United States District Court, N.D. Oklahoma
OPINION AND ORDER TO DENY PLAINTIFF'S
B. COHN UNITED STATES MAGISTRATE JUDGE.
matter is before the undersigned United States Magistrate
Judge for decision. Nikeya Proctor (“Plaintiff”)
seeks judicial review of the Commissioner of the Social
Security Administration's decision finding of not
disabled. As set forth below, the Court
DENIES Plaintiff's appeal and
AFFIRMS the Commissioner's decision in
STANDARD OF REVIEW
receive disability or supplemental security benefits under
the Social Security Act (“Act”), a claimant bears
the burden to demonstrate an “inability 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); accord
42 U.S.C. § 1382c(a)(3)(A).
further provides that an individual:
shall be determined to be under a disability 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, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff
must demonstrate the physical or mental impairment “by
medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3),
Security regulations implement a five-step sequential process
to evaluate a disability claim. 20 C.F.R. §§
404.1520, 416.920; Williams v. Bowen, 844 F.2d 748,
750 (10th Cir. 1988) (setting forth the five steps in
detail). “If a determination can be made at any of the
steps that a plaintiff is or is not disabled, evaluation
under a subsequent step is not necessary.”
Williams, 844 F.2d at 750. The claimant bears the
burden of proof at steps one through four. See Wells v.
Colvin, 727 F.3d 1061, 1064 at n.1. (10th Cir. 2013). If
the claimant satisfies this burden, then the Commissioner
must show at step five that jobs exist in the national
economy that a person with the claimant's abilities, age,
education, and work experience can perform. Id.
reviewing a decision of the Commissioner, the Court is
limited to determining whether the Commissioner has applied
the correct legal standards and whether the decision is
supported by substantial evidence. See e.g., 42
U.S.C. § 405(g) (“court shall review only the
question of conformity with such regulations and the validity
of such regulations”); Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is
more than a scintilla but less than a preponderance and is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See id.
Substantial evidence “does not mean a large or
considerable amount of evidence, but rather ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). The Court's review is based on the record, and
the Court will “meticulously examine the record as a
whole, including anything that may undercut or detract from
the [Administrative Law Judge's
(“ALJ's”)] findings in order to determine if
the substantiality test has been met.” Id. The
Court may neither reweigh the evidence nor substitute its
judgment for that of the Commissioner. See Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if
the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner's
decision stands. See White v. Barnhart, 287 F.3d
903, 908 (10th Cir. 2002).
Procedural History and Childhood Disability
received supplemental security income (“SSI”)
benefits based on disability as a child. (Tr. 10). In May
2009, Plaintiff was provided with an Individualized Education
Plan (“IEP”) due to her disorders in attention,
visual, and auditory processing which affected her
progression in reading, comprehension, and math. (Tr.
213-22). She was on track to get a certificate of high school
completion but needed to improve her grades in order to pass
the high school exit exam. She was interested in attending
college and worked selling newspapers. (Tr. 213-17). She was
polite, quiet, and non-disruptive, and did well with
individual work when she applied herself. Her social behavior
was “school appropriate, ” she interacted
socially with her peers, and behavior management was not
needed. (Tr. 213-17, 220).
required by law, eligibility for SSI benefits was
re-determined when Plaintiff attained age eighteen. (Tr. 10).
Plaintiff turned eighteen in April 2009, and it was
determined Plaintiff was no longer disabled as of September
1, 2014. Id. at 10, 12, 19. At the administrative
hearing, Plaintiff appeared and waived right to counsel, and
a vocational expert also testified. Id. at 10. On
September 22, 2015, the ALJ issued a decision finding
Plaintiff not disabled. (Tr. 10-21). On February 22, 2017,
the Appeals Council denied Plaintiff's request for review
(Tr. 1-6), making the ALJ's decision the
Commissioner's final decision for purposes of judicial
review. See 20 C.F.R. § 422.210(a).
