United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff's
applications for supplemental security income and disability
insurance benefits under the Social Security Act. The
Commissioner has answered and filed the administrative record
(hereinafter TR. ___). The parties have consented to
jurisdiction over this matter by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
parties have briefed their positions, and the matter is now
at issue. Based on the Court's review of the record and
the issues presented, the Court AFFIRMS the
applications for supplemental security income and disability
insurance benefits were denied initially and on
reconsideration. Following a hearing, an Administrative Law
Judge (ALJ) issued an unfavorable decision. (TR. 17-26,
776-785). The Appeals Council denied Plaintiff's request
for review. (TR. 790-792). Plaintiff filed a federal appeal
and this Court remanded the case to the Appeals Council for
reconsideration of: (1) medical opinions including those
offered by treating and non-treating sources and (2) whether
Plaintiff had satisfied the criteria for Listings 11.02 or
11.03. (TR. 802). Following the Court's order, the
Appeals Council remanded the case to a second ALJ for
reconsideration of the issues as outlined by the District
Court. (TR. 805-807).
two administrative hearings, a second ALJ issued a
Recommended Decision. (TR. 597-653). In the Notice of the
Recommended Decision, the ALJ noted that this decision was
not the Commissioner's final decision, but that the
decision would be sent to the Appeals Council who would
consider the evidence and decide whether to adopt, modify, or
reject the Recommended Decision. (TR. 594); see 20
C.F.R. §§ 404.979 & 416.1479. The Appeals
Council adopted the decision of the ALJ in its entirety. (TR.
585-588). Thus, the July 15, 2016 decision of the Appeals
Council became the final decision of the Commissioner.
See Brown v. Bowen, 801 F.2d 361, 362, n. 1 (10th
Cir. 1986) (“In the instant case, the Appeals Council
adopted the ALJ's recommended decision and it is this
action by the Appeals Council which is the final agency
decision for review.”).
STANDARD OF REVIEW
Court reviews the Commissioner's final “decision to
determin[e] whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v.
Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. (quotation omitted). As
stated, the Commissioner's “final decision”
is that issued by the Appeals Council on July 15, 2016.
See supra, Brown v. Bowen. While the court
will review the Appeals Council's decision, “to the
extent the Council has adopted, agreed with, or otherwise
relied on other decisions in the record, the court will
include those evaluations and explanations in its
review.” Blevins v. Astrue, Case No.
07-1342-JWL, 2011 WL 843961, at *5 (D. Kan. Mar. 8, 2011).
the court considers whether the ALJ and the Appeals Council
followed the applicable rules of law in weighing particular
types of evidence in disability cases, the court will
“neither reweigh the evidence nor substitute [its]
judgment for that of the agency.” Vigil v.
Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal
quotation marks omitted).
THE ADMINISTRATIVE DECISION
and the Appeals Council followed the five-step sequential
evaluation process required by agency regulations. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.
2005); 20 C.F.R. §§ 404.1520 & 416.920. At step
one, the ALJ and the Appeals Council determined that
Plaintiff had not engaged in substantial gainful activity
since July 27, 2009, the alleged disability onset date. (TR.
587, 610). At step two, the ALJ and the Appeals Council
determined that Ms. Harris had the following severe
impairments: pseudo-seizure; seizure; migraine headache;
hypothyroidism; essential hypertension; obesity; a depressive
disorder, not otherwise specified; a learning disorder, not
otherwise specified; an anxiety-related disorder; and a
personality disorder. (TR. 587, 610). At step three, the ALJ
and the Appeals Council found that Plaintiff's
impairments did not meet or medically equal any of the
presumptively disabling impairments listed at 20 C.F.R. Part
404, Subpart P, Appendix 1. (TR. 587, 632).
four, the ALJ and the Appeals Council found that Plaintiff
had no past relevant work. (TR. 588, 651). The ALJ and the
Appeals Council further concluded that Ms. Harris had the
residual functional capacity (RFC) to:
[P]erform a full range of work at all exertional levels but
with the following non-exertional limitations: the claimant
is to avoid all exposure to hazards, such as unprotected
heights and heavy machinery. The claimant can understand,
remember, and carry out simple, routine, repetitive tasks.
