Chavez v. Social Security Administration

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 17 Plaintiff's Motion to Remand to Agency (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LAZARITA CHAVEZ,
Plaintiff,
v.

No. 16-cv-1253 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum [Doc. 17] (“Motion”), filed on June 16, 2017. The
Commissioner responded on August 29, 2017. [Doc. 21]. Plaintiff replied on September 28,
2017. [Doc. 24]. The parties have consented to the undersigned’s entering final judgment in
this case. [Doc. 9]. Having meticulously reviewed the entire record and being fully advised in
the premises, the Court finds that the Appeals Council erred in failing to consider Dr. Morgan’s
reports. Accordingly, the Motion will be granted, and the case will be remanded for further
proceedings.
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision2 is supported by substantial evidence and whether the correct legal standards were

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec’y of
Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)). If substantial evidence
supports the Commissioner’s findings and the correct legal standards were applied, the
Commissioner’s decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously
review the entire record but should neither re-weigh the evidence nor substitute its judgment for
that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214;
Doyal, 331 F.3d at 760. The decision “is not based on substantial evidence if it is overwhelmed
by other evidence in the record or if there is a mere scintilla of evidence supporting it.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. While a court may not re-weigh the
evidence or try the issues de novo, its examination of the record as a whole must include
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A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the
ALJ’s decision, 20 C.F.R. §§ 404.981, 416.1481. The Tenth Circuit, however, has held that in some situations, a
court must consider evidence beyond that which was before the ALJ. See Martinez v. Barnhart, 444 F.3d 1201,
1207−08 (10th Cir. 2006); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). Pursuant to 20 C.F.R.
§§ 404.970(b) and 416.1470(b), any new and material evidence that relates to the period on or before the date of
the ALJ’s decision shall be considered by the Appeals Council in determining whether to review the ALJ’s
decision. If the Appeals Council denies review, the ALJ’s decision becomes the Commissioner’s final decision.
O’Dell, 44 F.3d at 858 (citing 20 C.F.R. § 404.981). Because a court reviews the final decision based on “the
record as a whole,” it will consider the evidence that was before the ALJ as well as the new and material evidence
that was before the Appeals Council. Id. (citing Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994)). A court reviews the Commissioner’s decision, which is the ALJ’s decision and not the
Appeals Council’s denial of review. See id. Considering all of the evidence in the administrative record, a court
decides whether the ALJ’s findings are supported by substantial evidence and whether the correct legal standards
were applied. Maes, 522 F.3d at 1096. Accordingly, here, the Court reviews the ALJ’s decision considering the
entire record, including the evidence submitted to the Appeals Council. Tr. 908–66.

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“anything that may undercut or detract from the [Commissioner]’s findings in order to
determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262
(10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence
does not prevent [the] findings from being supported by substantial evidence.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
2004)).
“The failure to apply the correct legal standard or to provide this court with a sufficient
basis to determine that appropriate legal principles have been followed is grounds for reversal.”
Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted).
Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant must establish that she 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).
In light of this definition for disability, a five-step sequential evaluation process has been
established for evaluating a disability claim.

20 C.F.R. §§ 404.1520, 416.920; Bowen v.

Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the
burden to show that: (1) she is not engaged in “substantial gainful activity”; and (2) she has a
“severe medically determinable . . . impairment . . . or a combination of impairments” that has
lasted or is expected to last for at least one year; and either (3) her impairment(s) either meet or
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equal one of the “Listings”3 of presumptively disabling impairments; or (4) she is unable to
perform her “past relevant work.”

20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv);

Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts
to the Commissioner to show that the claimant is able to perform other work in the national
economy, considering her residual functional capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
Procedural Background
Plaintiff applied for supplemental security income, a period of disability, and disability
insurance benefits on July 22, 2014. Tr. 36. She alleged a disability-onset date of October 25,
2013. Id. Her claims were denied initially and on reconsideration. Id. Plaintiff requested a
hearing before an administrative law judge (“ALJ”). Id. ALJ Ann Farris held a hearing on
March 30, 2016, in Albuquerque, New Mexico. Tr. 36, 54. Plaintiff appeared in person with
her attorney. Tr. 36, 54. The ALJ heard testimony from Plaintiff and an impartial vocational
expert, Karen N. Provine. Tr. 36, 82–87.
The ALJ issued her unfavorable decision on May 9, 2016. Tr. 48. Initially, she found
that Plaintiff met the insured status requirements through December 31, 2016. Tr. 39. At
step one, she found that Plaintiff had not engaged in substantial gainful activity since the alleged
onset date. Id. Because Plaintiff had not engaged in substantial gainful activity for at least
12 months, the ALJ proceeded to step two. Id. There, she found that Plaintiff suffered from the
following severe impairments: post-traumatic stress disorder (“PTSD”), depressive disorder,
3

20 C.F.R. pt. 404, subpt. P, app. 1.

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and polysubstance abuse. Tr. 39–40. At step three, the ALJ found that Plaintiff’s impairments
met Listing 12.06.

Tr. 40–41.

