Noreja v. Commissioner, SSA ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 5, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ARTHUR NOREJA,
Plaintiff - Appellant,
v. No. 18-1383
COMMISSIONER, SSA,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CV-02047-CMA)
_________________________________
Lawrence D. Saunders, Pueblo, Colorado, appearing for Appellant.
Noah M. Schabacker, Special Assistant United States Attorney, Assistant Regional
Counsel, Social Security Administration, Denver, Colorado (Jason R. Dunn, United
States Attorney, Office of the United States Attorney for the District of Colorado,
Denver, Colorado, and Mona Ahmed, Acting Regional Chief Counsel, Office of the
General Counsel, Region VIII, Social Security Administration, Denver, Colorado, with
him on the briefs), appearing for Appellee.
_________________________________
Before BRISCOE, LUCERO, and EID, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Arthur Noreja appeals the denial of his claim for disability benefits. Noreja
alleges that the Administrative Law Judge (“ALJ”) failed to follow an instruction in a
remand order from the Appeals Council, the entity responsible for adjudicating
administrative appeals in Social Security cases. We hold that (1) we have jurisdiction to
determine whether an alleged ALJ violation of an Appeals Council order warrants
reversal; but (2) our “usual” review standards remain in force, meaning that the alleged
violation is material only if it shows the ALJ meaningfully failed to apply the correct
legal standards, or the denial of benefits is unsupported by substantial evidence; and (3)
applying those standards here, the ALJ’s denial of Noreja’s application must be affirmed.
I
Noreja filed his disability claim in March 2012. Volume I, Administrative Record
(“I Admin. R.”) at 129. In July 2013, following a hearing, an ALJ issued a detailed
written order – exceeding 13 pages with single spacing – in which she denied Noreja’s
claim. Id. at 129–42. After summarizing the five-step process for determining disability,
id. at 129–31, the ALJ stated that Noreja had several severe impairments, including
“arthritis of the left upper extremity and right lower extremity,” “cognitive disorder,” and
“headaches.” Id. at 131 (emphasis omitted). Nevertheless, the ALJ determined that these
impairments (or a combination of the impairments) did not warrant relief under 20 C.F.R.
part 404, subpart P, appendix 1. Id. at 132. Among other things, the ALJ found that “the
claimant’s mental impairment does not meet or medically equal the criteria of listing
1202.” Id. at 133–34. The ALJ also found that Noreja had the residual functional
capacity (“RFC”) to do “medium” work, subject to various limitations, and that there
were “jobs that exist in significant numbers in the national economy” which Noreja could
perform. Id. at 134, 141 (emphasis omitted). The ALJ considered various sources of
2
medical evidence, including (1) assessments provided by Dr. Michael A. Dallenbach
following Noreja’s involvement in a car accident in February 2011, id. at 135–36; (2) a
June 2012 “consultative examination” of Noreja by Kent J. Lofley, D.O., which qualified
Noreja’s limitations, id. at 136, 138; (3) a June 2013 “psychological examination” of
Noreja by Richard B. Madsen, Ph.D., which supported a finding of cognitive impairment,
id. at 136–37; (4) a May 2013 questionnaire filled out by one of Noreja’s primary care
physicians, Dr. Ben Martinez, id. at 139; and (5) a review of Noreja’s case file by James
J. Wanstrath, Ph.D. Id. at 139–40. The ALJ evaluated the evidence, decided that Dr.
Madsen’s opinion was entitled to “little weight,” and concluded that Noreja was not
cognizably disabled. Id. at 136–40, 142.
Noreja asked the Appeals Council to review the ALJ’s July 2013 decision. The
Appeals Council obliged, and in March 2015 issued a written order vacating the ALJ’s
decision and remanding the case for further proceedings. Id. at 149–50. The Appeals
Council noted that the ALJ neither adopted the limitations identified by Dr. Madsen, nor
assigned Dr. Madsen’s opinion significant weight, because according to the ALJ, Dr.
