STEVEN C. YARBROUGH, Magistrate Judge.
Claimant Juanita J. Secatero suffers from the following severe impairments: migraine headaches; diabetes mellitus, type II; mild osteoarthritis; right shoulder disorder; posttraumatic stress disorder; anxiety; and depression. Administrative Record ("AR") at 17. She alleges that she became disabled as of January 1, 2014. AR 13. She has a high school degree, completed two years of college, and earned a nursing assistance certificate that expired in 1993. AR 131-32, 357. She has past work as a home attendant, leasing agent, employment interviewer, and personnel clerk. AR 132-33.
Ms. Secatero filed a claim of disability under Title XVI on July 21, 2015 and a claim under Title II on August 25, 2015. AR 165, 166. Her applications were initially denied on November 18, 2015, AR 165-66, and upon reconsideration on April 28, 2016, AR 195-96. Administrative Law Judge ("ALJ") Cole Gerstner conducted a hearing on October 11, 2017. AR 91. Ms. Secatero appeared in person at the hearing with attorney representative Michael Armstrong. AR 108. The ALJ took testimony from Ms. Secatero and an impartial vocational expert ("VE"), Karen N. Provine. Id.
On January 29, 2018, ALJ Gerstner issued an unfavorable decision. AR 13. The Appeals Council denied review on December 1, 2018, noting that Ms. Secatero submitted additional evidence but declining to consider it. AR 1-2. The ALJ's decision is the Commissioner's final decision for purposes of judicial review. Ms. Secatero proceeded to federal court on January 30, 2019. Doc. 1. Because the parties are familiar with Ms. Secatero's medical history, the Court reserves discussion of the medical records relevant to this appeal for its analysis.
An individual is considered disabled if 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) (pertaining to disability insurance benefits); see also id. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential evaluation process ("SEP") to determine whether a person satisfies the statutory criteria as follows:
See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by "substantial evidence" or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court "neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'" Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). "[W]hatever the meaning of `substantial' in other contexts, the threshold for such evidentiary sufficiency is not high." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial evidence "is `more than a mere scintilla.'" Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means — and means only — such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted).
A decision "is not based on substantial evidence if it is overwhelmed by other evidence in the record," Langley, 373 F.3d at 1118, or "constitutes mere conclusion," Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must "provide this court with a sufficient basis to determine that appropriate legal principles have been followed." Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, "the record must demonstrate that the ALJ considered all of the evidence," and "the [ALJ's] reasons for finding a claimant not disabled" must be "articulated with sufficient particularity." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But where the reviewing court "can follow the adjudicator's reasoning" in conducting its review, "and can determine that correct legal standards have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The court "should, indeed must, exercise common sense." Id. "The more comprehensive the ALJ's explanation, the easier [the] task; but [the court] cannot insist on technical perfection." Id.
In support of her Motion to Remand, Ms. Secatero raises three main arguments. First, she argues that the Appeals Council should have considered her additional evidence. Doc. 18 at 14-18. Second, she argues error in the ALJ's evaluation of the opinion of her treating psychiatrist, Dr. Richard Barendsen. Doc. 18 at 18-23. Finally, she argues that the ALJ was required to develop the record to clarify the medical evidence related to her seronegative arthritis. Doc. 18 at 23-25. The Court agrees with Ms. Secatero that the additional evidence submitted to the Appeals Council was new, material, and temporally relevant. The Court will not address Ms. Secatero's remaining claims of error because they may be affected by the ALJ's treatment of this case on remand. Wilson v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
During Ms. Secatero's request for review, she submitted three sets of additional evidence to the Appeals Council. AR 54, 73, 85. On appeal, she narrows her claim of error to a set of medical records from the Indian Health Service ("IHS") dated November 15, 2015 through January 8, 2018. Doc. 18 at 14; AR 74-84. These are treatment records from an IHS psychiatrist, Dr. Richard Laughter, who also issued several medical opinions with the conclusion that Ms. Secatero is disabled and cannot work.
On December 17, 2015, Dr. Laughter completed a medical assessment of ability to do work-related activities (mental) ("MSS"). The form instructs Dr. Laughter to consider the patient's medical history from 2015 to current examination date. AR 569. The form is broken down into the familiar nonexertional categories (understanding and memory; sustained concentration and persistence; social interaction; and adaptation). AR 569-70. Under "understanding and memory," Dr. Laughter assessed one moderate and two marked limitations. AR 569. Under "concentration and persistence," Dr. Laughter assessed three moderate limitations and five marked limitations. AR 569. Under "social interaction," he assessed two moderate and three marked limitations. Under adaptation, he assessed two moderate and two marked limitations. AR 1346. The ALJ described these forms and criticized them because they have "slight" as the least amount of limitation Dr. Laughter could opine that Ms. Secatero has. AR 28. He likewise criticized the claimant's attorney for submitting the form in August of 2017 when the form is dated December of 2015. Finally, he noted "that the evidence of record
Also on December 17, 2015, Dr. Laughter completed listing forms for 12.04 Affective Disorders and 12.06 Anxiety-Related Disorders, finding that Ms. Secatero satisfied the criteria for both listings. AR 571-72. The ALJ explained that these are criteria for the "old" listings and are no longer applicable. AR 28. "Finally, as noted above, the evidence of record
Later in his opinion, the ALJ declined to incorporate Dr. Laughter's opined limitations into Ms. Secatero's RFC, giving them "[l]ittle weight." AR 33. "[D]espite being an acceptable medical source under the regulations, the medical evidence of record
The additional records Ms. Secatero submitted to the Appeals Council document two visits to Dr. Laughter, one of which is contemporaneous with his MSS opinion. On November 5, 2015, Dr. Laughter noted Ms. Secatero's report of being depressed and anxious. He rated her mood as 8/10 and anxiety as 7/10 (with ten being severe). Her interest, self-esteem, energy, and concentration were low. Her appetite was "up and down." She "has occas[]ional auditory hallucinations, brief, and no command." He assessed that she "continues with severe [d]epression[] and anxiety" and "has episodic PTSD." He concluded that "[s]he is unable to work due to the severity of her medical condition." AR 74. He noted she had a "[h]istory of near panic to panic" and her anxiety is "[g]eneralized and situational." He reported that she overdosed on amitriptyline and was inpatient at UNM for two weeks for her suicide attempt. She denied abuse as a child and reported being raped as an adult. AR 75. He performed a mental status exam, which was normal other than her mood (anxious) and her suicidal ideation (passive without plan). AR 75-76. The notes also indicate that there was likely a prior visit for which notes have not been produced. AR 74.