However, the ALJ found that if Plaintiff stopped using

substances, her impairments, alone or in combination, would not meet or medically equal a
Listing. Tr. 42–43.
Because none of Plaintiff’s impairments met or medically equaled a Listing (assuming
cessation of substance use), the ALJ went on to assess Plaintiff’s RFC. Tr. 43–46. The ALJ
found that:
If [Plaintiff] stopped the substance use, [she] would have the
[RFC] to perform light work (lift 20 pounds occasionally,
stand/walk for six hours in an eight-hour workday and sit for six
hours in an eight-hour workday) as defined in 20 [C.F.R.
§§] 404.1567(b) and 416.967(b) except she should avoid all
exposure to hazards and can kneel, crouch and crawl only
occasionally. She can have occasional, superficial contact with
co-workers but no contact with the general public.
Tr. 43. At step four, the ALJ found that Plaintiff could not return to her past relevant work
irrespective of her substance use. Tr. 47. At step five, the ALJ found that, based on Plaintiff’s
RFC, age, education, and work experience and the testimony of the VE, if Plaintiff stopped
using substances, she could perform work that exists in significant numbers in the national
economy. Tr. 47–48. Ultimately, the ALJ found that Plaintiff had not been under a disability,
as defined by the Act, and she denied the claims. Tr. 48.
After the ALJ denied the claims, Plaintiff submitted additional evidence to the Appeals
Council. Tr. 2, 5. The Appeals Council accepted certain evidence, which pre-dated the ALJ’s
decision, and made it part of the record. Tr. 2, 908–66. Nevertheless, the Appeals Council
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found that it “[did] not provide a basis for changing the [ALJ]’s decision.” Tr. 2. The evidence
that post-dated the ALJ’s decision was not made part of the record. Tr. 2, 9–26. The Appeals
Council found that the “new information [was] about a later time[, and therefore did] not affect
the [ALJ’s decision].” Tr. 2. Remaining unpersuaded, the Appeals Council denied Plaintiff’s
request for review on September 13, 2016. Tr. 1−5. Plaintiff timely filed the instant action on
November 16, 2016. [Doc. 1].
Analysis
The Appeals Council erred in failing to consider Dr. Morgan’s reports. See Tr. 16–26.
Therefore, the case will be remanded. The Court will not address the other errors alleged by
Plaintiff at this time in order to allow the Appeals Council the first opportunity to evaluate the
ALJ’s decision in light of the complete record.

See Chambers v. Barnhart, 389 F.3d 1139,

1143 (10th Cir. 2004) (“[T]he Appeals Council, which has the responsibility to determine in the
first instance whether, following submission of additional, qualifying evidence, the ALJ’s
decision is contrary to the weight of the evidence currently of record.”) (internal quotation
marks omitted).
Whether evidence qualifies for consideration by the Appeals Council is a question of
law subject to de novo review. Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003).
Additional evidence should only be considered if it is new, material, and chronologically
pertinent. 20 C.F.R. §§ 404.970(b), 416.1470(b). Evidence is new “if it is not duplicative or
cumulative,” and it is material “if there is a reasonable possibility that it would have changed
the outcome.”

Threet, 353 F.3d at 1191 (alterations omitted) (internal quotation marks
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omitted). Evidence is chronologically pertinent if it relates to the time period on or before the
ALJ’s decision. Id. If the Appeals Council fails to consider qualifying new evidence, the case
should be remanded so that the Appeals Council may reevaluate the ALJ’s decision in light of
the complete evidence. Id.
In this case, Plaintiff submitted evidence to the Appeals Council that had not been
before the ALJ. Some of the evidence pre-dated the ALJ’s May 9, 2016 decision, Tr. 908–66,
and some evidence post-dated it, Tr. 8–26. The Appeals Council accepted the earlier evidence,
considered it, and summarily determined that it “[did] not provide a basis for changing the
[ALJ’s unfavorable] decision.” Tr. 2. As to the later evidence, the Appeals Council found that
it was not chronologically pertinent and, therefore, did not consider it. Id. Plaintiff challenges
this determination and argues that the Appeals Council should have considered the later
evidence. [Doc. 17] at 11–14. There is no dispute that the evidence is new, but Defendant
argues that it is not chronologically pertinent or material. [Doc. 21] at 17–21.
Plaintiff argues that the reports by Clifford O. Morgan, Ph.D. are chronologically
pertinent for two reasons.4 [Doc. 17] at 11–14. First, Dr. Morgan evaluated Plaintiff on July 7,
2016, Tr. 16–22, only two months after the ALJ’s decision. The doctor’s three medical source
statements (“MSS”) are dated August 2, 2016, about three months after the ALJ’s decision.
Thus, Dr. Morgan’s reports are close in time to the ALJ’s decision and, most importantly,
“address[ed] the issues that were before ALJ Farris.” Id. at 13. For example, Dr. Morgan
corroborated the diagnoses of PTSD and depression. Compare Tr. 22 (Dr. Morgan’s report),
4

Plaintiff makes no argument as to the remainder of evidence that was rejected by the Appeals Council, Tr. 8–14.
See [Doc. 17] at 11–14; [Doc. 24] at 1–3. Accordingly, the Court does not address it.

