Hirt v. Commissioner Social Security Administration

Filing 36

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter pursuant to sentence four of 42 U.S.C. § 405(g). IT IS SO ORDERED. Signed on 3/6/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PATRICK KEITH HIRT,
Plaintiff,

3:16-cv-02143-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

PATRICK KEITH HIRT
Deer Ridge Correctional Institution
3920 East Ashwood Road
Madras, OR 97741
Plaintiff, Pro se
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
1

On January 23, 2017, Nancy A. Berryhill was appointed the
Acting Commissioner of Social Security and pursuant to Federal
Rule of Civil Procedure 25(d) is substituted as the Defendant in
this action.
1 - OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
MARTHA A. BODEN
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Patrick Keith Hirt seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff previously filed for SSI and was found disabled by
an Administrative Law Judge on June 23, 2000.

Tr. 74-85.2

Plaintiff’s benefits were terminated on July 1, 2004, when he was
convicted of a felony and incarcerated.

Tr. 90.

Plaintiff protectively filed this application for SSI on

2

Citations to the official transcript of record filed by
the Commissioner on May 25, 2017, are referred to as "Tr."
2 - OPINION AND ORDER

January 16, 2013.

Tr. 19.

Plaintiff initially alleged a

disability onset date of January 16, 2013, in his application.
Tr. 19.

At the hearing on April 13, 2015, Plaintiff amended his

alleged disability onset date to June 13, 2013.

Tr. 19, 42.

Plaintiff’s application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a hearing on
April 13, 2015.
hearing.

Tr. 19, 36-69.

Plaintiff testified at the

Although Plaintiff was represented by an attorney at

the hearing, he is not represented by counsel in this action.

A

Vocational Expert (VE) was present at the hearing, but he did not
testify.
On August 7, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 19-30.

On September 8, 2015, Plaintiff

requested review by the Appeals Council.

Tr. 14.

On August 22,

2016, the Appeals Council denied Plaintiff’s request to review
the ALJ’s decision, and the ALJ’s decision became the final
decision of the Commissioner.

Tr. 1-4.

See Sims v. Apfel, 530

U.S. 103, 106-07 (2000).
On November 7, 2016, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s final decision.

3 - OPINION AND ORDER

BACKGROUND
Plaintiff was born on July 4, 1966.
48 years old at the time of the hearing.
education.

Tr. 28.

Tr. 28.

Plaintiff was

Plaintiff has limited

The ALJ found Plaintiff did not have any

past relevant work experience.

Tr. 28.

Plaintiff alleges disability due to anxiety disorder, mood
disorder, irritable bowel syndrome, depression, personality
disorder, and Hepatitis C.

Tr. 87.

Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 21-29.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110

To meet this burden a claimant must demonstrate

his inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months.”
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
4 - OPINION AND ORDER

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).

See also Brewes v. Comm’r of Soc. Sec.

Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial

evidence is “relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.”

Molina, 674 F.3d.

at 1110-11 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009)).

It is more than a mere scintilla

[of evidence] but less than a preponderance.

Id. (citing

Valentine, 574 F.3d at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
5 - OPINION AND ORDER

Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
activity (SGA).

20 C.F.R. § 416.920(a)(4)(I).

See also Keyser

v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
§ 416.920(a)(4)(ii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
6 - OPINION AND ORDER

physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 416.920(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines (or the
grids) set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

7 - OPINION AND ORDER

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since January 16, 2013, his
application date.

Tr. 21.

At Step Two the ALJ found Plaintiff has the severe
impairments of depressive disorder; borderline personality
disorder; personality disorder, NOS with antisocial, “avoidant,”
and self-defeating traits; and bipolar affective disorder.
Tr. 21.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 22-24.

The ALJ found Plaintiff has the RFC to

perform a full range of work “at all exertional levels with
nonexertional limitations.”

The ALJ found Plaintiff is able to

perform complex or detailed tasks for only one-third of a work
day; can have occasional changes in daily work tasks or work
settings; and is limited to minimal (no more than 15% of a work
day) verbal interactions with coworkers, supervisors, or the
general public.