The other note is dated May 19, 2016. Again, Dr. Laughter noted Ms. Secatero's report that her mood was "sad, depressed, crying, anxious." He rated her mood as 5/10 and anxiety as 2/10. She reported isolation, low self-esteem, low energy, "up and down" concentration, and low appetite. She denied psychosis and expressed occasional passive suicidal ideation. AR 77. Her mental status exam was normal other than her mood (anxious) and her suicidal ideation (passive without plan). AR 77-78. She reported headaches when taking her mood stabilization medication. AR 78.
The Appeals Council found that "this evidence does not show a reasonable probability that it would change the outcome of the decision" and did not exhibit it. AR 2.
Under its regulations, the Appeals Council will only review a case if, among other things, it receives additional evidence "that 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), 416.1470(a)(5).
The standard of review changes significantly, however, if the Appeals Council did consider and exhibit the new evidence, but nonetheless determined that substantial evidence supported the ALJ's decision. In such a case, without consideration of the three requirements for qualification, the Court would then perform its own substantial-evidence review of the entire record, taking into account the new evidence that neither the ALJ nor the Appeals Council ever analyzed. Padilla v. Colvin, 525 F. App'x 710, 712 n.1 (10th Cir. 2013); Krauser, 638 F.3d at 1328; Vallejo v. Berryhill, 849 F.3d 951, 956 (10th Cir. 2017). The Court will refer to this as the "substantial-evidence review" standard.
Advocating for the "substantial-evidence review" standard, the Commissioner argues that the Appeals Counsel considered the evidence and the Court therefore does not need to perform an analysis of whether it qualifies for consideration as new, material, and temporally relevant. Doc. 22 at 19 n.7. The language in the Appeals Council's order is unclear and does not indicate whether the Appeals Council "considered" the additional evidence. AR 1-2. The Appeals Council did, however, state: "We did not exhibit this evidence." AR 2.
The Commissioner suggests that the Appeals Council "considered" the additional evidence because it "found that `this evidence does not show a reasonable probability that it would change the outcome of the ALJ's decision.'" Doc. 22 at 19 n.7 (alterations omitted). This argument, however, fails because the Appeals Council determines reasonable probability before it decides whether it will "consider" the additional evidence as part of its substantial-evidence review of the ALJ's decision. Thus, assessing whether reasonable probability exists does not equate to performing the review that the social security regulations contemplate. As the Tenth Circuit found when considering a similar question in an unpublished decision, subsection (a)(5) consists of "predicate requirements . . . to warrant consideration" of the additional evidence. Padilla v. Colvin, 525 F. App'x 710, 712 (10th Cir. 2013). Therefore, "the Appeals Council's dismissal of the additional evidence's import [under a subsection (a)(5) criterion] indicates that it ultimately found the evidence did not qualify for consideration at all." Id. "This case therefore boils down to whether the Appeals Council should have considered the additional evidence," under the de novo standard of review. Id. Based on this unpublished but influential Tenth Circuit decision, the Court rejects the Commissioner's argument that the Appeals Council "considered" the evidence, and proceeds to review de novo whether the evidence is new, material, and temporally relevant.
Evidence is new "if it is not duplicative or cumulative." Threet, 353 F.3d at 1191. The additional evidence consists of treatment notes from treating psychiatrist Dr. Laughter. AR 74-78. As the ALJ found, "the medical evidence of record lacks treatment records from [Dr. Laughter], so it is unclear what, if any, relationship he had with the claimant." AR 33. Because the additional evidence clarifies the answer to an open question in the record, the Court finds that the treatment records from Dr. Laughter are not duplicative or cumulative.
Evidence is chronologically pertinent if it relates to the time period adjudicated by the ALJ; i.e., the period on or before the date of the ALJ's decision. Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004). The treatment records from Dr. Laughter are dated November 5, 2015 and May 19, 2016. AR 74-78. Ms. Secatero alleged disability beginning January 2014, AR 13, and ALJ Gerstner issued his decision in February 2018, AR 35. Thus, the records are temporally relevant to the decision.
Evidence is material "if there is a reasonable possibility that it would have changed the outcome." Threet, 353 F.3d at 1191.
For the reasons stated above, Ms. Secatero's Motion To Reverse And Remand For A Rehearing With Supporting Memorandum, Doc. 18, is