ISSUES AND ANALYSIS
appeal, Plaintiff alleges five errors: (1) The Appeals
Council failed to properly consider new evidence; (2) the
Plaintiff was not given proper notice regarding
representation and the ALJ failed in his duty to fully
develop the record; (3) the finding that Plaintiff's
impairment does not meet a Listing is not supported by
substantial evidence; (4) the ALJ failed to properly consider
the medical source opinions; and (5) the ALJ's evaluation
of the Plaintiff's allegations is not supported by
substantial evidence. (Pl. Br. at 3-4, Doc. 22).
states the Appeals Council erred in finding the additional
evidence did not relate to the relevant time period. (Pl. Br.
at 4). The ALJ reviewed the record in order to make a
decision. Evidence submitted to the Appeals Council is
evaluated if it is new, material, and related to the period
on or before the date of the ALJ's decision. Chambers
v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004). When
the Appeals Council rejects additional evidence in support of
a claim, and the plaintiff objects, the court may review the
information to resolve the matter of whether it was correctly
rejected. Krauser v. Astrue, 638, F.3d 1324, 1328
(10th Cir. 2011). The Appeals Court noted:
We also looked at the records from Indian Health Care
Resource Center dated August 31, 2016 (16 pages). The ALJ
decided your case through September 22, 2015. This new
information is about a later time. Therefore, it does not
affect the decision about whether you were disabled beginning
on or before September 22, 2015.
If you want us to consider whether you were disabled after
September 22, 2015, you need to apply again.
(Tr. 2). The undersigned has also reviewed the additional
evidence and agrees the Appeals Council reasonably found the
new evidence dated after the ALJ's September 22, 2015
decision. (See Supp. Tr. 296-311). The evidence
related to a time period after the decision, and thus, it did
not provide a basis for changing the decision. (Tr. 2).
Plaintiff argues the new evidence supports the opinion of the
psychological consultative examiner. (Pl. Br. at 5). However,
the additional evidence shows Plaintiff continued to report
the same issues the ALJ considered, i.e., learning disorder,
anxiety, disorder, and depressive disorder. (See
generally Tr. 296-311).
Right to Counsel and ALJ Duty to Develop
states she was not given proper notice regarding her right to
counsel at the hearing, and the ALJ should have further
developed the record. (Pl. Br. at 6-7). Plaintiff signed a
waiver of her right to representation on the same day as the
hearing. (Pl. Br. at 7) (citing Tr. 124). A District Court in
New Mexico recently reviewed a case where the plaintiff
alleged he did not knowingly waive the right to counsel:
The Social Security Administration's (“SSA”)
Hearings, Appeals and Litigation Law Manual
(“HALLEX”) requires where a claimant is
unrepresented, “the ALJ will ensure on the record that
the claimant has been properly advised of the right to
representation and that the claimant is capable of making an
informed choice about representation.” SSA, HALLEX
I-2-6-52, available at
ALJ's are not required to “recite specific
questions regarding the right to representation or the
claimant's capacity to make an informed choice about
representation.” Id. If a claimant is
illiterate, the ALJ must explain that both free and
contingent representation is available to the claimant.
The Tenth Circuit only requires written notice that advises a
claimant of their right to be represented by counsel. See
Carter v. Chater, 73 F.3d 1019, 1021 (10th Cir. 1996)
(neither 42 U.S.C. § 404.1706 406(c) nor 20 C.F.R.
§ 404.1706 requires more than written advisement of the
claimant's right to be represented); Garcia v.
Califano, 625 F.2d 354, 356 (10th Cir. 1980) (neither
the statute nor the regulations require anything more than
written notice of the claimant's right to representation
by an attorney).
Villalobos v. Colvin, No. CV-15-00463-CG, 2016 WL
10588059, at *4 (D. N.M. Mar. 29, 2016). As Plaintiff signed
a written notice waiving her right to counsel, the ALJ
satisfied the requirements of HALLEX and the Tenth Circuit.
(Tr. 124). “The ALJ's duty to develop the record is
heightened when a claimant is unrepresented. However, a
claimant's pro se status does not, in and of itself,
mandate a reversal.” See Musgrave v. Sullivan,
966 F.2d 1371, 1376 ...