Tr. 23.

At Step Four the ALJ concluded Plaintiff’s transferability
of job skills is not an issue because Plaintiff does not have any

8 - OPINION AND ORDER

past relevant work.

Tr. 28.

At Step Five the ALJ found Plaintiff could perform other
work in the national economy based on Plaintiff’s age, education,
work experience, and RFC.

Tr. 28-29.

The ALJ cited the

following examples of jobs identified by the VE:
cleaner, stores laborer, marker, and janitor.

housekeeping

Tr. 29.

Thus, the

ALJ concluded Plaintiff is not disabled and, therefore, is not
entitled to benefits.

Tr. 29-30.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to
develop the record fully, (2) found Plaintiff’s testimony not
credible, (3) failed to properly evaluate the opinions of
Plaintiff’s treatment providers, and (4) improperly relied on VE
testimony at Step Five.

Plaintiff also contends the Appeals

Council improperly denied his request for review of the ALJ’s
decision.
The Commissioner contends the record supports the ALJ’s
determination in all respects, and, therefore, the Court should
affirm the Commissioner’s decision.
I.

The ALJ did not fail to develop the record fully.
Plaintiff contends the ALJ erred when he denied Plaintiff’s

claim based on an incomplete record.

Plaintiff contends the ALJ

failed to develop the record adequately by specifically failing
9 - OPINION AND ORDER

to obtain medical records that “span the bulk of the claim period
involving multiple healthcare providers.”
The Commissioner, in turn, contends the ALJ fulfilled his
duty to develop the record when he held the record open for
Plaintiff to submit further evidence following the hearing and
subsequently considered the additional evidence submitted by
Plaintiff.
A.

Standards
The ALJ has an independent duty to develop the record

fully and fairly regardless whether the claimant is represented
by counsel.
1996).

Smolen v. Chater, 80 F.3d 1273, 1283 (9th Cir.

The ALJ’s duty to develop the record fully is heightened,

however, when a claimant is not represented by counsel.
v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003).

Celeya

The ALJ’s duty

to develop the record is only triggered when “there is ambiguous
evidence or when the record is inadequate to allow for proper
evaluation of the evidence.”

Mayes v. Massanari, 276 F.3d 453,

460 (9th Cir. 2001).

See also McLeod v. Astrue, 640 F.3d 881,

885 (9th Cir. 2010).

When evidence requested by the ALJ is made

part of the record, the ALJ does not have a duty to inquire
further and the ALJ is deemed to have conducted a “full and fair
hearing” as required.
Cir. 2012).

10 - OPINION AND ORDER

Chaudhry v. Astrue, 688 F.3d 661, 669 (9th

B.

Analysis
At the hearing Plaintiff’s attorney at the time advised

the ALJ that there were additional records from Piyush Tiwari,
M.D., a psychiatrist who treated Plaintiff on six occasions at
the Mental Health Kokua Clinic.

Tr. 39-40.

record open for receipt of this evidence.

The ALJ held the

Some time after the

hearing Plaintiff submitted treatment notes from Dr. Tiwari for
the period from October 2014 through January 2015.

Tr. 510-21.

The ALJ considered those records when he made his disability
determination.

Tr. 26.

The record also contains the following:

Montana State

Prison records from December 2010 to January 2013 (Tr. 320-42); a
psychological consultative examination by Mark Mozer, Ph.D.,
dated April 2013 (Tr. 343-52); records from Aloha House Mental
Health Clinic for treatment by Royal Randolph, Jr., M.D., on
June 13, 2013 (Tr. 353-56); records from Malama I Ke Ola Health
Center dated June to October 2013 (Tr. 357-63, 378-437); a
psychological evaluation by Kathleen M. McNamara, Ph.D., dated
February 2014 (Tr. 366-71); a consultative examination report by
Antoine Cazin, M.D., dated March 2014 (Tr. 372-77); and treatment
notes from Hilo Bay Psychotherapy Clinic dated October 2014 to
January 2015 (Tr. 438-509).
Plaintiff alleges a disability onset date of
June 13, 2013, and it appears the ALJ had records for the period

11 - OPINION AND ORDER

from October 2010 through January 2015.

