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Harris v. Berryhill

United States District Court, W.D. Oklahoma

May 12, 2017

CHERA HARRIS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.[1]



         Plaintiff 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).

         The 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 Commissioner's decision.


         Plaintiff's 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).

         Following 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.”).


         This 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).

         While 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 ALJ 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).

         At step 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).[2] 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).


         Plaintiff 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.

         V. STEP THREE

         Neurologist 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 arguments.

         A. Dr. Smedlund's January 24, 2012 Opinion

         Medical 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, [3] 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).

         B. The Appeals Council's Remand

         On 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.

(TR. 807).

         C. The ALJ's Step Three Finding and Treatment of Dr. Smedlund's Opinion Regarding Listing 11.02

         At step 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 ultimately:

• concluded that Plaintiff did not meet either Listing and
• 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 ...

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