Salazar v. Colvin
Filing
17
MEMORANDUM DECISION AND ORDER - The court Affirms the Commissioner's decision. Signed by Magistrate Judge Dustin B. Pead on 2/22/2018. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
SKYLARE WREN SALAZAR,
Plaintiff,
v.
MEMORANDUM DECISION
Case No. 1:16-cv-00136- DBP
Magistrate Judge Dustin B. Pead
NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
The parties consented to this court’s jurisdiction under 28 U.S.C. 636(c). (ECF No. 12).
Currently pending before the court is Plaintiff Skylare Wren Salazar’s (“Plaintiff”) appeal of the
Commissioner of Social Security’s (“Commissioner”) decision denying Plaintiff’s claim for
Disability Insurance Benefits and Supplemental Security Income. 42 U.S.C. §§ 401–33. Plaintiff
filed his opening brief. (ECF No. 15). The Commissioner filed her opposition brief. (ECF No.
16). Plaintiff did not file any reply and the deadline for doing so has now passed. (See ECF No.
14). The parties did not request oral argument. Having considered the parties’ briefs, the
administrative record, and the relevant law, this court AFFIRMS the Commissioner’s decision.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for benefits on August 27, 2009, alleging an onset date of
February 8, 2009. (Tr. 133–36). The application was denied initially on January 26, 2010, and
upon reconsideration on February 10, 2010. (Tr. 66–71). In 2011 Administrative Law Judge
Donald R. Jensen denied Plaintiff’s application, but that decision was subsequently appealed to
the District of Utah and then remanded to the Commissioner. (Tr. 12–23, 587–96). On July 27,
2015, ALJ Jensen issued another decision finding Plaintiff not disabled. (Tr. 509–22). Plaintiff
appealed this second denial to Social Security’s Appeals Council. (Tr. 680–81). The Appeals
Council declined to exercise jurisdiction. (Tr. 496–99). Plaintiff then filed the present suit.
II.
FACTUAL BACKGROUND
Plaintiff was born in 1985. (Tr. 133). Plaintiff completed high school. (Tr. 521). Plaintiff
has past work experience as a hand packager. (Tr. 171, 520). Plaintiff claims he became disabled
in February 2009, due to depression, bipolar disorder, and “comprehension inability.” (Tr. 170).
Plaintiff has a history of mental health treatment dating back to 2004. (See Tr. 238–65).
III.
STATEMENT OF RELEVANT LAW
A. Definition of Disability Under the Act
The Act states that an individual is disabled “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 . . . .” 42 U.S.C. § 423(d)(2)(A). The
disabling impairment must last, or be expected to last, for at least twelve consecutive months.
Id.; Barnhart v. Walton, 535 U.S. 212, 214–15 (2002).
B. Process for Determining Disability Under the Act
To determine whether a claimant is disabled, Social Security regulations set forth a
five-step sequential evaluation process. The adjudicator considers whether a claimant: (1)
engaged in substantial gainful activity during the alleged disability period, (2) had a severe
impairment, (3) had a condition that met or medically equaled the severity of a listed
impairment, (4) could return to his past relevant work, and if not (5) could perform other work in
the national economy. 20 C.F.R. § 404.1520(a)(4). If a decision regarding the claimant’s
2
disability can be reached at any step in the sequential evaluation process, further evaluation is
unnecessary. Id.
C. Standard of Review
A district court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings, and whether the correct legal
standards were applied. Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). Substantial
evidence means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. The court may neither reweigh the evidence nor substitute its
judgment for that of the ALJ. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Where the
evidence as a whole can support the agency’s decision or an award of benefits, the court must
affirm the agency’s decision. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
IV.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff had not been engaged in substantial gainful
activity since the alleged onset date, February 8, 2009. (Tr. 511.) At step two, the ALJ found that
Plaintiff suffered from five severe impairments: bipolar disorder; generalized anxiety disorder;
panic disorder; dysthymic disorder; and borderline IQ. (Id.) At step three, the ALJ found Plaintiff
did not meet any listed impairment. (Tr. 512.) At step four, the ALJ found Plaintiff incapable of
performing his past relevant work as a hand packager. (Tr. 520.) The ALJ found at step five that
Plaintiff could make an adjustment to perform jobs that exist in significant numbers in the
national economy. (Tr. at 521.)