The record reflects the

ALJ considered these records when he made his decision,
including, as noted, the records submitted by Plaintiff during
the “open period” after the hearing.
On this record the Court concludes the ALJ fulfilled
his duty to develop the record fully and to conduct a full and
fair hearing.
II.

The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff contends the ALJ erred when he found Plaintiff’s

testimony was not fully credible based on inconsistencies between
Plaintiff's activities of daily living and his alleged
disabilities.
The Commissioner contends the ALJ provided clear and
convincing reasons for finding Plaintiff’s testimony not entirely
credible.
A.

Standards
In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment and must show the impairment or combination of
impairments could reasonably be expected to produce some degree
of symptom.

Cotton, 799 F.2d 1403, 1407 (9th Cir. 1986).

The

claimant, however, need not produce objective medical evidence of

12 - OPINION AND ORDER

the actual symptoms or their severity.

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is
not any affirmative evidence of malingering, the ALJ can reject
the claimant's testimony only if he provides clear and convincing
reasons for doing so.

Parra v. Astrue, 481 F.3d 742, 750 (9th

Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
1995)).

General assertions that the claimant's testimony is not

credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."
B.

Id. (quoting Lester, 81 F.3d at 834).

Analysis
The ALJ concluded Plaintiff’s testimony was not

entirely credible based on inconsistencies in his testimony.
Tr. 24-28.
At the hearing Plaintiff testified his mental health
was “too unstable,” he went through “serious ups and downs,” his
life was “total chaos,” his days were “dark and dismal,” he
didn’t “do anything,” and he was “just withdrawn.”

Tr. 44, 50.

The ALJ noted, however, that Plaintiff also testified he spends
10 hours a week helping his mother by shopping and driving her to
the store and appointments; tried to volunteer at a visitor’s
center; and obtained a driver’s license, which, according to
Plaintiff, was “a huge undertaking”.

Tr. 49, 52-53.

The ALJ also noted Plaintiff’s testimony conflicted
13 - OPINION AND ORDER

with the objective observations of treating and examining
doctors.

Tr. 24-28.

For example, on June 13, 2013,

Dr. Randolph, a treating physician, found Plaintiff appeared only
“mildly depressed,” demonstrated “good” judgment, and was
“pleasant and cooperative.”

Tr. 25, 353-55.

On February 14,

2014, Dr. McNamara, an examining psychologist, noted Plaintiff
did not have any “restrictions on activities of daily living,”
was “using resources in social services and agencies” to meet his
needs, and his symptoms were “adequately controlled for work at
the [indicated] residual functional capacity.”

Tr. 25, 366-70.

On this record the Court concludes the ALJ did not err
when he discounted Plaintiff’s testimony based on inconsistencies
between Plaintiff’s daily activities and his alleged disabilities
because the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.
III. The ALJ did not err in his evaluation of Dr. Tiwari’s
opinion.
Plaintiff contends the ALJ erred when he gave more weight to
the medical opinions of state-agency consultants than to
Dr. Tiwari, Plaintiff’s treating physician.
The Commissioner, however, contends the ALJ properly
evaluated Dr. Tiwari’s opinion.
A.

Standards
The opinion of a treating physician is generally

accorded greater weight than the opinion of an examining
14 - OPINION AND ORDER

physician, and the opinion of an examining physician is accorded
greater weight than the opinion of a reviewing physician.
v. Colvin, 763

F.3d 1154, 1160 (9th Cir. 2014).

Ghanim

To reject an

uncontradicted opinion of a treating physician, the ALJ must
provide “clear and convincing reasons that are supported by
substantial evidence.”
(9th Cir. 2005).