Madsen did not “have a treating relationship with the claimant, apparently relied quite
heavily on subjective complaints, and only examined the claimant to generate evidence
for his disability claim.” Id. at 149. The Appeals Council disagreed with the ALJ’s
assessment, stating not only that “[i]t does not appear Dr. Madsen had to rely on
subjective complaints to form his opinion,” but also that Dr. Madsen’s “objective exam
results” showed Noreja had multiple cognitive impairments. Id. The Appeals Council
observed that “[i]f Dr. Madsen’s opinion merits less weight based on the manner by
3
which it was obtained, then these results should be confirmed or contradicted by impartial
consultative examination.” Id. The Appeals Council then issued this directive:
Upon remand the Administrative Law Judge will:
 Obtain additional evidence concerning the claimant’s mental
impairments in order to complete the administrative record in
accordance with the regulatory standards regarding consultative
examinations and existing medical evidence (20 CFR 404.1512-
1513 and 416.912-913). The additional evidence should include, if
available, a consultative mental examination with psychological
testing and medical source statements about what the claimant can
still do despite the impairment.
Id. at 149–50 (bullet in original).
The case was remanded to the same ALJ, who held another hearing. Id. at 11–12.
In May 2016, the ALJ issued another detailed written order, this time exceeding 17
single-spaced pages, denying Noreja’s claim. Id. at 11–28. After again summarizing the
five-step procedure for determining disability, id. at 12–14, the ALJ expanded the list of
Noreja’s severe impairments to include “right hip and ankle degenerative joint disease,”
“left shoulder degenerative joint disease,” “headaches,” “depressive disorder,” and
“cognitive disorder.” Id. at 14–15 (emphasis omitted). Once more, however, the ALJ
determined that Noreja did not have “an impairment or combination of impairments” that
warranted relief under 20 C.F.R. part 404, subpart P, appendix 1. Id. at 15 (emphasis
omitted). The ALJ found that “the claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the criteria of listings 12.02 and 12.04.”
Id. at 16–17. The ALJ reiterated that Noreja had the RFC to do “medium” work, subject
4
to various limitations, and that there were “jobs that exist in significant numbers in the
national economy” which Noreja could perform. Id. at 17, 27 (emphasis omitted).
The ALJ did not obtain a new consultative mental examination before issuing her
May 2016 decision, but she procured additional evidence regarding Noreja’s
impairments. This additional evidence included further mental health treatment records
(e.g., id. at 22–23) and (1) an assessment of Noreja by Dr. Timothy Papsidero, id. at 20,
23; (2) a June 2013 neurological evaluation of Noreja by Dr. Richard Gamuac, id. at 20–
21; (3) an initial evaluation of Noreja for purposes of therapy by Lesli St. John, id. at 23–
24; and (4) testimony from James Bruce, Ph.D., who opined that Noreja’s mental health
impairments “include listings 12.02 and 12.04” but Noreja “would be able to perform
simple tasks” in an environment involving “occasional and superficial contact” with co-
workers and the public. Id. at 18, 24–25. In light of the overall record, id. at 18–26, the
ALJ reaffirmed her decision to afford Dr. Madsen’s opinion “little weight.” Id. at 23, 25.
In contrast, the ALJ assigned “great weight” to Dr. Bruce’s assessment, as Dr. Bruce was
“a mental health specialist” who “had the opportunity to evaluate the complete record”
and to “hear the claimant’s testimony.” Id. at 25. The ALJ assigned “great weight” to
Dr. Lofley’s assessment of Noreja as well. Id. at 21 (brackets added). For a second time,
the ALJ found no disability under the governing legal standards. Id. at 26, 28.
Noreja asked the Appeals Council to review the ALJ’s May 2016 decision. The
Appeals Council denied Noreja’s second request for review. In a July 2017 written order,
the Appeals Council explained that it “found no reason” to examine the ALJ’s decision
under Appeals Council rules, which rules permitted review for an abuse of discretion, an
5
error of law, a lack of substantial evidence, a “broad policy or procedural issue that may
affect the public interest,” or significant new evidence. Id. at 1–2. The Appeals Council
eschewed a second review of Noreja’s case based on the ALJ’s alleged noncompliance
with the remand order, stating as follows:
[Y]our representative alleged that the Administrative Law Judge failed to
comply with the prior order of remand and that this demonstrates bias and
lack of basic due process (Exhibit 19E/2). The Appeals Council considered
the allegations solely as they relate to abuse of discretion. After reviewing
the entire record, including the hearing recording, the Appeals Council
determined that the Administrative Law Judge did not abuse his or her
discretion in this case and that none of the other reasons in our rules existed
to review your case.
