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Poppino v. Berryhill

United States District Court, D. New Mexico

March 30, 2018

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


          Laura Fashing, United States Magistrate Judge.

         THIS MATTER comes before the Court on plaintiff Teresa Poppino's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum (Doc. 23), which was fully briefed on July 3, 2017. See Docs. 25, 26, 27. The parties consented to my entering final judgment in this case. Doc. 28. Having meticulously reviewed the entire record and being fully advised in the premises, I find that Ms. Poppino's motion is not well-taken, and I will DENY it.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or she is unable “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); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the Listings[2] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Ms. Poppino was born in 1956 and completed two years of college. AR 185, 189.[3] She worked as a radio ad copywriter and as a casino dealer. AR 189, 212-13, 217. Ms. Poppino filed an application for disability insurance benefits on December 3, 2012-alleging disability since August 19, 2012 due to diabetes, migraines, rheumatoid arthritis, fibromyalgia, and liver disease. AR 167-68, 188. The Social Security Administration (“SSA”) denied her claim initially on May 9, 2013. AR 91-94. The SSA denied her claims on reconsideration on September 19, 2013. AR 100-05. Ms. Poppino requested a hearing before an ALJ. AR 110-11. On April 21, 2015, ALJ Christa Zamora held a hearing. AR 36-67. ALJ Zamora issued her unfavorable decision on June 29, 2015. AR 15-35.

         The ALJ found that Ms. Poppino met the insured status requirements of the Social Security Act through June 30, 2013. AR 20. At step one, the ALJ found that Ms. Poppino had not engaged in substantial, gainful activity since August 19, 2012, her alleged onset date. Id. At step two, the ALJ found that Ms. Poppino suffered from the severe impairments of fibromyalgia and degenerative disc disease. Id. The ALJ found that her diabetes mellitus, rheumatoid arthritis, hyperlipidemia, asthma, migraines, esophageal obstruction were nonsevere. Id. At step three, the ALJ found that none of Ms. Poppino's impairments, alone or in combination, met or medically equaled a Listing. AR 24. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Poppino's RFC. AR 24-29. The ALJ found Ms. Poppino had the RFC to “perform light work as defined in 20 CFR 404.1567(b) except for the following: the claimant is limited to occasional exposure to extreme cold and vibrations; she can never be exposed to hazards; she can frequently handle and finger; and she can never climb ladders, ropes, and scaffolds.” AR 24. At step four, the ALJ concluded that Ms. Poppino was able to perform her past relevant work as an ad copywriter and as a casino dealer, and was therefore not disabled. AR 29.

         On September 2, 2015, Ms. Poppino requested review of the ALJ's unfavorable decision by the Appeals Council. AR 12-13. Ms. Poppino submitted additional opinion evidence from one of her treating providers: a medical assessment of ability to do work-related activities (physical and non-physical) signed and dated by Melinda O'Neil, CANP, [4] on September 10, 2015. AR 10-11. On July 8, 2016, the Appeals Council denied the request for review. AR 1-4. The Appeals Council stated that it “considered” Ms. O'Neil's opinions, but found the opinions were about a time after June 30, 2013, her date last insured, and therefore did not affect the decision. AR 2. Ms. Poppino timely filed her appeal to this Court on September 7, 2016. Doc. 1.[5]

         IV. Ms. Poppino's Claims

         Ms. Poppino raises three arguments for reversing and remanding this case: (1) the Appeals Council committed legal error in determining that the evidence she submitted did not constitute new, material, and chronologically pertinent evidence; (2) the ALJ failed to adequately account for the limitations assessed by treating nurse practitioners Heidi Dillenbeck, FNP-C[6] and Melinda O'Neil, CANP; (3) the ALJ erred in assessing her credibility. For the reasons discussed below, none of these issues merit remand.

         V. Analysis

         A. The Appeals Council did not err in rejecting the additional evidence Ms. Poppino submitted.

         Ms. Poppino argues that the Appeals Council erred in finding that the opinions dated September 10, 2015 from Melinda O'Neil, CANP were not temporally relevant. Doc. 23 at 13. She argues that the Appeals Council erred in finding the evidence did not qualify for consideration, and urges the Court to remand on this basis. Id. at 12-16. The Commissioner argues that the ALJ already considered Ms. O'Neil's March 2015 opinion about the relevant time period, and that Ms. O'Neil's September 2015 opinion therefore was not “new, material, or chronologically relevant.” Doc. 25 at 17. I find that the additional evidence Ms. Poppino submitted to the Appeals Council was not “new.” The Appeals Council therefore did not err in rejecting it.

         The Appeals Council will grant review of a case if, inter alia, “the claimant submits additional evidence that is new, material, and related to the period on or before the date of the ALJ decision.” 20 C.F.R. § 404.970(b) (effective through Jan. 16, 2017)[7]; see also Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) (holding that under 20 C.F.R. § 404.970(b), the Appeals Council must consider evidence submitted with a request for review if it is new, material, and related to the period on or before the date of the ALJ's decision). This means the evidence is:

1. Not part of the claim(s) record as of the date of the ALJ decision;
2. Relevant, i.e., involves or is directly related to issues adjudicated by the ALJ; and
3. Relates to the period on or before the date of the hearing decision, meaning it is (1) dated before or on the date of the ALJ decision, or (2) post-dates the ALJ decision but is reasonably related to the time period adjudicated by the ALJ.
NOTE: The AC does not apply a strict deadline when determining if post-dated evidence relates to the period at issue. There are circumstances when evidence dated after the ALJ decision relates to the period at issue. For example, a statement may relate to the period at issue when it postdates the decision but makes a direct reference to the time period adjudicated by the ALJ. This may be especially important in a claim involving a date last insured (DLI) where a statement from a treating source dated after an ALJ decision specifically addresses the time period before the DLI.

Commissioner's Hearings, Appeals and Litigation Manual (“HALLEX”) I-3-3-6(B)(2); see also Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003) (affirming that evidence is new if it is not duplicative or cumulative, and is material if there is a reasonable possibility it could change the outcome).

         The Tenth Circuit repeatedly has held that whether evidence is “new, material and chronologically pertinent is a question of law subject to our de novo review.” Krauser v. Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011) (internal citations and quotation omitted). Thus, the question before the Court; i.e., whether the Appeals Council should have considered the medical source statements in Ms. Poppino's request for review, is a question of law subject to the Court's de novo review. Threet, 353 F.3d at 1191. Although the Appeals Council rejected the newly submitted evidence on the ground that it was not related to the relevant time period, the Court does not analyze this element. Instead, the Court finds that the evidence was not “new”; therefore, the Appeals Council did not err in rejecting the evidence.

         In this case, Ms. Poppino had a date last insured of June 30, 2013. AR 20. The ALJ issued her decision on June 29, 2015. AR 15-35. Ms. Poppino requested review by the Appeals Council, and submitted two additional ...

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