Luna-Casias v. Social Security Administration
Filing
25
MEMORANDUM OPINION AND ORDER by Magistrate Judge Laura Fashing granting 14 MOTION to Remand to Agency. (cda)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RITA LUNA CASIAS,
Plaintiff,
v.
1:18-cv-00537-LF
ANDREW M. SAUL, Commissioner
of the Social Security Administration,1
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Rita Luna Casias’s2 Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 14), which was fully
briefed on January 28, 2019. See Docs. 16, 21, 22. The parties consented to my entering final
judgment in this case. Docs. 5, 6, 7. Having carefully reviewed the parties’ submissions, the
administrative record, and the relevant law, I find that the Appeals Council erred by failing to
consider the additional evidence submitted by Ms. Casias. I therefore GRANT Ms. Casias’s
motion and remand this case to the Commissioner for further proceedings consistent with this
opinion.
I.
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision is supported by substantial evidence and whether the correct legal standards were
1
Andrew M. Saul became the Commissioner of the Social Security Administration on June 17,
2019, and is automatically substituted as the defendant in this action. FED. R. CIV. P. 25(d).
2
On the docket, plaintiff’s name is hyphenated in the caption and reads “Luna-Casias” The
caption on the complaint (and other documents), however, does not hyphenate Ms. Casias’s
name. In the briefing, plaintiff is referred to as “Ms. Casias.” Accordingly, the Court will refer
to plaintiff as “Ms. Casias.”
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). 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). “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 and brackets omitted).
In the typical case, the Court’s decision is based on a “meticulous” review of the entire
record, where it may neither reweigh the evidence nor substitute its judgment for that of the
Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). This case, however,
can be resolved on an error of law. The Court read and carefully considered all portions of the
record that bear on the legal arguments raised by Ms. Casias, but the Court did not review every
page of the medical documents in detail, as is usually the case. See Grogan v. Barnhart, 399
F.3d 1257, 1262 (10th Cir. 2005) (“[W]e 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.”). In this case, because “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).
II.
Applicable Law and Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or 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);
2
20 C.F.R. § 404.1505(a).
When considering a disability application, the Commissioner is required to use a fivestep sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140
(1987). At the first four steps of the evaluation process, the claimant must show: (1) the
claimant is not engaged in “substantial gainful activity”; (2) the claimant 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 (3) the impairment(s) either meet or equal one of the Listings3 of
presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past
relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv); Grogan, 399 F.3d at 1260–61. If the
claimant cannot show that his or her impairment meets or equals a Listing but proves that he or
she is unable to perform his or her “past relevant work,” the burden of proof shifts to the
Commissioner, at step five, to show that the claimant is able to perform other work in the
national economy, considering the claimant’s residual functional capacity (“RFC”), age,
education, and work experience. Id.
III.
Background and Procedural History
Ms. Casias was born in 1952, completed high school and a few basic college courses, and
lives with her husband. AR 41, 96.4 She has worked as a custodian, electronics assembler, and
an explosives truck driver. AR 45, 48, 81, 92–3, 212. Ms. Casias filed an application for
Disability Insurance Benefits (“DIB”) on February 18, 2015, alleging disability since February 9,
2015, due to complete knee replacement. AR 186–87, 211. The Social Security Administration
3
20 C.F.R. pt. 404, subpt. P, app. 1.
4
Document 11-1 is the sealed Administrative Record (“AR”). When citing to the record, the
Court cites to the AR’s internal pagination in the lower right-hand corner of each page, rather
than to the CM/ECF document number and page.
3
(“SSA”) denied her claim initially and on reconsideration. AR 96–114. Ms. Casias requested a
hearing before an ALJ. AR 127–28. On April 6, 2017, ALJ Michael Leppala held a hearing.
AR 33–95. ALJ Leppala issued his unfavorable decision on October 18, 2017. AR 18–32.