Bayliss v. Barnhart, 427 F.3d 1211, 1216

To reject the a contradicted medical opinion,

the ALJ must articulate “specific, legitimate reasons” that are
based on substantial evidence in the record.

Valentine v. Comm’r

of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009).
Sufficient reasons for rejecting an examining physician's opinion
may include the physician’s reliance on a claimant's discredited
subjective complaints, inconsistency with the medical records,
inconsistency with a claimant's testimony, and inconsistency with
a claimant's daily activities.

Tommasetti

v. Astrue, 533 F.3d

1035, 1040 (9th Cir. 2008).
Although a treating physician’s opinion is
generally afforded the greatest weight, it is not binding on an
ALJ with respect to the existence of an impairment or the
determination of disability.

Tonapetyan v. Halter, 242 f.3d

1144, 1148 (9th Cir. 2001).

“When confronted with conflicting

medical opinions, an ALJ need not accept a treating physician’s
opinion that is conclusory and brief and unsupported by the
clinical findings.”

Id. at 1149.

15 - OPINION AND ORDER

An ALJ may discount a doctor’s

opinion to the extent that it is unreasonable based on other
evidence in the record and incompatible with a claimant’s level
of activities.

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d

595, 601-02 (9th Cir. 1999).
B.

Analysis
Dr. Tiwari diagnosed Plaintiff with severe recurrent

major depression, generalized anxiety disorder, cannabis
dependence, and alcohol abuse.

Tr. 513.

The ALJ generally

accepted Dr. Tiwari’s opinion and found Plaintiff has the severe
impairments of depressive disorder, borderline personality
disorder, and bipolar affective disorder.

The ALJ also found

such impairments significantly limit Plaintiff’s ability to
function.

Tr. 21.
Based on Plaintiff’s mental impairments the ALJ found

Plaintiff has moderate restrictions as to activities of daily
living; marked difficulties with social functioning; and moderate
limitations in concentration, persistence, and pace.

Tr. 22-23.

Accordingly, the ALJ concluded Plaintiff is limited to performing
only occasional complex or detailed tasks; occasional changes in
work tasks and settings; and minimal verbal interaction with
coworkers, supervisors, and the public.

Tr. 23.

In contrast,

the ALJ gave only “some weight” to the opinions of the stateagency examining and consulting physicians.

Tr. 27-28.

For

example, on April 24, 2013, Mark Mozer, Ph.D., a consulting

16 - OPINION AND ORDER

physician, concluded Plaintiff “was capable of substantial
gainful activity, if motivated.”

Tr. 346.

The ALJ gave

Dr. Mozer’s opinion only “some weight” and concluded Dr. Mozer’s
opinion was consistent with the ALJ’s evaluation of Plaintiff’s
RFC.

Tr. 27.

On February 15, 2014, Kathleen M. McNamara, Ph.D.,

another examining physician, concluded Plaintiff can understand
and carry out instructions, but he would have problems with
coworkers and supervisors due to the nature of his personality
disorder.

Tr. 370.

The ALJ also gave “some weight” to

Dr. McNamara’s opinion and concluded his evaluation of
Plaintiff’s RFC accommodated her concerns.

Tr. 27-28.

On this record the Court concludes the ALJ did not err
in his assessment of Dr. Tiwari’s opinion because the ALJ
included in his evaluation of Plaintiff’s RFC the limitations
that were identified in Dr. Tiwari’s opinion.
IV.

The ALJ did not err when he relied on the testimony of the
VE at Step Five.
Plaintiff contends the ALJ erred at Step Five when he

adopted the opinion of the VE that Plaintiff could perform other
occupations that Plaintiff contends he is restricted from doing
because of his status as a registered sex offender.
The Commissioner, however, contends the ALJ did not err when
he accepted the VE’s conclusion that Plaintiff could perform the
occupations of housekeeping cleaner, stores laborer, marker, and
janitor.

Moreover, the Commissioner asserts the ALJ is not

17 - OPINION AND ORDER

required to consider factors such as Plaintiff’s status as a
registered sex offender that could affect Plaintiff’s ultimate
employability.
A.

