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Bevel v. Saul

United States District Court, W.D. Oklahoma

September 27, 2019

AMY E. BEVEL, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         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 application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of 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.

         I. PROCEDURAL BACKGROUND

         Initially and on reconsideration, the Social Security Administration denied Plaintiff’s application for benefits. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 15-27). The Appeals Council denied Plaintiff’s request for review. (TR. 1-4). Thus, the decision of the ALJ became the final decision of the Commissioner.

         II. THE ADMINISTRATIVE DECISION

         The ALJ 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. At step one, the ALJ determined that Plaintiff did not engage in substantial gainful activity since January 1, 2014, her alleged onset date. (TR. 17). At step two, the ALJ determined that Ms. Bevel had the following severe impairments: DDD (Disorders of the back, discogenic and degenerative) and fibromyalgia. (TR. 17). At step three, the ALJ 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. 19).

         At step four, the ALJ concluded that Ms. Bevel retained the residual functional capacity (RFC) to: “[P]erform the full range of sedentary work as defined in 20 CFR 404.1567(a).” (TR. 19). With this RFC, the ALJ concluded that Ms. Bevel was unable to perform any past relevant work. (TR. 26). However, because the ALJ concluded that Ms. Bevel could perform the full range of sedentary work, he proceeded to assess the issue of disability utilizing the Medical-Vocational Guidelines found at 20 C.F.R. Part 404, Subpart P, Appendix 2 (“the Grids”). See Social Security Ruling 83-11, Titles II And XVI: Capability to Do Other Work--the Exertionally Based Medical-Vocational Rules Met, 1983 WL 31252 at (1983) (allowing application of the Grids when the claimant can perform all of the exertional demand at a given level of exertion, i.e.-a full range of “sedentary” work).

         Because Ms. Bevel was considered a “younger individual, ” with a high school diploma or more, with no transferrable work skills, and was deemed capable of performing a full range of sedentary work, the applicable “Grid” was Rule 201.28. See 20 C.F.R. Part 404, Subpart P, Appendix 2; Rule 201.28. The ALJ applied this rule, and concluded that Ms. Bevel was not disabled. (TR. 27).

         III. STANDARD OF 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). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency’s factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence … is more than a mere scintilla … and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).

         While the court considers whether the ALJ 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).

         IV. ISSUES PRESENTED

         Ms. Bevel alleges: (1) the ALJ erred at step two by failing to properly consider Plaintiff’s depression, chronic pain disorder, and obesity; (2) the Appeals Council erred by failing to consider certain evidence; (3) the ALJ erred in evaluating Plaintiff’s subjective complaints; and (4) the ALJ erred in relying on the Grids at step five. (ECF No. 19:3-15).[2]

         V. STEP TWO

         At step two, the ALJ: (1) found that Ms. Bevel’s medically determinable mental impairment of “Anxiety Disorders” was not considered a severe impairment and (2) made no findings regarding whether Plaintiff’s chronic pain disorder and obesity were considered severe impairments. (TR. 17-19). Ms. Bevel alleges error in these findings. (ECF No. 19:3-6).[3] The Court rejects this argument.

         At step two, the ALJ found that Plaintiff suffered from two severe impairments. (TR. 17). The Tenth Circuit Court of Appeals has held that “once an ALJ finds that a claimant has at least one severe impairment, he does not err in failing to designate other disorders as severe at step two, because at later steps the agency ‘will consider the combined effect of all the claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.’ ” Barrett v. Astrue, 340 Fed.App’x 481, 484 (10th Cir. 2009) (quoting 20 C.F.R. § 404.1523). Consequently, the undersigned “can easily dispose of” Plaintiff’s step-two challenge. Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007); see also Brescia v. Astrue, 287 Fed.App’x 626, 629 (10th Cir. 2008) (“Once an ALJ has found that a claimant has at least one severe impairment, a failure to designate another disorder as ‘severe’ at step two does not constitute reversible error....”). Thus, the Court finds no error at step two.

         VI. EVIDENCE SUBMITTED TO THE APPEALS COUNCIL

         On January 12, 2018, Plaintiff appealed the ALJ’s decision to the Appeals Council. (TR. 188). In doing so, Ms. Bevel submitted additional evidence in the form of a February 16, 2018 CT scan of her lumbar spine. (TR. 8-9).[4] The Appeals Council declined Plaintiff’s request for review, and in doing so, stated:

You submitted Vantage Diagnostic Imaging report dated February 16, 2018 (2 pages). The Administrative Law Judge decided your case through November 17, 2017. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before November 17, 2017.

