STEVENSON v. BERRYHILL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TERRI LEE STEVENSON )

)

Plaintiff, )

)

-vs- ) Civil Action No. 18-1304

)

ANDREW M. SAUL, )

)

Defendant. )

AMBROSE, Senior District Judge.

OPINION AND ORDER

Synopsis

Plaintiff Terri Lee Stevenson (“Stevenson”) applied for a period of disability and

disability insurance benefits (“DIB”) in December 2016. (R. 17) She alleged an onset of

disability based upon both physical and mental impairments beginning in April of 2016.

(R. 17) She was represented by counsel at a hearing before an Administrative Law

Judge (“ALJ”), during which both she and a vocational expert (“VE”) appeared and

testified. (R. 17) Ultimately, the ALJ granted benefits for the period between April 25,

2016 through October 3, 2017, but denied benefits thereafter based upon medical

improvement. (R. 20-28) Stevenson subsequently filed a Request for Review with the

Appeals Council and submitted additional evidence. The Appeals Council denied the

request for review. She then filed this appeal. The parties have filed Cross-Motions for

Summary Judgment. See ECF Docket Nos. 13 and 15.

Opinion

1. Standard of Review

Judicial review of the Commissioner’s final decisions on disability claims is provided

by statute. 42 U.S.C. §§ 405(g) and 1383(c)(3)(7). Section 405(g) permits a district court

to review the transcripts and records on which a determination of the Commissioner is

based, and the court will review the record as a whole. See 5 U.S.C. § 706. When

reviewing a decision, the district court’s role is limited to determining whether the record

contains substantial evidence to support an ALJ’s findings of fact. Burns v. Barnhart,

312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence has been defined as “more than

a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v.

Perales, 402 U.S. 389, 401 (1971). Determining whether substantial evidence exists is

“not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.

1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of

evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve,

a conflict created by countervailing evidence. Nor is evidence substantial if it is

overwhelmed by other evidence – particularly certain types of evidence (e.g., that

offered by treating physicians).” Id. The Commissioner’s findings of fact, if supported by

substantial evidence, are conclusive. 42 U.S.C. §405(g); Dobrowolsky v. Califano, 606

F.2d 403, 406 (3d Cir. 1979); Richardson, 402 U.S. at 390, 91 S. Ct. 1420.

A district court cannot conduct a de novo review of the Commissioner’s decision, or

re-weigh the evidence; the court can only judge the propriety of the decision with

reference to the grounds invoked by the Commissioner when the decision was

rendered. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery

Corp., 332 U.S. 194, 196-7, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Otherwise stated, “I

may not weigh the evidence or substitute my own conclusion for that of the ALJ. I must

defer to the ALJ’s evaluation of evidence, assessment of the credibility of witnesses,

and reconciliation of conflicting expert opinions. If the ALJ’s findings of fact are

supported by substantial evidence, I am bound by those findings, even if I would have

decided the factual inquiry differently.” Brunson v. Astrue, 2011 WL 2036692, 2011 U.S.

Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).

II. The ALJ’s Decision

The ALJ issued a partially favorable decision. More specifically, at step one, the

ALJ found that Stevenson has not engaged in substantial gainful activity since April 25,

2016, the onset date. (R. 20) At step two, the ALJ concluded that, from April 25, 2016

through October 3, 2017, Stevenson suffers from the following severe impairments:

heart palpitations, hypertension, back pain, sacral insufficiency fracture, Barrett’s

esophagitis, hiatal hernia, gastroparesis with vomiting, migraine cephalgia, cervical

spondylolisthesis, mild degenerative changes of the lumbar spine, and osteoporosis. (R.

20). At step three, the ALJ determined that, from April 25, 2016 through October 3,

2017, Stevenson did not have an impairment or combination of impairments that meets

or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (R. 21) Between steps three and four, the ALJ decided that, from April 25,

2016 through October 3, 2017, Stevenson had the residual functional capacity (“RFC”)

to perform light work with certain restrictions. (R. 21-23) The ALJ further found that,

during that same period, Stevenson was unable to perform any past relevant work and

was an individual closely approaching advanced age. (R. 23) Ultimately, at the fifth step

of the analysis, the ALJ concluded that, during that same time frame, considering

Stevenson’s age, education, work experience, and RFC, jobs exist in significant

numbers in the national economy that she could have performed. (R. 23-24)

Consequently, he found Stevenson to be under a disability as defined by the SSA from

April 25, 2016 through October 3, 2017. (R. 24)

The ALJ then determined that a medical improvement occurred as of October 4,

2017 and that the improvement increased her residual functional capacity. (R. 25) As a

result, beginning on October 4, 2017, Stevenson was able to perform the full range of

light work and there are jobs that exist in significant numbers in the national economy

that she can perform. Therefore, Stevenson’s disability ended on October 4, 2017. (R.

