Berensen v. Commissioner, SSA

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 13, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ERIC BERENSEN,
Plaintiff - Appellant,
v. No. 18-4105
(D.C. No. 2:17-CV-00081-DBP)
COMMISSIONER, SSA, (D. Utah)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
This appeal grows out of the Social Security Administration’s denial
of disability insurance benefits and Supplemental Security Income
benefits. The administrative law judge found no disability, and
Mr. Eric Berensen sought review by the Appeals Council, presenting
additional medical records in support. The Appeals Council declined
*
The parties do not request oral argument, and it would not materially
help us to decide this appeal. We have thus decided the appeal based on the
appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
review, and Mr. Berensen appealed in federal district court, again
presenting new medical records and requesting (in the alternative) a
remand to the agency. There he argued that
 the administrative law judge had lacked substantial evidence
for some of her findings and
 the Appeals Council and district court had failed to properly
consider the new medical records.
We reject these arguments and affirm.
1. The administrative law judge assesses Mr. Berensen’s residual
functional capacity.
The administrative process includes an assessment of the claimant’s
“residual functional capacity,” which refers to what the claimant can do
with his or her physical and mental limitations. 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). In determining the residual functional
capacity, the administrative law judge considers all of the claimant’s
impairments, including those that are and aren’t severe, and determines
whether the claimant can perform either past relevant work or other jobs in
the national economy. 20 C.F.R. §§ 404.1545(a), 416.945(a).
Through this process, the administrative law judge found in February
2016 that Mr. Berensen could perform light work subject to restrictions on
(1) various activities, including balancing, stooping, crouching, kneeling,
crawling, climbing, reaching, handling, fingering, feeling, and pedaling,
(2) exposure to noise, heat, cold, concentrated airborne irritants, extreme
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vibrations, and hazards, and (3) work pace. Given the ability to perform
light work with these restrictions, the administrative law judge found that
Mr. Berensen was not disabled because he could perform a significant
number of jobs existing in the national economy.
Mr. Berensen sought review by the Appeals Council and submitted
more medical evidence. But the Appeals Council declined to consider the
new evidence or to review the administrative law judge’s decision.
Mr. Berensen then appealed to the federal district court and
requested a remand, in the alternative, based on additional medical records.
The district court affirmed and denied Mr. Berensen’s request for a
remand.
2. The assessment of residual functional capacity is supported by
substantial evidence.
The threshold issue involves the administrative law judge’s findings
as to residual functional capacity. Mr. Berensen challenges these findings,
arguing that the administrative law judge failed to consider non-severe
impairments and misevaluated the vocational testimony. We reject both
challenges.
In evaluating these challenges, we consider whether the
administrative law judge applied correct legal standards and had
substantial evidence to support the findings as to residual functional
capacity. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). In
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determining whether substantial evidence existed, we cannot reweigh the
evidence or substitute our judgment for the administrative law judge’s.
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). We conclude
that the administrative law judge had substantial evidence for her findings.
We first reject Mr. Berensen’s argument that the administrative law
judge failed to consider non-severe impairments. The judge said that she
had considered all of the non-severe impairments, and we have no reason
to question her statement. See Flaherty v. Astrue, 515 F.3d 1067, 1071
(10th Cir. 2007) (stating that we generally take the Social Security
Administration at its word when it states that it has considered a particular
matter). Indeed, the administrative law judge appeared to rely on
non-severe impairments when imposing postural and exertional restrictions
on Mr. Berensen’s residual functional capacity.
We also conclude that the administrative law judge did not overlook
the vocational testimony. Mr. Berensen points out that the judge asked the
vocational expert a series of hypothetical questions on the availability of
jobs based on a variety of possible limitations. But the vocational expert’s
expertise involves vocational opportunities, not a claimant’s residual
functional capacity. The administrative law judge ultimately assessed the
residual functional capacity and matched that capacity to the vocational
expert’s testimony on the available jobs that Mr. Berensen could perform.
Mr. Berensen does not identify any mismatch between the findings on
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residual functional capacity and the vocational expert’s testimony. We thus
have no reason to disturb the administrative law judge’s consideration of
the vocational testimony.
3. The Appeals Council and district court did not err in declining to
consider the additional medical records.
Mr. Berensen submitted additional records to both the Appeals
Council and the district court. For the Appeals Council, Mr. Berensen had
to show that the records were new, material, and related to the period
preceding the administrative law judge’s decision. Chambers v. Barnhart,
389 F.3d 1139, 1142 (10th Cir. 2004). And for the district court,
Mr. Berensen had to show (1) that the records were new and material and
(2) that good cause existed for the failure to present the records in the
administrative proceedings. Wilson v. Astrue, 602 F.3d 1136, 1148-49
(10th Cir. 2010).
The Appeals Council declined to consider the additional records.
Some of them involved treatment from 1991 to 2013. Other records
pertained to treatment and laboratory findings beginning roughly a month
after the administrative law judge’s decision. For the records from 1991 to
2013, the Appeals Council stated that the new records did not provide a
basis to disturb the administrative law judge’s decision. For the records
post-dating the administrative law judge’s decision, the Appeals Council
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stated that the records did not pertain to Mr. Berensen’s condition during
the relevant time-period.
We conduct de novo review over these reasons for declining to
consider the new medical evidence. Chambers v. Barnhart, 389 F.3d 1139,
1142 (10th Cir. 2004). Applying de novo review, we conclude that the
Appeals Council did not err. Mr. Berensen has not identified any additional
functional limitations shown in the 1991-2013 medical records. And the
records post-dating the administrative law judge’s decision do not address
what Mr. Berensen’s condition had been prior to that decision. Indeed,
even for these records, Mr. Berensen has not identified any functional
limitations overlooked by the administrative law judge.
Mr. Berensen also submitted more medical evidence to the district
court, seeking a remand to the agency. The district court declined to order
a remand, and we review that decision for an abuse of discretion. Wilson v.
Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). In applying the
abuse-of-discretion standard, we consider whether the district court’s
determination fell within the realm of rational choices. Madron v. Astrue,
646 F.3d 1255, 1257 (10th Cir. 2011).
In our view, the district court acted within its discretion in
determining that the new records were immaterial. Here too Mr. Berensen
has not identified any diagnoses or opinions involving (1) his condition
prior to the administrative law judge’s decision or (2) functional
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limitations overlooked by the administrative law judge. Mr. Berensen also
failed to explain why he could not have presented the medical evidence to
the Appeals Council. As a result, the district court acted within its
discretion in determining that Mr. Berensen had failed to show good cause
for failing to submit the evidence to the Appeals Council.
4. Conclusion
We conclude that Mr. Berensen has not shown any errors in the
administrative law judge’s assessment of residual functional capacity, in
the Appeals Council’s refusal to consider the new medical evidence, or in
the district court’s refusal to remand the matter based on new medical
evidence. We thus affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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