Id. at 1 (brackets added).
Noreja appealed to federal district court. Appellant’s Appendix at 4–5. The
district court affirmed the decision of the Commissioner of Social Security (the
“Commissioner”), as reflected in the ALJ’s May 2016 order. Id. at 48, 79. The district
court concluded that the Appeals Council “left the decision up to the ALJ as to whether
she deemed another consultative mental examination with psychological testing
necessary.” Id. at 67; see also id. (“[A] review of the Appeals Council’s remand order
makes clear that it did not order the ALJ to obtain a consultative mental examination; it
merely determined that additional evidence was required to support the ALJ’s assignment
of little weight to Dr. Madsen’s opinion.”). The district court emphasized that the ALJ on
remand “obtained additional evidence sufficient to complete the administrative record,”
including Dr. Bruce’s opinion on Noreja’s mental impairments and “several more
specific pieces of evidence that do not support the level of limitations that Dr. Madsen
6
described.” Id. at 68. Noting the Appeals Council’s decision in July 2017 to decline
further review, the district court added that “the Appeals Council was apparently satisfied
that the ALJ complied with its remand order.” Id. at 69. The district court rejected
Noreja’s remaining arguments that the ALJ improperly accorded no weight to Dr.
Martinez’s opinions, id. at 65, 69–73; failed to include all of the work restrictions
identified by Dr. Bruce, id. at 65, 74–76; and erroneously gave minimal weight to the
opinions of Dr. Madsen. Id. at 65, 76–79.
II
We have previously addressed the import of an ALJ’s failure to follow a directive
from an Appeals Council, but only in unpublished dispositions. Tenth Circuit Rule
32.1(A) provides that “[u]npublished decisions are not precedential, but they may be
cited for their persuasive value.” Our case law generally follows that principle, looking
in appropriate circumstances to an unpublished opinion if its rationale is persuasive and
apposite to the issue presented. See, e.g., United States v. Engles, 779 F.3d 1161, 1162
n.1 (10th Cir. 2015) (stating that “[a]lthough unpublished orders and opinions generally
are not considered binding precedent,” such an order or opinion “may be relied on for the
purpose of disposing the issue presented if it has persuasive value with respect to a
material issue in a case and would assist the court in its disposition”); United States v.
Lyons, 510 F.3d 1225, 1233 n.2 (10th Cir. 2007) (mentioning an unpublished decision “as
we would an opinion from another circuit, persuasive because of its reasoned analysis”).
One of our first notable references to ALJ compliance with an Appeals Council
directive was in Scott v. Chater, 70 F.3d 1282 (10th Cir. Nov. 24, 1995) (unpublished).
7
There, an ALJ denied benefits but the Appeals Council remanded the matter with
instructions. Id. at *1. The ALJ then denied benefits a second time. Id. We reversed
and remanded, holding that the ALJ improperly assessed the evidence. Id. at *2–5. We
concluded that “the ALJ’s decision was not supported by substantial evidence, was not
reached by application of the proper rules, and did not comply with the directives of the
Appeals Council on remand.” Id. at *6. After Scott, we issued several more opinions
implying that a federal court has the authority to evaluate ALJ compliance with an
Appeals Council order. See, e.g., Rice v. Apfel, 242 F.3d 390, *6 & n.1 (10th Cir. Nov.
14, 2000) (unpublished) (holding that an ALJ did not “fail to comply with the remand
instructions of the district court and the Appeals Council,” but noting that any such
instructions were not specific); Gardner-Renfro v. Apfel, 242 F.3d 388, *2 (10th Cir. Dec.