28)

III. Discussion

1. Due Process Violation

As stated above, Stevenson requested review of the ALJ’s decision by the Appeals

Council. The Appeals Council will review a case in limited circumstances, including,

where there is additional evidence that is new, material, relates to the period at issue,

and there is a reasonable probability that the evidence would change the outcome of

the ALJ’s decision. Additionally, the claimant must demonstrate that he/she had “good

cause” for not submitting the evidence earlier. 20 C.F.R. 416,1470(a)(4), 404.970(a)(4).

Here, Stevenson proffered an additional 450 pages of medical records to the Appeals

Council in connection with her request for review, presumably urging that new evidence

would change the outcome of the case.

The Appeals Council denied the request for review. (R. 1) It explained that the

additional evidence did “not show a reasonable probability that it would change the

outcome of this decision.”1 (R. 2) The Appeals Council omitted the materials from the

official administrative record. (R. 2) Stevenson alleges that the failure to include such

materials gives rise to a due process violation because it prevents this Court from

determining whether the Appeals Council erred in denying her Request for Review. See

ECF Docket No. 14, p. 9.2

Stevenson’s claim is foreclosed. In the Third Circuit, where the Appeals Council is

presented with additional evidence yet denies a claimant’s request for review, the

district court is foreclosed from reviewing the Appeals Council’s decision. See Matthews

v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001). According to the Third Circuit, the ALJ’s

decision constitutes the “final decision” and no statutory authority “authorizes a federal

court to review a decision by the Appeals Council denying a claimant’s request for

review.” Castile v. Astrue, Civ. No. 10-210, 2011 WL 4102539, at * 4 (W.D. Pa. Sept.

14, 2011), citing Matthews, 239 F.3d at 594. See also, Cox v. Astrue, Civ. No. 9-1334,

2010 WL 1976871, at * 9 (W.D. Pa. May 17, 2010) (stating that “[t]he Court

acknowledges that the documentary evidence … was submitted to the Appeals Council

prior to the denial of Cox’s request for review. … As noted earlier, however, the Court

has no jurisdiction to review that denial.”), citing, Browning v. Sullivan, 958 F.2d 817,

822-23 (8th Cir. 1992) Had the Appeals Council granted Stevenson’s request for review

and then issued its own decision denying her application, this Court would be able to

1 The Appeals Council determined that records from the Care Center dated May 21, 2018 through May 22, 2018

were created after the date of the ALJ decision and did not “relate to the period at issue.” (R. 2)

2 It is well-settled that my review of the ALJ’s decision is limited to the evidence that was before him / her.

Therefore, pursuant to Sentence Four of 42 U.S.C. 405(b), I cannot look at post-decision evidence that was not first

submitted to the ALJ. However, where a claimant proffers evidence that was not previously presented to the ALJ a

district court may remand pursuant to Sentence Six of 42 U.S.C. 405(g). Remand is appropriate only when the

evidence is new and material and supported by a demonstration of good cause for not having submitted the evidence

before the decision of the ALJ. See Matthews v. Apfel, 239 F.3d 589, 591-93 (3d Cir. 2001), citing, Szubak v. Sec’y.

of Health and Human Services, 745 F.2d 831, 833 (3d Cir. 1984). Here, Stevenson has not requested a remand

pursuant to Sentence Six. Indeed, Stevenson has not supplied any additional evidence to this Court.

assess whether the Appeals Council’s decision was supported by substantial evidence

of record. Cox, 2010 WL 1976871, at * 9, citing, Eads v. Secretary of the Dept. of Health

& Human Services, 239 F.3d 815, 817 (7th Cir. 1993).

I recognize that there is a split of authority among the federal Courts of Appeals on

this issue. See Castille, 2011 WL 4102539, at * 4 and Cox, 2010 WL 1976871, at * 9.

See also, Brewes v. Commissioner of Social Security Administration, 682 F.3d 1157 (9th

Cir. 2012) (relying on 20 C.F.R. § 404.970(b) in holding that evidence first considered

by the Appeals Council becomes part of the administrative record available for review

by the district court even where the Appeals Council denies review); Higginbotham v.

Barnhart, 405 F.3d 332, 336-337 (5th Cir. 2005); Perez v. Chater, 77 F.3d 41, 45 (2nd

Cir. 1996); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994); Nelson v. Sullivan, 966

F.2d 363, 368 n. 5 (8th Cir. 1992) (same); Ingram v. Comm’r. of Soc. Sec. Admin., 496

F.3d 1253, 1258 (11th Cir. 2007) (reaching the same conclusion but basing that

conclusion on 42 U.S.C. § 405(g); Wilkins v. Secretary of DHHS, 953 F.2d 93, 96 (4th

Cir. 1991) (en banc) (same). Compare with Matthews, 239 F.3d, 589, 594 (3d Cir.