The ALJ found that Ms. Casias met the insured status requirements of the Social Security
Act through June 30, 2018. AR 23. At step one, the ALJ found that Ms. Casias had not engaged
in substantial, gainful activity since February 9, 2015, her alleged onset date. Id. At step two,
the ALJ found that Ms. Casias’s status post total right knee replacement was a severe
impairment. Id. The ALJ also found that her vertigo was a non-severe impairment and her
anxiety was a non-medically determinable impairment. AR 23–24. At step three, the ALJ found
that none of Ms. Casias’s impairments, alone or in combination, met or medically equaled a
Listing. AR 24. Because the ALJ found that none of the impairments met a Listing, the ALJ
assessed Ms. Casias’s RFC. AR 24–27. The ALJ found Ms. Casias had the RFC to
perform light work as defined in 20 CFR 404.1567(b) except the Claimant is
capable of occasionally lifting and/or carrying twenty pounds, frequently lifting
and/or carrying ten pounds, standing and/or walking for about six hours in an
eight-hour workday, and sitting for about six hours in an eight[-]hour workday, all
with normal breaks. The Claimant is further limited to occasionally climbing
ramps or stairs, never climbing ladders, ropes, or scaffolds, frequently balancing,
occasionally stooping, occasionally kneeling, occasionally crouching, and
occasionally crawling.
AR 24.
At step four, the ALJ concluded that Ms. Casias was capable of performing her past
relevant work as an electronic assembler as it was actually and generally performed. AR 27–28.
The ALJ thus found Ms. Casias not disabled at step four. AR 28.
Ms. Casias requested that the Appeals Council review the ALJ’s unfavorable decision.
AR 183–85. Ms. Casias submitted additional evidence to the Appeals Council. See AR 10–11.
The Appeals Council did not consider or “exhibit” the additional evidence and found it “does not
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relate to the period at issue.” AR 2. On April 10, 2016, the Appeals Council denied the request
for review. AR 1–5. Ms. Casias timely filed her appeal to this Court on June 11, 2018. Doc. 1.5
IV.
Ms. Casias’s Claims
Ms. Casias raises four arguments for reversing and remanding this case: (1) the Appeals
Council erred in determining that the additional evidence did not constitute new, material, and
chronologically pertinent evidence; (2) the ALJ erred by improperly rejecting the March 2017
opinion of her treating provider Anthony Reeve, M.D.; (3) the ALJ’s RFC is not supported by
substantial evidence; and (4) the ALJ’s finding at step four is not supported by substantial
evidence. Doc. 14 at 2, 10–23. I find that the Appeals Council erred by failing to consider
additional evidence submitted by Ms. Casias. Because the Appeals Council failed to consider
the new evidence Ms. Casias submitted, the case will be remanded so that the Appeals Council
may reevaluate the ALJ’s decision in light of the completed record.
V.
Analysis
The ALJ issued his unfavorable decision on October 18, 2017. See AR 12–31.
Thereafter, Ms. Casias submitted additional evidence and requested that the Appeals Council
consider the “Assessment of Ability to do Work-Related Activities (Physical & Non-Physical)
from Dr. Anthony Reeve, MD, dated 02/02/2018.” AR 9–11.6 The Appeals Council erred by
failing to consider the additional evidence submitted by Ms. Casias. The Appeals Council found
that because the ALJ decided Ms. Casias’s case though October 18, 2017, the additional
5
A claimant has 60 days to file an appeal. The 60 days begins running five days after the
decision is mailed. 20 C.F.R. § 404.981; see also AR 3.
6
The Appeals Council notes that the additional evidence consists of four pages. AR 2.
According to Ms. Casias, however, the additional evidence is only two pages. Doc. 14 at 11; AR
10–11. The Court presumes that the Appeal Council’s reference to “4 pages” is a typographical
error.
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evidence “does not relate to the period at issue. Therefore, it does not affect the decision about
whether you were disabled beginning on or before October 18, 2017.” AR 2. The Appeals
Council, thus, did not consider the additional evidence submitted by Ms. Casias. See Padilla v.
Colvin, 525 F. App’x 710, 712 (10th Cir. 2013) (unpublished) (“[T]he Appeals Council’s
dismissal of the additional evidence’s import on the grounds that it was not temporally relevant
indicates that it ultimately found the evidence did not qualify for consideration at all.”). Having
considered the parties’ arguments and the applicable law, I find that the ALJ erred in failing to
consider the new evidence submitted by Ms. Casias.