18, 2000) (unpublished) (determining that an ALJ “did not fail to comply with the
remand instructions of the district court or the Appeals Council”); Garza v. Apfel, 162
F.3d 1173, *2 (10th Cir. Nov. 5, 1998) (unpublished) (rejecting the argument that “the
ALJ took action inconsistent with the Appeals Council’s order on remand”).
Our decision in Gallegos v. Apfel, 141 F.3d 1184 (10th Cir. Apr. 10, 1998)
(unpublished) arguably suggested a different approach. Gallegos again involved ALJ
denials of benefits before and after an Appeals Council remand. Id. at *1. We held that a
“challenge to the ALJ’s adherence to the Appeals Council’s remand order is not
cognizable by this court. By statute, our jurisdiction extends only to the Commissioner’s
final decision, which in this case is the ALJ’s second decision.” Id. (citing, among other
things, 42 U.S.C. § 405(g)). We qualified that ruling by noting “Plaintiff does not argue
8
that the ALJ failed to adhere to a legal requirement to obtain additional medical evidence
in reaching her second, final decision, but only that the ALJ did not follow the Appeals
Council’s direction.” Id.A few years later, we decided Miller v. Barnhart, 175 F. App’x 952 (10th Cir.
2006) (unpublished). Unlike in Gallegos, the parties in Miller pointed out that Social
Security regulations require an ALJ to take any action on remand that is ordered by the
Appeals Council. Id. at 955 (citing 20 C.F.R. § 404.977(b)). But we observed in Miller
that the claimant erroneously interpreted the Appeals Council’s instructions, and in a
second administrative appeal, the Appeals Council found that the ALJ “complied with its
remand order.” Id. at 956. “Under these circumstances,” we said, “it is appropriate to
examine the Commissioner’s final decision under our usual standards, rather than
focusing on conformance with the particular terms of the remand order.” Id.
III
The standard for judicial review in Social Security cases is well settled. “Our
review is limited to determining whether the Commissioner applied the correct legal
standards and whether the agency’s factual findings are supported by substantial
evidence.” Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014). We do
not defer to the district court when evaluating the Commissioner’s decision. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (“We review the district
court’s decision de novo and independently determine whether the ALJ’s decision is free
from legal error and supported by substantial evidence.”). “Substantial evidence is more
than a mere scintilla and is such relevant evidence as a reasonable mind might accept as
9
adequate to support a conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). “Evidence is not substantial if it is overwhelmed by other evidence in the record
or constitutes mere conclusion.” Id. at 1261–62 (citation omitted). “We may neither
reweigh the evidence nor substitute our judgment for that of the agency.” Knight, 756
F.3d at 1175 (citation and brackets omitted). “The agency’s failure to apply correct legal
standards, or show us it has done so, is also grounds for reversal.” Hamlin v. Barnhart,
365 F.3d 1208, 1214 (10th Cir. 2004).
No party in this matter challenges the court’s subject matter jurisdiction, but we
are of course required to satisfy ourselves that we have the authority to proceed.
Consistent with our unpublished decision in Miller, 175 F. App’x at 956, we now
reaffirm the use of our usual review standards when considering allegations that an ALJ
failed to comply with an Appeals Council remand order. As discussed below, Congress
specified in 42 U.S.C. § 405(g) that courts are to evaluate denials of Social Security
benefits by ascertaining whether the Commissioner’s decision applies the correct legal
standard and is supported by substantial evidence. An ALJ violates 20 C.F.R.
§§ 404.977(b) and 416.1477(b) when he or she ignores a directive from the Appeals
Council. That violation may or may not render the ALJ’s decision legally or factually
insupportable under 42 U.S.C. § 405(g). It is within our jurisdiction to consider alleged
non-compliance as it pertains to our review under the statute.
The modern jurisprudential trend is toward greater precision in analyzing whether
a statutory provision truly concerns “jurisdiction.” In recent years, the Supreme Court
has undertaken “[t]o ward off profligate use of the term.” Sebelius v. Auburn Reg’l Med.
