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Tammy L v. Berryhill

United States District Court, D. Utah, Central Division

October 22, 2018

Tammy L, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant.



         Plaintiff, Tammy L, appeals the Commissioner's denial of her application for disability benefits under Title II of the Social Security Act.[1] The court determines the Appeals Council erred in rejecting Ms. L's new evidence. Therefore, discerning reversible error, the court reverses and remands this matter for further consideration in accordance with the court's decision.


         Ms. L[2] filed for benefits in April 2014 alleging she because disabled beginning May 30, 2012. Plaintiff alleges she is disabled and unable to work due to a variety of conditions. These include a severe anxiety disorder, a back injury, PTSD[3], neuropathy in her feet, panic attacks, depression, IBS[4] and a severe gastrointestinal condition.[5] To establish disability, Ms. B must show that she has an

inability 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 ….”[6]

         Following an initial denial of benefits, Ms. L requested and received a hearing before an administrative law judge (ALJ). The ALJ followed the required five-step sequential evaluation process[7] and found Ms. L had the severe impairments of lumbar spondylosis, peripheral neuropathy, major depressive disorder, generalized anxiety disorder, panic disorder and PTSD.[8]The ALJ found Plaintiff had the residual functional capacity (RFC) to perform light work with certain additional limitations. After considering the medical evidence, the ALJ found at Step Four that Ms. L could not perform her past work as a certified nursing assistant, customer service representative or residence supervisor. At Step Five, however, the ALJ found Ms. L could perform other jobs that exist in significant numbers in the national economy. These include a Marker, Routing clerk and Mail clerk. Thus, she was not disabled.

         Following the ALJ's denial of her application for benefits, Plaintiff submitted additional evidence for the Appeals Council to review. After the Appeals Council denied review, the ALJ's decision became the final decision of the Commissioner. Ms. L sought review of this decision and raises one question on appeal: did the Appeals Council err by failing to properly consider the additional evidence she submitted?


         The court reviews the Commissioner's “decision only to determine whether the correct legal standards were applied and whether the factual findings are supported by substantial evidence in the record.”[9] Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.”[10] “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.”[11] Thus, the court may not “'displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'”[12]


         Ms. L raises one issue on appeal, did the Appeals Council err by failing to evaluate the additional opinion evidence she submitted after the ALJ issued his decision? The ALJ issued a decision denying benefits on December 13, 2016.[13] Subsequent to the decision, Ms. L requested Appeals Council review and submitted additional evidence. Plaintiff “submitted an opinion from Wayne Moss, M.D., dated February 16, 2017 (7 pages) and an opinion from Victor Baumgarten, LCSW, dated February 16, 2017 (7 Pages).”[14] The Appeals Council declined to review this additional evidence stating “[t]his additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before December 13, 2016.”[15]

         In O'Dell v. Shalala, [16] the Tenth Circuit considered whether appellate review for substantial evidence is restricted to the evidence before the ALJ, or whether new evidence submitted to the Appeals Council, becomes part of the administrative record for review. The O'Dell court discussed the conflicting case law among the circuits[17] and ultimately chose to “join the Fourth, Eighth, Ninth, and Eleventh Circuits, in holding that the new evidence becomes part of the administrative record to be considered when evaluating the Secretary's decision for substantial evidence.”[18] Thus, in the Tenth Circuit, the Appeals Council is to consider new evidence because it is part of the administrative record.

         The Appeals Council review process is guided by the framework set forth in 20 C.F.R. § 404.970.[19] This section provides:

(a) The Appeals Council will review a case if-
(1) There appears to be an abuse of discretion by the ...

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