2001); Mills v. Apfel, 244 F.3d 1, 4-5 (1st Cir. 2001), (concluding that the administrative

record before the district court consists only of the evidence presented to the ALJ) reh’g

en banc denied, cert. denied, 534 U.S. 1085 (2002) and Eads v. Sec’y. of the Dep’t. of

Health & Human Servs., 983 F.2d 815, 817-18 (7th Cir. 1993). The lack of uniformity

among circuits is problematic and results in a claimant’s appeals prospects differing

depending upon where that claimant is situated. Although I find the reasoning of the

Second, Fourth, Fifth, Eight, Ninth, Tenth and Eleventh Circuits to be persuasive, I am

bound by precedent. Because the Appeals Council denied review, the “final decision” at

issue before me is that issued by the ALJ and the additional evidence Stevenson

proffered to the Appeals Council need not have been incorporated into the

administrative record. Consequently, there is no due process violation.

2. Severe Impairment

Stevenson next argues that the ALJ erred in his evaluation of her severe

impairments. The ALJ found that Stevenson’s severe impairments were physical in

nature. (R. 20, 24) Yet Stevenson insists that she suffers from severe mental health

impairments as well. The record indicates that Stevenson did allege impairment based

upon, among other things, anxiety. (R. 77) She testified about depression, panic attacks

and anxiety. (R. 47-48, 59-61, 66-68) Further, the administrative record contained

information regarding Stevenson’s mental health. (R. 85-87, 757-83) The results of

Stevenson’s mental status evaluation are set forth in the record and include a diagnosis

of depressive disorder and adjustment disorder. (R. 445-46)

The ALJ makes no mention of these mental health impairments in his evaluation at

step two of the analysis. In fact, the entire analysis at the second step consists of a

single sentence.3 I find the failure to acknowledge Stevenson’s claim of severe mental

impairments to be troublesome.

Typically, any error in failing to find a severe impairment at the second step of the

analysis would constitute a “harmless error” if the ALJ continued with the analysis. See

Salles v. Comm’r. of Soc. Sec., 229 Fed. Appx. 140, 145 n. 2 (3d Cir. 2007) (stating

that, “[b]ecause the ALJ found in Salle’s favor at Step Two, even if he had erroneously

3 After identifying the severe physical impairments in one sentence, the ALJ writes, “[t]he above medically

determinable impairments significantly limit the ability to perform basic work activities as required by SSR 85-28.”

(R. 21) See also (R. 24, “The claimant has not developed any new impairment or impairments since October 4, 201,

the date the claimant’s disability ended. Thus, the claimant’s current severe impairments are the same as that present

from April 25, 2016 through October 3, 2017.”)

concluded that some of her other impairments were non-severe, any error was

harmless.”) However, when fashioning an RFC, the ALJ must consider all impairments,

whether severe or not. See Lopez v. Berryhill, Civ. No. 15-4175, 2019 WL 1930164, at *

2 (May 1, 2019), citing, 20 C.F.R. §§ 404.1545(a)(2); 416.945(a)(2). Here, the ALJ

acknowledges that Stevenson reports intrusive thoughts, nightmares and anxiety

attacks. (R. 26) The record also contains evidence that Stevenson was on medication

for anxiety and depression. (R. 759-760) Yet the ALJ fails to mention this. Moreover,

there is no analysis of any accompanying opinion evidence. Rather, without any further

discussion, the ALJ states that “little weight is given to the opinion of the psychological

consultative examiner (Exhibit 16F) based upon the claimant’s lack of ongoing

treatment and wide range of daily activities.” (R. 27) Nor does the ALJ provide the

missing analysis elsewhere in the opinion. Indeed, the analysis at step three is similarly

wanting. (R. 21, 24) The ALJ offers nothing more than a conclusion that Stevenson’s

mental impairments do not satisfy any of the Listings set forth in Appendix 1. (R. 21, 24)

Given the absence of meaningful analysis of Stevenson’s mental impairments, I cannot

assure myself that the decision to reject the impairments as “not severe” at the second

step of the analysis is harmless error, particularly when the ALJ does not analyze those

impairments elsewhere in the opinion. Consequently, this case must be remanded for a

thorough consideration of Stevenson’s mental health impairment(s). In remanding, I do

not mean to suggest that the decision denying benefits is incorrect, only that, based

upon the record before me, I cannot assure myself that the ALJ’s basis for denying

benefits is appropriate.4

4 Because of my decision to remand on this issue, I need not address Stevenson’s other arguments in support of

remand.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TERRI LEE STEVENSON )

Plaintiff, )

)

-vs- ) Civil Action No. 18-1304

)

ANDREW M. SAUL, )

)

Defendant. )

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 7th day of January, 2020, it is hereby ORDERED that the

Plaintiff’s Motion for Summary Judgment (Docket No. 13) is GRANTED and the

Defendant’s Motion for Summary Judgment (Docket No. 15) is DENIED. It is further

ORDERED that this case be REMANDED for further consideration consistent with the

Opinion set forth above.

BY THE COURT:

/s/ Donetta W. Ambrose

Donetta W. Ambrose

United States Senior District Judge