As an initial matter, the Commissioner contends that any argument that the Appeals
Council erred by failing to review or remand the case is not legally sound and that only the
ALJ’s decision is subject to judicial review. Doc. 16 at 7. The Commissioner’s argument is
misplaced. The Court is not determining whether the Appeals Council erred by failing to review
or remand the case, but whether the new evidence submitted by Ms. Casias qualifies for
consideration by the Appeals Council. 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).
The regulations require that the Appeals Council review a case if it “receives additional
evidence that is new, material, and relates to the period on or 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) (effective Jan. 17, 2017).7 Evidence is new
7
The requirement that the additional evidence create a “reasonable probability” of changing the
outcome of the decision was added to the regulations on January 17, 2017, with compliance
required by May 1, 2017. See 81 Fed. Reg. 90,987, 2016 WL 7242991 (Dec. 16, 2016) (Final
Rule).
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“if it is not duplicative or cumulative,” material “if there is a reasonable possibility that it would
have changed the outcome,” and it is “chronologically pertinent” when it “relates to the period
before the ALJ’s decision.” Threet, 353 F.3d at 1191 (alterations omitted) (internal quotation
marks omitted). The regulations that require a claimant to show a “reasonable probability that
the additional evidence would change the outcome of the decision” can be read as a heightened
materiality standard. See Bisbee v. Berryhill, No. 18-CV-0731 SMV, 2019 WL 1129459, at *3
n.5 (D.N.M. Mar. 12, 2019) (unpublished) (noting that the new regulations “heightens the
claimant’s burden to prove materiality: whereas the previous test required merely a reasonable
possibility of changing the outcome, now it requires a reasonable probability of changing the
outcome”).
If the evidence does not qualify for consideration by the Appeals Council, “it plays no
further role in judicial review of the Commissioner’s decision.” Chambers v. Barnhart, 389 F.3d
1139, 1142 (10th Cir. 2004). If the evidence does qualify and the Appeals Council considers it
in connection with its review, it becomes part of the record assessed by the district court in
evaluating the Commissioner’s denial of benefits. Id. If, however, 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 completed record. Id. For the reasons explained
below, the Court finds that Ms. Casias submitted evidence that was new, material, and
chronologically pertinent. Because the Appeals Council failed to consider the qualifying new
evidence, the case will be remanded so that the Appeals Council may reevaluate the ALJ’s
decision in light of the completed record.8
8
The Commissioner cites Vallejo v. Berryhill, 849 F.3d 951 (10th Cir. 2017), arguing that when
additional evidence is submitted to the Appeals Council, it becomes a part of the record and must
be considered by the Court under a substantial evidence evaluation. Doc. 16 at 7–8. The
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First, the additional evidence is new because it is not duplicative or cumulative. In
March 2017, Dr. Reeve filled out a form entitled “Treating Physician Medical Opinion of Ability
to do Work-Related Activities – Physical” in which he expressed his opinion about Ms. Casias’s
physical abilities (the “March 2017” opinion). AR 613–14. Dr. Reeve’s March 2017 opinion
was part of the record reviewed and weighed by the ALJ. AR 26. The additional evidence
submitted by Ms. Casias to the Appeals Council are forms entitled “Medical Assessment of
Ability to do Work-Related Activities (Physical),” and “Medical Assessment of Ability to do
Work-Related Activities (Non-Physical),” dated February 2, 2018 (collectively the “February
2018” opinion). AR 10–11. In the February 2018 opinion, Dr. Reeves offered his view of Ms.
Casias’s ability to perform both physical and non-physical work activities. Id.
The Commissioner contends that Dr. Reeve’s February 2018 opinion is not new but is
cumulative because it contains opinions about Ms. Casias’s physical abilities that are “almost
identical” to Dr. Reeve’s March 2017 opinion. Doc. 16 at 8. Although Dr. Reeve’s February
2018 opinion is similar to his prior opinion, there are differences. In the March 2017 opinion,
Dr. Reeve opined that Ms. Casias could sit for four to six hours, she had “No Useful Ability” to
crouch, and she could occasionally lift 5 pounds. AR 613. In his February 2018 opinion, Dr.