10
Ctr., 568 U.S. 145, 153 (2013) (brackets added). Noting the overuse of “jurisdictional”
classifications, the high court has emphasized that the word “is generally reserved for
prescriptions delineating the classes of cases a court may entertain (subject-matter
jurisdiction) and the persons over whom the court may exercise adjudicatory authority
(personal jurisdiction).” Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1848 (2019). “If
the Legislature clearly states that a threshold limitation on a statute’s scope shall count as
jurisdictional, then courts and litigants will be duly instructed and will not be left to
wrestle with the issue.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010)
(citation omitted). “But when Congress does not rank a statutory limitation on coverage
as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Id.at 161–62 (citation omitted); see also United States v. Kwai Fun Wong, 575 U.S. 402,
409–10 (2015) (reiterating that the Court has “repeatedly” held procedural rules “cabin a
court’s power only if Congress has clearly state[d] as much,” and without such a clear
statement, “courts should treat the restriction as nonjurisdictional”) (citations omitted,
brackets in original).
The relevant statute in this case is 42 U.S.C. § 405(g). That subsection provides
for “Judicial review” of final decisions of the Commissioner. See id. (“Any individual,
after any final decision of the Commissioner of Social Security made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain review of
such a decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Commissioner of Social
Security may allow.”) The law states that:
11
The court shall have the power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause
for a rehearing. The findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive, and
where a claim has been denied by the Commissioner of Social Security or a
decision is rendered under subsection (b) of this section which is adverse to
an individual who was a party to the hearing before the Commissioner of
Social Security, because of failure of the claimant or such individual to
submit proof in conformity with any regulation prescribed under subsection
(a) of this section, the court shall review only the question of conformity
with such regulations and the validity of such regulations.
Id.Section 405(g) of title 42 may be more than a claim-processing provision, but it
does not strip federal courts of jurisdiction to consider all arguments regarding an ALJ’s
compliance with an Appeals Council order. The statute vests federal tribunals with
authority to hear cases concerning final decisions of the Commissioner denying benefits.
The law dictates the manner in which courts should evaluate such a final decision; courts
are to treat factual findings supported by substantial evidence as “conclusive,” and to
look at regulatory compliance (and the validity of the underlying regulations) when a
claimant’s proof is deemed inadequate. If an ALJ violation of an Appeals Council
remand order does not materially implicate compliance with a proof-related rule or
regulation, then that means the claimant’s challenge to the Commissioner’s decision will
fail on the merits. It does not mean that the court lacks authority to hear the argument in
the first place.
Characterizing any review of ALJ noncompliance as beyond the court’s authority
is inconsistent with the shift toward greater jurisdictional precision. It also invites courts
12
to give this issue the back of the hand, without examining whether a violation of an
Appeals Council remand order materially misapplies legal requirements or robs an ALJ’s
decision of substantial evidence. While some district courts go on to apply these “usual
standards” when confronted with an ALJ’s alleged failure to follow an Appeals Council
order, others invoke a “jurisdictional” argument and refuse to consider the issue at all.
Declining to review the issue at all sweeps too broadly, because an ALJ’s failure
to follow an Appeals Council remand order will often implicate conformity with a proof-
related rule or regulation. An ALJ “shall take any action that is ordered by the Appeals
Council and may take any action that is not inconsistent with the Appeals Council’s
remand order.” 20 C.F.R. §§ 404.977(b), 416.1477(b); see also Hayden v. Barnhart, 374
F.3d 986, 992 n.9 (10th Cir. 2004) (citing 20 C.F.R. § 402.35(b) for the proposition that
Social Security Rulings, or SSRs, are also “binding on the ALJ”). When the Appeals
Council remands a case with instructions, those instructions become legal requirements
with which the ALJ is bound to comply. If the Appeals Council directs the ALJ to take
additional or different steps to build or evaluate the record, then the remand order
supplements or affirms the rules shaping the evidence that is available or pertinent to the
claimant.
