure to
consider the post-hearing opinion of Dr. Bradshaw.
The court also rejects plaintiff’s argument that the ALJ erred by failing to call on a
medical advisor, in accordance with Social Security Ruling (SSR) 83-20, to determine the onset
date of plaintiff’s disability in light of ambiguous medical evidence on that issue. The Tenth
Circuit has held that SSR 83-20 does not apply when the ALJ has determined, as here, that the
claimant has no disability. Webb v. Secretary of Health & Human Servs., 17 F.3d 1437, 1994
WL 50459, at *2 (10th Cir. Feb. 22, 1994) (if ALJ finds no disability, then “we do not reach the
question of when any disability started”); see also Lair-Del Rio v. Astrue, 380 Fed. Appx. 694,
696 (9th Cir. 2010) (requirement that ALJ call a medical expert where the onset date of the
disability is unclear only applies where a claimant has been found disabled); Nix v. Barnhart,
160 Fed. Appx. 393, 396-97 (5th Cir. 2005) (same, citing cases); Scheck v. Barnhart, 357 F.3d
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697, 701 (7th Cir. 2004) ( SSR 83-20 did not apply where ALJ did not find that claimant was
disabled); accord Sunderland v. Astrue, 2012 WL 1534692, at *6 (D. Kan. May 1, 2012) (where
plaintiff failed to show error in determination that plaintiff was not disabled, there was “no
reason” to infer onset date for purposes of SSR 83-20).
Because the ALJ determined that
plaintiff was not disabled—a determination that plaintiff has not shown was erroneous—she has
not established that SSR 83-20 applies to her case.
In sum, having carefully reviewed the record in this case and having considered
plaintiff’s arguments in light of the record, the court concludes that substantial evidence
supports defendant’s decision to deny Ms. Taylor’s application for disability benefits and that no
deviation from established legal standards occurred.
IT IS THEREFORE ORDERED BY THE COURT THAT judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) affirming the Commissioner’s final
decision.
IT IS SO ORDERED.
Dated this 2nd day of December, 2013, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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