Reeve opined that Ms. Casias could sit less than 4 hours, occasionally crouch, and could
occasionally lift less than 5 pounds. AR 10. The opinions are otherwise identical with regard to
physical abilities. Compare AR 10 with AR 613.
Commissioner’s reliance on Vallejo is misplaced. In Vallejo, the Appeals Council considered
the new evidence, but denied review finding that the new evidence did not provide a basis
changing the ALJ’s decision. Vallejo, 849 F.3d at 953. In this case, the Appeals Council did not
consider the new evidence because it found the evidence did not qualify for consideration at all.
AR 2; Padilla, 525 F. App’x at 712. Consequently, remand, rather than a substantial evidence
evaluation, is appropriate.
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But beyond Ms. Casias’s physical abilities, Dr. Reeve offered opinions in February 2018
that he did not express in the March 2017 opinion. His February 2018 opinion includes
“Impairment & Symptoms & Manifestations,” which states that Ms. Casias suffers from a painproducing impairment, that the pain is severe, and that the pain causes sleep disturbances and the
need to rest or lie down at regular intervals. AR 11. “In determining whether an individual is
disabled, [the SSA will] consider all of the individual’s symptoms, including pain, and the extent
to which the symptoms can reasonably be accepted as consistent with the objective medical and
other evidence in the individual’s record.” SSR 16-3P, 2017 WL 5180304, at *2. The February
2018 opinion also included “Limitations Affecting Non-Physical Work Activities,” in which Dr.
Reeve opined that Ms. Casias had moderate limitations in
Maintain[ing] attention and concentration for extended periods (i.e. 2-hour
segments);
Perform[ing] activities within a schedule;
Maintain[ing] regular attendance and be[ing] punctual within customary
tolerance;
Maintain[ing] physical effort for long periods without a need to decrease activity
or pace, or to rest intermittently;
Sustain[ing] an ordinary routine without special supervision; [and]
Complet[ing] a normal workday and workweek without interruptions form pain or
fatigue[-]based symptoms and to perform at a consistent pace without [an]
unreasonable number and length of rest periods.
AR 11.
“A moderate impairment is not the same as no impairment at all.” Jaramillo v. Colvin,
576 F. App’x 870, 876 (10th Cir. 2014) (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.
2007)) (internal quotations and brackets omitted). Almost all the abilities listed in the
“Limitations Affecting Non-Physical Work Activities” are abilities needed for any job. Social
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Security Program Operations Manual System (“POMS”) D1 25020.010(B)(2)(a),
http://policy.ssa.gov/poms.nsf/lnx/0425020010. Ms. Casias’s limitations from pain symptoms
and the non-physical moderate impairments found by Dr. Reeve in February 2018 are not
duplicative or cumulative, but are new evidence.
Second, the evidence is material because there is a reasonable probability that the
additional evidence would change the outcome of the decision. Dr. Reeve’s February 2018
opinion includes moderate impairments not accounted for in the RFC, significantly undermining
the requirement that the RFC be supported by substantial evidence. Indeed, the RFC does not
account for any non-physical limitations. See AR 24. The February 2018 opinion corroborates
Ms. Casias’s allegations of pain, which the ALJ discounted. See AR 25–26 (“the Claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record . . . .”). Also, Dr.
Reeve’s February 2018 opinion, if adopted, places limitations on Ms. Casias’s ability to do nonphysical, work-related activities that necessitates a more restrictive RFC than the ALJ assessed
that could reasonably lead to the Commissioner finding Ms. Casias disabled. Because there is a
reasonable probability that the additional evidence would change the outcome of the decision,
the additional evidence is material.