Reviewing an ALJ’s compliance with such rules is hardly unusual, and within a
federal court’s authority under 42 U.S.C. § 405(g). Indeed, for jurisdictional purposes,
there is little difference between reviewing an ALJ’s decision for compliance with a
remand order under 20 C.F.R. §§ 404.977(b) and 416.1477(b) and reviewing an ALJ’s
decision for compliance with other regulations relating to gathering and evaluating
13
evidence. We issue reversal orders all the time based at least in part on an ALJ’s failure
to comply with the latter.1
Jurisdiction is not lacking because Appeals Council remand orders are not “final
decisions” under the applicable statute. It is true that a post-remand ALJ opinion
generally constitutes the “final decision” of the Commissioner, and we have held
(assuming there is no constitutional challenge) that “we do not have subject matter
jurisdiction under 42 U.S.C. § 405(g) to review the propriety of the Appeals Council’s
remand order.” Martinez v. Barnhart, 444 F.3d 1201, 1204–05 (10th Cir. 2006). But
reviewing a final decision by an ALJ for compliance with an Appeals Council order is
not the same thing as reviewing the Appeals Council order itself. As part of our review
1
See, e.g., Harrold v. Berryhill, 714 F. App’x 861, 865, 869–71 (10th Cir. 2017)
(unpublished) (20 C.F.R. §§ 404.1520(a) and 404.1527(c), plus SSR 96-7p and 06-03p);
Winick v. Colvin, 674 F. App’x 816, 820 (10th Cir. 2017) (unpublished) (20 C.F.R.
§§ 404.1527(c) and 416.927(c)); Brown v. Colvin, 595 F. App’x 803, 805 (10th Cir.
2014) (unpublished) (20 C.F.R. § 416.928(a) and SSR 96-7p); Bledsoe v. Colvin, 544
F. App’x 823, 824–26 (10th Cir. 2013) (unpublished) (20 C.F.R. §§ 416.927(c) and
416.928(a)); Chrismon v. Colvin, 531 F. App’x 893, 900–01 (10th Cir. 2013)
(unpublished) (20 C.F.R. §§ 404.1527(d), 416.912(d), and 416.927(d)); Murdock v.
Astrue, 458 F. App’x 702, 704 (10th Cir. 2012) (unpublished) (20 C.F.R. part 404, subpt.
P, app. 1 § 1.02); Kilinski v. Astrue, 430 F. App’x 732, 736–38 (10th Cir. 2011)
(unpublished) (20 C.F.R. §§ 404.1545(a)-(b) and SSR 96-8p); Grotendorst v. Astrue, 380
F. App’x 879, 882–83 (10th Cir. 2010) (unpublished) (20 C.F.R. §§ 404.1520a and
404.1545(e)); Ramirez v. Astrue, 255 F. App’x 327, 330 (10th Cir. 2007) (unpublished)
(20 C.F.R. §§ 404.1569a and 416.969a, along with 20 C.F.R. part 404, subpt. P, app. 2
§ 200.00); Salazar v. Barnhart, 468 F.3d 615, 621–26 (10th Cir. 2006) (20 C.F.R.
§§ 416.920(a), 416.923, 416.927(d), 416.935(a)-(b), and 416.945, plus 20 C.F.R. part
404, subpt. P, app. 1 § 12.08); Smith v. Barnhart, 172 F. App’x 795, 799–801 (10th Cir.
2006) (unpublished) (20 C.F.R. part 404, subpt. P, app. 1 § 12.05(C) and SSR 00-4p);
Lackey v. Barnhart, 127 F. App’x 455, 457 (10th Cir. 2005) (unpublished) (20 C.F.R.
§§ 404.1527(a), (d), and (e), combined with SSR 96-5p); Allen v. Barnhart, 357 F.3d
1140, 1143 (10th Cir. 2004) (20 C.F.R. §§ 404.1569 and 404.1569a, along with 20 C.F.R.
part 404, subpt. P, app. 2 § 200.00).