Standards
As noted, at Step Five the ALJ must determine whether

the claimant is able to do any other work that exists in the
national economy.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

The ALJ has the burden to show a

significant number of jobs exist in the national economy that the
claimant can perform.

Lockwood v. Comm’r Soc. Sec. Admin., 616

F.3d 1068, 1071 (9th Cir. 2010).

The ALJ may satisfy this burden

through the testimony of a VE or by reference to the MedicalVocational Guidelines (or the grids) set forth in the regulations
at 20 C.F.R. part 404, subpart P, appendix 2.
this burden, the claimant is not disabled.

If the ALJ meets

20 C.F.R.

§ 416.920(g)(1).
B.

Analysis
As noted, the ALJ found Plaintiff has the RFC to

perform a full range of work with certain nonexertional
limitations.

Tr. 23.

Although a VE was present at the hearing, he did not
testify.

After the hearing record was closed, the ALJ sent a

Vocational Interrogatory Form to VE Lanelle Yamane.

In the Form

the ALJ posed his hypothetical to the VE, which was consistent
18 - OPINION AND ORDER

with the ALJ’s assessment of Plaintiff’s RFC.

On June 24, 2015,

the VE completed the Form in which the VE indicated Plaintiff
could perform his 1999 job as a log peeler in addition to the
occupations of housekeeping cleaner, stores laborer, marker, and
janitor.

Tr. 295-99.
The ALJ concluded Plaintiff did not have any past

relevant work, and, therefore, he did not adopt the VE’s opinion
that Plaintiff could perform the job of log peeler.

Tr. 28.

The

ALJ, however, adopted the VE’s opinion that Plaintiff could
perform the other identified occupations.

Tr. 29.

As noted, at Step Five the ALJ carries the burden to
establish Plaintiff can perform other work that exists in
significant numbers in the national economy after “taking into
consideration the claimant’s residual function capacity, age,
education, and work experience.”

20 C.F.R. § 416.966©).

The

regulations, however, do not take into consideration other
factors that might affect Plaintiff’s employability such as
criminal history or sex-offender status:
We will determine that you are not disabled if your
residual functional capacity and vocational abilities
make it possible for you to do work which exists in the
national economy, but you remain unemployed because
. . . (7) you would not actually be hired to do work
you could otherwise do.
20 C.F.R. 416.966(c)(7).
On this record the Court concludes the ALJ did not err
at Step Five when he relied on the VE’s opinion, which was based
19 - OPINION AND ORDER

on the ALJ's hypothetical and included the limitations set out in
the ALJ's assessment of Plaintiff’s RFC.
V.

“New evidence” submitted to the Appeals Council did not
invalidate the ALJ’s decision.
Plaintiff contends the Appeals Council erred when it failed

to remand this case to the ALJ for consideration of the new
evidence submitted after the ALJ’s decision.
The Commissioner, in response, contends the evidence postdated the relevant period, and, therefore, the Appeals Council
did not err when it denied review of the ALJ's decision.
A.

Standards
20 C.F.R. § 416.14170(a)(5) provides the Appeals

Council must 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.”
B.

Analysis
The evidence that Plaintiff submitted to the Appeals

Council was a Mental Health Assessment from Jackson County Mental
Health dated September 2015, which was after the date of the
ALJ’s decision.

Tr. 2.3

The Appeals Council noted the new

information “was about a later time” and “does not affect the
decision about whether [Plaintiff] was disabled on or before

3

Although the Appeals Council’s letter references this
report, the actual report is not a part of the Administrative
Record filed by the Commissioner.
20 - OPINION AND ORDER

August 7, 2015.”

Tr. 2.

Accordingly, the Court concludes the evidence submitted
by Plaintiff to the Appeals Council after the ALJ’s decision is
not relevant to this matter, and the Appeals Council’s denial of
review, therefore, is not appealable to this Court.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 6th day of March, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

21 - OPINION AND ORDER