Third, the additional evidence is chronologically pertinent because it relates to a time
period before the ALJ’s decision. The Commissioner argues that Dr. Reeve’s February 2018
opinion is not chronologically pertinent because “it was written four months after the ALJ’s
October 2017 decision.” Doc. 16 at 8. This argument is without merit. Although it is
undisputed that Dr. Reeve’s February 2018 opinion is dated four months after the ALJ’s
decision, the opinion relates to the time period at issue. In Padilla v. Colvin, the Tenth Circuit
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provided guidance on what constitutes “chronologically pertinent” evidence. 525 F. App’x at
712 n.1. The court did not require that evidence newly submitted to the Appeals Council
necessarily pre-date the ALJ’s decision to qualify as chronologically pertinent. Id. Rather, the
court focused on whether the new evidence was pertinent to the issues that had been before the
ALJ. Id.
In this case, the new evidence was pertinent to the issues that had been before the ALJ.
Ms. Casias testified that she suffered pain because of her knee replacement. AR 59–60, 66–69.
Additionally, the moderate limitations found by Dr. Reeve in his February 2018 opinion would
affect Ms. Casias’s non-physical abilities to do any job. Thus, the new evidence is pertinent to
the issues that had been before the ALJ.
Additionally, the date of the opinion is not determinative if the medical assessment is
retrospective. See Rivera v. Colvin, No. 15CV593 WPL, 2016 WL 9819512, at *5 (D.N.M. Oct.
18, 2016) (finding the introductory sentence of the Medical Assessment of Ability to do WorkRelated Activities form that requested the medical provider to “consider patient’s medical history
and the chronicity of finds as from 2011 to current examination” required a retrospective
assessment); see also Chavez v. Berryhill, No. 16-CV-1253 SMV, 2017 WL 5157755, at *5
(D.N.M. Nov. 6, 2017) (finding the medical opinion chronologically pertinent in part because at
least one form was “explicitly retroactive,” requesting that the doctor “consider the patient’s
medical history and chronicity of findings as from a year prior to initial visit to current
examination.”); Martinez v. Colvin, No. CV 14-1134 KK, 2016 WL 10587983, at *10 (D.N.M.
Mar. 21, 2016) (finding chronicity where the medical source statements made a direct reference
to the time period adjudicated by the ALJ and the doctor’s treating source relationship correlated
with the time period referenced in the medical source statements). Dr. Reeve’s February 2018
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opinion is retrospective. Ms. Casias’s alleged onset date was February 2, 2015. AR 21, 23. A
claimant must establish that he or 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. 20 C.F.R.
§ 404.1520(a)(4)(iii). Thus, the time period the ALJ adjudicated in this case was between
February 2, 2015 and February 2, 2016. The introductory sentences of the February 2018
medical assessments include the statement: “Please consider the patient’s medical history and
the chronicity of findings as from 2015 to current examination,” AR 10, 11, indicating explicitly
that the opinion is retroactive to 2015. Thus, the opinion specifically refers to the time period
adjudicated by the ALJ. Moreover, Dr. Reeve’s treating source relationship with Ms. Casias
precisely correlates with the time period referenced in the medical assessments. AR 287–88,
476, 486 (establishing treatment by Dr. Reeve between April 7, 2015 and September 10, 2015).
Accordingly, Dr. Reeve’s February 2018 opinion is retrospective, and the date it was created is
not relevant.
Because Dr. Reeve’s February 2018 opinion was pertinent to the issues that had been
before the ALJ and retrospective to the relevant time period, it is chronologically pertinent.
VI.
Conclusion
The evidence Ms. Casias submitted to the Appeals Council is new, material, and
chronologically pertinent. Thus, the newly submitted evidence qualifies for consideration by the
Appeals Council. The Appeals Council erred by failing to consider the additional qualifying
evidence Ms. Casias submitted. The Court remands this case so that the Appeals Council may
reevaluate the ALJ’s decision in light of the completed record.
IT IS THEREFORE ORDERED that plaintiff Rita Luna-Casias’s Motion to Reverse and
Remand for a Rehearing with Supporting Memorandum (Doc. 14) is GRANTED.
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IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED, and
this case is REMANDED for further proceedings in accordance with this opinion.
________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent
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