14
of a final decision under § 405(g), we may consider whether the ALJ complied with any
legal requirements imposed by the Appeals Council upon remand. Absent a
constitutional-level objection, this review is neutral as to the appropriateness of the
Appeals Council’s directions. It is thus similar to measuring the ALJ’s decision against
other legally binding regulatory requirements concerning the collection and assessment of
evidence. Such a review does not culminate in a judicial decision affirming or reversing
the remand order from the Appeals Council. It culminates in a judicial decision affirming
or reversing the order from the ALJ.
IV
Noreja’s sole substantive argument on appeal is that the ALJ’s failure to follow a
directive from the Appeals Council to acquire another examination constitutes reversible
error. We conclude that the ALJ did not, in fact, violate the Appeals Council’s remand
order. The Appeals Council stated that the ALJ “will” obtain additional evidence “to
complete the administrative record in accordance with the regulatory standards regarding
consultative examinations and existing medical evidence[.]” I Admin. R. at 149
(brackets added, citing 20 C.F.R. §§ 404.1512–13 and 416.912–13). The Appeals
Council added that this supplementary evidence “should” include, if available, a
consultative medical examination. Id. at 149–50.
The language in the Appeals Council’s order is significant. The order used the
term “will” when it generally directed the ALJ to obtain additional evidence concerning
Noreja’s mental impairments. The order used the term “should” in connection with its
specific reference to a consultative medical examination. In this context, the only
15
mandatory directive to the ALJ was to obtain additional evidence on a particular topic,
which evidence might or might not include a new examination. Cf. United States v.
Tisdale, 248 F.3d 964, 977 (10th Cir. 2001) (holding that a Sentencing Guideline
provision using the word “should” was permissive rather than mandatory, because in
common parlance “[t]he phrase ‘should be’ is defined as something that ‘ought to be,’”
while “‘shall’ is ‘used to express a command or exhortation,’ and is ‘used in laws,
regulations, or directives to express what is mandatory’”) (brackets added, citations
omitted). Similarly, the order commanded the ALJ to obtain additional evidence in
accordance with identified regulatory standards. As they relate to consultative medical
examinations, those standards are also permissive. See 20 C.F.R. § 404.1512(b)(2)
(indicating that the Commissioner “may” ask a claimant to attend a consultative
examination, and generally “will not request” such an examination “until we have made
every reasonable effort to obtain evidence from your own medical sources”); id.§ 416.912(b)(2) (same); see also id. § 404.1519a(a) (“If we cannot get the information we
need from your medical sources, we may decide to purchase a consultative
examination.”).
The ALJ not only complied with the remand order by obtaining additional proof,
but also supported her denial of Noreja’s application for disability benefits with
substantial evidence. The new materials relied upon by the ALJ on remand included
mental health treatment records and testimony about Noreja’s status from Dr. Bruce.
Combined with the rest of the evidence, that was more than enough to qualify as what “a
reasonable mind might accept as adequate to support a conclusion.” Grogan, 399 F.3d at
16
1261. The ALJ carefully compared and weighed this proof against the opinions
presented by Dr. Madsen. I Admin. R. at 17–26.2 We are not at liberty to second-guess
the ALJ’s determination. Knight, 756 F.3d at 1175.
V
For the foregoing reasons, the Commissioner’s denial of Noreja’s claim for Social
Security benefits is affirmed.
2
The ALJ recapped her analysis as follows:
In sum, these findings are supported by the objective record and reports of
the claimant’s daily activities. Objective imaging confirmed mild
degenerative joint disease in the right ankle, right hip, and left shoulder,
while clinical findings support pain and limitation with range of motion of
these joints. The claimant was consistent in his reports of headaches, and a
neurologist prescribed medication to treat this impairment. Further, mental
health assessments confirmed mild cognitive deficits and symptoms
associated with depressive disorder, to include lack of interest, social
isolation, and irritability. However, he did not require the use of an
assistive device to walk, and he was still able to engage in activities such as
bicycle riding and yardwork. Further, he was described as pleasant upon
examination, and objective mental assessments indicate his psychological
symptoms were no more than mild. Therefore, due to the symptoms caused
by his severe impairments previously discussed, the undersigned finds that
the claimant retained the ability to perform work with the limitations
described in the residual functional capacity outlined above.
I Admin. R. at 26.
17