United States District Court, D. Utah
B. PEAD UNITED STATES MAGISTRATE JUDGE.
parties consented to this court's jurisdiction under 28
U.S.C. 636(c). (ECF No. 13.) Currently pending before the
court is Plaintiff Shannon Archibald Gilson's
(“Plaintiff”) appeal of the Commissioner of
Social Security's (“Commissioner”) decision
denying Plaintiff's claim for Disability Insurance
Benefits and Supplemental Social Security Income. The court
initially scheduled argument for March 9, 2017. (ECF No. 31.)
After reviewing the record, the court determined oral
argument was not necessary and struck the hearing. (ECF No.
33.) Having considered the parties' briefs, the
administrative record, and the relevant law, this court
AFFIRMS the Commissioner's decision.
applied for Social Security Disability Insurance Benefits and
Supplemental Social Security Income in August 2012. (Tr.
195-240.) Plaintiff's initial application was denied.
(Tr. 125-30, 135-40.) On July 24, 2014, ALJ Maryanne
Lunderman issued her decision denying benefits to Plaintiff.
(Tr. 28-41.) The Appeals Council denied Plaintiff's
request for review, making it the agency's final
decision. (Tr. 1-5.) Plaintiff then filed the present suit.
was 40 years old on her alleged onset date in January 2010.
(Tr. 225.) Plaintiff completed high school in 1987. (Tr.
853.) She completed cosmetology school in 1996. (Tr. 250,
853.) Plaintiff previously worked as a nail technician. (Tr.
250.) Plaintiff's medical records show she visited the ER
in 2008, where she underwent a crisis evaluation for suicidal
ideation. (Tr. 408.) Plaintiff was also psychiatrically
admitted to two hospitals in 2008. (Tr. 1652-82, 1683- 96.)
There is a gap in the medical records for nearly three years
until January 2011, when Plaintiff was psychiatrically
admitted to the hospital, again with suicidal ideation.
During this January 2011 visit, she was diagnosed with
bipolar affective disorder, generalized anxiety disorder,
dysthymia, panic disorder with agoraphobia, and alcohol abuse
with the possibility of opiate abuse. (Tr. 383.) She was
discharged two weeks later and appeared “both
physically and psychiatrically stable.” (Tr. 390.) In
July 2011 Plaintiff received outpatient treatment for
depression and migraines. Both conditions appear to have been
successfully treated with medication. (Tr. 596-97, 690,
889-90.) In February 2012, Michael H. Sumko, D.O., evaluated
Plaintiff for bilateral numbness and tingling in her hands
consistent with carpel tunnel syndrome. (Tr. 1699.) While Dr.
Sumko initially recommended conservative treatment, he
performed surgery in April 2012. (Tr. 961.) After the
surgery, Plaintiff's numbness and tingling abated, but
she complained of pain from her small finger to her elbow.
(Tr. 816-18.) Dr. Sumko referred Plaintiff to a pain clinic,
but she declined to go. (Tr. 818.) Finally, during 2013
Plaintiff received treatment for various back pains, mental
disturbances,  and migraines, all of which appear to have
been successfully treated with medications. (Tr. 1076-1282.)
STATEMENT OF RELEVANT LAW
Definition of Disability Under the Act
states that an individual is disabled “only if his
physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy . . . .” 42
U.S.C. § 423(d)(2)(A). The disabling impairment must
last, or be expected to last, for at least twelve consecutive
months. Id.; Barnhart v. Walton, 535 U.S.
212, 214-15 (2002).
Process for Determining Disability Under the Act
determine whether a claimant is disabled, Social Security
regulations set forth a five-step sequential evaluation
process. The adjudicator considers whether a claimant: (1)
engaged in substantial gainful activity during the alleged
disability period, (2) had a severe impairment, (3) had a
condition that met or medically equaled the severity of a
listed impairment, (4) could return to his past relevant
work, and if not (5) could perform other work in the national
economy. 20 C.F.R. § 404.1520(a)(4). If a decision
regarding the claimant's disability can be reached at any
step in the sequential evaluation process, further evaluation
is unnecessary. Id.
Standard of Review
district court reviews the Commissioner's decision to
determine whether substantial evidence in the record as a
whole supports the factual findings, and whether the correct
legal standards were applied. Hendron v. Colvin, 767
F.3d 951, 954 (10th Cir. 2014). Substantial evidence
means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Id. The court may neither reweigh the evidence nor
substitute its judgment for that of the ALJ. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Where the
evidence as a whole can support the agency's decision or
an award of benefits, the court must affirm the agency's
decision. Ellison v. Sullivan, 929 F.2d 534, 536
(10th Cir. 1990).
THE ALJ'S DECISION
one, the ALJ found that Plaintiff had not been engaged in
substantial gainful activity since her alleged onset date,
January 2, 2010. (Tr. 30.) The ALJ also found that Plaintiff
suffered from four severe impairments: bilateral carpal
tunnel syndrome, migraine headaches, degenerative disc
disease of the lumbar spine, and a mental impairment
variously diagnosed to include several disorders (including
post-traumatic stress disorder, bi-polar disorder,
generalized anxiety disorder, and alcohol abuse in alleged
remission). (Id.) At step three, the ALJ determined
that Plaintiff did not suffer from an impairment that met the
criteria of any listed impairment, or was the medical
equivalent of a listed impairment. (Id.) At step
four, the ALJ found Plaintiff could not perform her past
relevant work. (Tr. 40.) At step five, the ALJ found
Plaintiff was capable of performing work that existed in the
national economy. Thus, the ALJ found Plaintiff not disabled.
alleges four primary errors on appeal. First, Plaintiff
alleges the ALJ failed to review certain materials submitted
after the administrative hearing. Second, Plaintiff contends
that the ALJ did not properly consider Dr. Kimberly
Page's opinions. Third, Plaintiff argues the ALJ did not
consider all of Plaintiff's impairments when determining
Plaintiff's RFC (residual functioning capacity). Fourth,
Plaintiff argues the ALJ's credibility determination is
not supported by substantial evidence. The court will examine
these arguments in the order raised.
The ALJ reviewed the necessary materials submitted
argues that the ALJ and Appeals Council did not properly
consider evidence Plaintiff submitted after the
administrative hearing. Plaintiff argues she is entitled to
remand under Threet v. Barnhart, 353 F.3d 1185, 1191
(10th Cir. 2003). Under Threet, remand is
appropriate when evidence submitted for the first time to the
Appeals Council is (1) new, non-cumulative; (2) material
(meaning likely to change the ...