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with Tr. 39 (ALJ’s findings). Second, Plaintiff points out that the MSSs “are retroactive to a
year before the date [on] which [Dr. Morgan] evaluated [Plaintiff, i.e.,] July 2015,” making
them explicitly relevant to the adjudication period. [Doc. 17] at 14.
The Commissioner argues that Dr. Morgan’s reports are not chronologically pertinent
for three reasons. [Doc. 21] at 18. First, Dr. Morgan’s reports post-date the ALJ’s decision.
Second, Dr. Morgan was retained by Plaintiff’s attorney. Third, there is no evidence that the
MSSs were retroactive by one year. Id. The Court is not persuaded by the Commissioner’s
arguments.
As to the Commissioner’s first argument, the Court disagrees that the date of the report
controls whether it is chronologically pertinent. The fact that Dr. Morgan’s reports are dated
after the ALJ’s decision does not mean ipso facto that they cannot be chronologically pertinent.
For example, in Padilla v. Colvin, 525 F. App’x 710, 713 (10th Cir. May 9, 2013)
(unpublished), the Tenth Circuit did not require new evidence to pre-date the ALJ’s decision to
be chronologically pertinent. Rather, the court focused on whether the new evidence was
pertinent to the issues that had been before the ALJ. See id. The court found, in pertinent part:
[T]he psychological report corroborates an anxiety diagnosis
reported by [the plaintiff’s] treating doctor, . . . prior to the
hearing, as well as [the plaintiff’s] hearing testimony.
Meanwhile, his intellectual functioning evaluation relates to and
augments [the treating doctor’s] earlier report that he could not
read or write. As to the audiological report, [the plaintiff]
identifies the fact that he testified about his hearing loss during
the hearing before the ALJ.

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Id.

In Chambers, 389 F.3d at 1142–44, the Tenth Circuit evaluated the “chronologically

pertinent” question in a similar way. The court held that medical records dated after the ALJ’s
decision (one day and two months respectively) were not too temporally remote to be
chronologically pertinent. Id. However, the court found that the records were immaterial
because they represented the first indication of a condition never-before presented to the ALJ.
Id. The court similarly held that a record dated five months after the ALJ’s decision was too
temporally remote where it suggested a condition that had never been presented before. Id.
In this case, Dr. Morgan’s reports are dated about two or three months after the ALJ’s
decision. Tr. 140–152. All of the reports address the functional limitations resulting from
Plaintiff’s mental health and drug addiction symptoms, which were clearly before the ALJ.
Indeed, the Commissioner does not argue otherwise. See [Doc. 21].
The Commissioner’s second and third arguments are equally unpersuasive. The Court
sees no relevance in whether Dr. Morgan was retained by Plaintiff’s counsel. Lastly, at least
one of Dr. Morgan’s MSSs is explicitly retroactive. Tr. 23 (“Please consider the patient’s
medical history and the chronicity of findings as from a year prior to initial visit to current
examination.”) (emphasis in MSS). For these reasons, the Court finds that Dr. Morgan’s reports
are chronologically pertinent.
Plaintiff argues that Dr. Morgan’s reports are material because there is a reasonable
probability that they would have changed the outcome. [Doc. 17] at 12–13. Dr. Morgan is an
acceptable medical source whose reports offer a retrospective opinion as to Plaintiff’s
impairments and resultant functional limitations.
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Importantly, Dr. Morgan opines that

Plaintiff’s functioning is more restrictive than the ALJ determined. Id. Defendant disagrees.
[Doc. 21] at 18–21.

She surveys the evidence of record and argues that Dr. Morgan’s

psychological evaluation “generally supports the ALJ’s [RFC assessment].” Id. at 18, see id.
18–20. Defendant concedes, however, that Dr. Morgan’s MSSs are more restrictive than the
ALJ’s RFC assessment. Id. at 20. She then offers reasons why an adjudicator may not adopt
Dr. Morgan’s view.

Id. at 20–21.

The standard before this Court is different, though.

Materiality is determined by whether there is a “reasonable probability” that the evidence would
have changed the outcome. There is at least a reasonable probability that Dr. Morgan’s reports
would have changed the outcome. The Court agrees with Plaintiff that Dr. Morgan’s reports are
material.
Because Dr. Morgan’s reports qualify as new, material, and chronologically pertinent,
the motion will be granted and the case remanded for further proceedings.
Conclusion
The Appeals Council erred in failing to consider certain evidence that post-dated the
ALJ’s decision. Tr. 16–26. Therefore, the Motion will be granted, and the case will be
remanded. The Court will not address the other errors alleged by Plaintiff at this time in order
to allow the Appeals Council the first opportunity to evaluate the ALJ’s decision in light of the
complete record. See Chambers, 389 F.3d at 1143.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 17] is

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GRANTED. The Commissioner’s final decision is reversed, and this case is remanded for
further proceedings in accordance with this opinion.
IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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