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Proctor v. Berryhill

United States District Court, N.D. Oklahoma

July 24, 2018

NANCY A. BERRYHILL, [1]Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.



         This 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 this case.


         To 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).

         The Act 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.

         42 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), 1382c(a)(3)(D).

         Social 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.

         In 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).


         A. Procedural History and Childhood Disability

         Plaintiff 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).

         As 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).


         On 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).

         A. Post-Decisional Evidence

         1. Appeals Council

         Plaintiff 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).

         B. Right to Counsel and ALJ Duty to Develop

         Plaintiff 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. Id.
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 ...

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