V.
DISCUSSION
Plaintiff raises a single alleged error on appeal. Plaintiff contends the Appeals Council
should have remanded this case to the ALJ based on Social Security Ruling 16-3p issued on
3
March 16, 2016. (ECF No. 15 at 2). The ruling was issued approximately eight months after the
ALJ’s decision, but four months prior to the Appeals Council’s decision declining to review the
ALJ’s decision. (Id. at 2–3). Plaintiff contends the ALJ’s analysis of certain lay-witness
statements is flawed under SSR 16-3p. (Id. at 4–6). The lay witnesses at issue are Plaintiff’s
parents and two former employers. (See id.)
The Commissioner argues the ALJ’s decision should be affirmed because SSR 16-3p
does not govern this case. The Commissioner notes that SSR 16-3p was issued after the ALJ
decided this case and contends the Ruling does not apply retroactively. (ECF No. 16 at 6–7). The
Commissioner suggests the ALJ’s decision comports with SSR 16-3p’s predecessor, SSR 96-7p.
(Id. at 7). Next, she argues in the alternative that neither SSR 16-3p nor its predecessor applies to
the ALJ’s analysis of lay witness testimony because SSR 06-3p governs review of lay witness
testimony. (Id.)
a. The Commissioner’s decision will be affirmed because Plaintiff has not
identified any reversible error.
Plaintiff does not show the ALJ applied the incorrect standard or otherwise committed
reversible error because SSR 16-3p applies only prospectively. Additionally, Plaintiff has not
shown the ALJ misapplied any applicable standard.
1. SSR 16-3p does not apply because that Ruling applies only prospectively
beginning on March 28, 2016
The court finds SSR 16-3p does not apply retroactively to the ALJ’s decision and
Plaintiff does not suggest the ALJ failed to comply with SSR 96-7p. “Retroactivity is not favored
in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). Accordingly,
“congressional enactments and administrative rules will not be construed to have retroactive
effect unless their language requires this result.” Id.; see also De Niz Robles v. Lynch, 803 F.3d
1165, 1173 (10th Cir. 2015) (noting that certain administrative adjudicatory proceedings likewise
4
enjoy a presumption against retroactivity). The Commissioner notes that SSR 16-3p’s language
expressly indicates the Ruling has only prospective effect because the Ruling, issued March 16,
2016, indicated that it did not go into effect until nearly two weeks later on March 28, 2016. (See
ECF No. 16 at 10) (citing 2016 WL 1237954). Plaintiff offers no contrary rule or argument.
Instead, he simply presumes SSR 16-3p has retroactive effect. Plaintiff provides no legal support
for this assumption. Likewise, Plaintiff did not submit any reply brief. Accordingly, the court has
before it only the uncontested argument of the Commissioner and the authorities cited in her
brief. Based on that record, the court concludes the Commissioner is correct; SSR 16-3p should
not be applied retroactively because the Ruling expressly indicates an effective date that falls
nearly two weeks after its date of issue.
Also, the Commissioner contends the ALJ’s analysis met the strictures of SSR 16-3p’s
predecessor, SSR 96-7p. (See ECF No. 16 at 10–11). As the Commissioner points out, the ALJ
complied with SSR 96-7p because he provided adequate reasons, supported by the record, for
discounting Plaintiff’s complaints. 1 (Id.) (citing Tr. 514–517). These reasons were all related to
Plaintiff’s treatment history and daily activities. This analysis comports with SSR 96-7p. (See
id.) (citing Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995)). Plaintiff does not contend
otherwise. In fact, Plaintiff does not appear to mention the ALJ’s treatment of Plaintiff’s
complaints regarding symptoms. Instead, Plaintiff’s argument centers on the ALJ’s analysis of
certain lay opinions, addressed below. Accordingly, the ALJ’s decision will be affirmed because
Plaintiff has not identified any reversible error.