(TR. 2). “[T]he Appeals Council’s dismissal of the additional evidence’s import on the grounds that it was not temporally relevant indicates that it ultimately found the evidence did not qualify for consideration at all.” Padilla v. Colvin, 525 Fed.App’x 710, 712 (10th Cir. 2013). This decision is supported by the regulations. See 20 C.F.R. § 404.970(a)(5) (noting that temporal relevance is a requirement to warrant consideration by the Appeals Council). Ms. Bevel alleges error in the Appeals Council’s failure to consider the additional evidence, [5] but the Court rejects this argument.

         Whether evidence qualifies for consideration by the Appeals Council is a question of law subject to de novo review. Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003). Additional evidence should only be considered by the Appeals Council if it is “new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5) (effective Jan. 17, 2017).[6] Evidence is considered “new” “if it is not duplicative or cumulative, ” and it is considered “material” “if there is a reasonable possibility that it would have changed the outcome.” Threet, 353 F.3d at 1191 (alterations omitted) (internal quotation marks omitted). Evidence is considered “chronologically pertinent” if it relates to the time period on or before the ALJ’s decision. Id. If the Appeals Council erred in rejecting the evidence, remand is warranted. See Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004).

         Here, Ms. Bevel argues that the evidence is “new” because it “has not been in the record previously.” (ECF No. 19:6). The Court disagrees. As stated, evidence is considered “new” “if it is not duplicative or cumulative.” See supra, Threet. The record before the ALJ included a CT scan of Ms. Bevel’s lumbar spine dated June 6, 2016. (TR. 513-514). The CT scan submitted to the Appeals Council, dated February 16, 2018, is not considered “new” because it is cumulative of the June 6, 2016 report. The findings from the two scans are as follows:

June 6, 2016 CT scan

(included in the record before the ALJ)

February 16, 2018 CT scan

(submitted to the Appeals Council)

L1/2: The central canal and neural foramina are patent.

L1/2: The central canal and neural foramen are patent.

L2/3: The central canal and neural foramina are patent.

L2/3: The central canal and neural foramen are patent.

L3/4: There is mild facet hypertrophy. There is ligamentum flavum thickening with mild calcifications on the right. Central canal is patent. There is mild neural foraminal narrowing.

L3/4: There is mild facet hypertrophy with mild vacuum-disc phenomenon on the left facet joint. There is ligamentum flavum thickening with mild calcification on the right. There is a small annular disc bulge with borderline central canal narrowing measuring 10 mm. There is mild bilateral neuroforaminal narrowing.

L4/5: There are postsurgical changes with interbody fusion graft in place. There is hypertrophy of the facet joints with mild posterior endplate spurring. The central canal is patent. There is mild neural foraminal narrowing.

L4/5: There are postsurgical changes. There is mild hypertrophy of the facet joints with mild posterior endplate spurring. The central canal is patent. There is mild right with mild/moderate left neuroforaminal narrowing.

L5/S1: There is facet hypertrophy. The central canal is patent. There is mild neural foraminal narrowing.

L5/S1: There is facet hypertrophy. The central canal is patent. There is mild/moderate neuroforaminal narrowing.

         Both scans were performed at Vantage Diagnostic Imaging and in the 2018 report, Dr. James Cooper specifically referenced the 2016 scan for comparison and stated: “there has been no significant change since the prior examination.” (TR. 9). Based on the findings in the reports themselves, as well as Dr. Cooper’s comparison, the Court concludes that the 2018 scan was not “new” evidence, but instead was cumulative of the 2016 report, which had been included in the record before the ALJ.

         Plaintiff contends that the evidence was “material” because “it reveals the progression of Claimant’s worsening neuroforaminal narrowing, particularly at ¶ 4/5 and L5/1, when compared to Claimants [sic] August 13, 2016 MRI.” (ECF No. 19:6). In support of this statement, Ms. Bevel cites the administrative transcript at pages 8-9. (ECF No. 19:6). But these pages are Plaintiff’s February 16, 2018 CT scan, which refers to the June 6, 2016 scan for comparison, with no mention of an August 13, 2016 MRI. As stated, the findings in the February 18, 2018 scan are not considered “new” for purposes of consideration by the Appeals Council. Because the two scans render cumulative/duplicative results, the Court ...


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