United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing, United States Magistrate Judge.
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.
Standard of Review
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.
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)).
Applicable Law and Sequential Evaluation Process
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).
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 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.
Background and Procedural History
Poppino was born in 1956 and completed two years of college.
AR 185, 189. 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.
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.
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,
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.
Ms. Poppino's Claims
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 and Melinda O'Neil, CANP; (3) the ALJ
erred in assessing her credibility. For the reasons discussed
below, none of these issues merit remand.
The Appeals Council did not err in rejecting the additional
evidence Ms. Poppino submitted.
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.
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); 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
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
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).
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.
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 ...