1
Likewise, the Commissioner notes that the underlying regulation that both SSR 16-3p and 967p interpret, 20 C.F.R. § 404.1529, remains unchanged and the ALJ’s analysis comports with
even SSR 16-3p. (See ECF No. 16 at 10). The court finds it need not reach this argument.
5
2. SSR 06-3p, rather than 16-3p or even 96-7p, governs analysis of lay witness
testimony
Alternatively, the ALJ’s decision will be affirmed because he properly complied with
SSR 06-3p, which governs analysis of non-medical opinion evidence. The commissioner
correctly asserts that SSR 06-3p sets forth the standard for evaluating opinions from non-medical
sources, not SSR 16-3p or even SSR 96-7p, which both address how an ALJ will address certain
statements made by a claimant. Compare SSR 06-3p, 2006 WL 2329939 at *1 (“clarify[ing] how
[the Commissioner] consider[s] opinions from sources who are not ‘acceptable medical
sources’” including “relatives . . . and employers.”); with SSR 16-3p, 2016 WL 1119029 at *1–2
(“provid[ing] guidance about how we evaluate statements regarding . . . symptoms” and
“defin[ing] a symptom as the individual’s own description or statement of his or her physical or
mental impairment(s)”); and SSR 96-7p, 1996 WL 374186 (same). SSR 06-3p provides that,
when considering opinions from non-medical sources, the ALJ may “consider such factors as the
nature and extent of the relationship, whether the evidence is consistent with other evidence, and
any other factors that tend to support or refute the evidence.” Id. at *6.
Here, the ALJ expressly considered the opinions from Plaintiff’s parents and two of his
former employers. (See Tr. 520). The ALJ noted that Plaintiff’s parents lacked medical expertise
and harbored a natural bias in favor of their son. (See id.) The ALJ also noted that Plaintiff’s
father lived with Plaintiff and therefore stood to gain financially from an award of benefits. (See
id.) The ALJ properly considered the relationship between Plaintiff and his parents because SSR
06-3p expressly permits an ALJ to consider the nature and extent of a claimant’s relationship
with lay witnesses. See 2006 WL 2329939 at *6. The discussion of Plaintiff’s parents’ lack of
medical background identifies whether they are a medical or non-medical source. Further, the
consideration easily fits within the parameters of “any other factor” that may tend to support the
6
evidence. See 2006 WL 2329939 at *6. Plaintiff’s parents’ medical knowledge–or lack thereof–
could provide support for their opinions or detract from them.
Next, the ALJ discounted Plaintiff’s former employers’ opinions because those
employers discussed Plaintiff’s ability to perform jobs the ALJ found to be beyond Plaintiff’s
ability based on his RFC. (Tr. 520). This fits within the category of “any other factor” tending to
support the evidence. When considering these opinions, the ALJ correctly considered the jobs to
which they relate. Simple logic supports the ALJ’s decision because Plaintiff’s ability or inability
to perform a job that is too difficult based on the Plaintiff’s RFC offers limited information about
Plaintiff’s ability to perform less-demanding jobs. Plaintiff does not argue the ALJ improperly
considered these factors or otherwise failed to comply with the standard governing analysis of
lay-witness opinions. Thus, the court finds the ALJ did not err in his analysis of the non-medical
opinion evidence under the governing standard, SSR 06-3p.
VI.
ORDER
Based on the forgoing, the court AFFIRMS the Commissioner’s decision.
Dated this 22nd day of February 2018.
Dustin B. Pead
United States Magistrate Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?