The claimant can respond appropriately to supervisors,
co-workers, and usual work situations, but have no contact
with the general public. The claimant can perform low-stress
work, defined as occasional decision-making and occasional
changes in workplace settings.
(TR. 587, 645). Based on the finding that Plaintiff had no
past relevant work, the decision proceeded to step five. At
the administrative hearing, the ALJ presented several
limitations to a vocational expert (VE) to determine whether
there were other jobs in the national economy that Plaintiff
could perform. (TR. 82-83). Given the limitations, the VE
identified jobs from the Dictionary of Occupational Titles.
(TR. 83). The ALJ adopted the testimony of the VE and both
the ALJ and the Appeals Council concluded that Ms. Harris was
not disabled based on her ability to perform the identified
jobs. (TR. 588, 652).
alleges error in the ALJ's: (1) step three findings, (2)
step four findings, including treatment of various medical
opinions and the RFC determination, (3) credibility
determination, and (4) failure to call a medical expert.
Dr. Stephen Smedlund treated Plaintiff from July 2009 to
January 2012 for a seizure disorder. (TR. 251, 252, 255-257,
490, 508-510, 528-534, 580-581). On January 24, 2012, Dr.
Smedlund issued an opinion which, in part, involved a finding
that Ms. Harris had satisfied the criteria for a listed
impairment. (TR. 580-581). Plaintiff: (1) challenges the
ALJ's treatment of Dr. Smedlund's opinion and (2)
challenges the ALJ's step three finding that Plaintiff
did not meet a listed impairment. (ECF No. 16:15-18). Because
the ALJ's determination of both issues relies on the same
rationale, the Court will contemporaneously address both
Dr. Smedlund's January 24, 2012 Opinion
Opinions are “statements from physicians . . . that
reflect judgments about the nature and the severity of [a
claimant's] impairments, including your symptoms,
diagnosis and prognosis, what [a claimant] can still do
despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. §§ 404.1527(a) &
416.9274(a). Although the record contains written reports
documenting Plaintiff's various office visits to Dr.
Smedlund,  the only “medical opinion” at
issue is the one offered by Dr. Smedlund on January 24, 2012.
That opinion consisted, in part, of Dr. Smedlund's belief
that Plaintiff was presumptively disabled under Listing
11.02. (TR. 581). In the first administrative decision, the
ALJ acknowledged the January 24, 2012 opinion, but gave it
“limited weight.” (TR. 23-24).
The Appeals Council's Remand
remand, the Appeals Council acknowledged the ALJ's
treatment of the opinion, but ultimately found the analysis
deficient. (TR. 805-807). Accordingly, on remand, the Appeals
Council ordered the ALJ to:
• Further evaluate whether Ms. Harris' seizure
activity satisfied Listing 11.02 or 11.03 and
• Specifically address the opinion of Dr. Smedlund,
explaining whether it should be credited or rejected and if
the latter, to provide specific and legitimate reasons.
The ALJ's Step Three Finding and Treatment of Dr.
Smedlund's Opinion Regarding Listing 11.02
three, the ALJ acknowledged that the Appeals Council had
instructed him to evaluate:
. Whether Plaintiff had satisfied either
Listing 11.02 or 11.03, and
. Dr. Smedlund's opinion that Ms. Harris
had met Listing 11.02.
(TR. 632-633). The ALJ complied with the directives and
• concluded that Plaintiff did not meet either Listing
• rejected Dr. Smedlund's opinion that Plaintiff had
met Listing 11.02.
(TR. 633). The ALJ's reason for his findings on both
issues was a lack of objective evidence documenting
Plaintiff's drug serum levels. (TR. 632-634, 636, 637,
646). The Appeals Council adopted these opinions and ...