“When the Appeals Council has considered new and material evidence and declined review, we must decide whether the ALJ’s decision is supported by substantial evidence in the whole record, including the new evidence.”
How later courts described this case
- “When the Appeals Council has considered new and material evidence and declined review, we must decide whether the ALJ’s decision is supported by substantial evidence in the whole record, including the new evidence.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
TAMMY LYNN DELAMOTTE PLAINTIFF
v. CIVIL NO. 21-5025
KILOLO KIJAKAZI,1 Acting Commissioner
0F
Social Security Administration DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Tammy Lynn Delamotte, protectively filed her current application for SSI on
September 6, 2017, alleging an inability to work due to an enlarged heart, diabetes mellitus, heart
attacks, hypertension, anxiety, seizures, and nerve damage in both legs. (Tr. 138, 254). An
administrative video hearing was held on May 16, 2019, at which Plaintiff appeared with counsel
and testified. (Tr. 97-119).
By written decision dated May 5, 2020, the ALJ found that during the relevant time period,
Plaintiff had an impairment or combination of impairments that were severe. (Tr. 42-43).
Specifically, the ALJ found Plaintiff had the following severe impairments: chronic Schmorl’s
nodes in the lumbar spine, spondylosis of the cervical spine, noncalcified nodules in the right
middle lobe, cardiomegaly, tachycardia, diabetes, mild degenerative joint disease of the right
ankle, and obesity. However, after reviewing all of the evidence presented, the ALJ determined
that Plaintiff’s impairments did not meet or equal the level of severity of any impairment listed in
the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 43). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
1 Kilolo Kijakazi, has been appointed to serve as Acting Commissioner of Social Security, and is
substituted as Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
[P]erform light work as defined in 20 CFR 416.967(b) (i.e., lift, carry, push and
pull 20 pounds occasionally and 10 pounds frequently; sit for six hours out of an
eight-hour work day; and stand and walk for six hours out of an eight-hour work
day) except she is limited to occasional climbing of ramps, stairs, ropes, ladders,
and scaffolds. She is also limited to occasional balancing, stooping, kneeling,
crouching, and crawling.
(Tr. 45). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as
a cashier II, a retail sales attendant, and a housekeeper. (Tr. 49).
Plaintiff then requested a review of the hearing decision by the Appeals Council, who, after
reviewing additional evidence submitted by Plaintiff, denied that request on December 18, 2020.
(Tr. 1-6). Subsequently, Plaintiff filed this action. (ECF No. 2). Both parties have filed appeal
briefs, and this case is before the undersigned for report and recommendation. (ECF Nos. 13, 14).
II. Applicable Law:
The Court reviews “the ALJ’s decision to deny disability insurance benefits de novo to
ensure that there was no legal error that the findings of fact are supported by substantial evidence
on the record as a whole.” Brown v. Colvin, 825 F. 3d 936, 939 (8th Cir. 2016). Substantial
evidence is less than a preponderance but it is enough that a reasonable mind would find it adequate
to support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). The
Court must affirm the ALJ’s decision if the record contains substantial evidence to support it.
Lawson v. Colvin, 807 F.3d 962, 964 (8th Cir. 2015). As long as there is substantial evidence in
the record that supports the Commissioner’s decision, the Court may not reverse it simply because
substantial evidence exists in the record that would have supported a contrary outcome, or because
the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir.
2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the findings of the ALJ, the Court must
affirm the ALJ’s decision. Id.
It is well established that a claimant for Social Security disability benefits has the burden
of proving her disability by establishing a physical or mental impairment that has lasted at least
one year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(A). The Act
defines “physical or mental impairment” as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A Plaintiff must show that
her disability, not simply her impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given her age, education, and experience. See 20 C.F.R. § 416.920. Only if the final stage is
reached does the fact finder consider the Plaintiff’s age, education, and work experience in light
of her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir.
1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20
C.F.R. § 416.920.
III. Discussion:
Plaintiff argues the following issues on appeal: 1) The ALJ’s Step 2 findings are contrary
to substantial evidence in light of the new and material evidence submitted to the Appeals Council;
2) The ALJ’s RFC determination is contrary to substantial evidence in light of the new and material
evidence submitted to the Appeals Council; and 3) The ALJ failed to fully and fairly develop the
record.
The regulations provide that the Appeals Council must evaluate the entire record, including
any new and material evidence that relates to the period before the date of the ALJ's decision. See
20 C.F.R. § 404.970(b). The newly submitted evidence thus becomes part of the “administrative
record,” even though the evidence was not originally included in the ALJ's record. See Nelson v.
Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). If the Appeals Council finds that the ALJ's actions,
findings, or conclusions are contrary to the weight of the evidence, including the new evidence, it
will review the case. See 20 C.F.R. § 404.970(b). Here, the Appeals Council denied review,
finding that the new evidence did not show a reasonable probability that it would change the
outcome of the decision, noting that some of the evidence submitted was dated after the ALJ’s
decision and thus was not relevant to the time in question. In these circumstances, the Court does
not evaluate the Appeals Council's decision to deny review, but rather the Court determines
whether the record as a whole, including the new evidence, supports the ALJ's determination. See
Kitts v. Apfel, 204 F.3d 785, 786 (8th Cir. 2000) (“When the Appeals Council has considered new
and material evidence and declined review, we must decide whether the ALJ’s decision is
supported by substantial evidence in the whole record, including the new evidence.”).
The new evidence submitted to the Appeals Council includes medical records dated
January 14, 2020, through June 29, 2020, and pertains mainly to a left shoulder impairment. (Tr.
11-30, 33-36, 57-78, 80-95). A review of the record revealed Plaintiff complained of a left upper
extremity impairment at the administrative hearing held on May 16, 2019. At this hearing, Plaintiff
testified that she was having great difficulty with the use of her left shoulder; and was in fact,
unable to lift her arm above her head. (Tr. 112). In the ALJ’s May 5, 2020, hearing decision, there
is no reference to a left shoulder impairment, despite Plaintiff’s testimony and medical records
revealing Plaintiff had been treated for left shoulder pain during the time period in question. (Tr.
781, 1419, 1474).
As indicated above, the evidence submitted to the Appeals Council pertains to Plaintiff’s
left shoulder impairment, which resulted in Plaintiff undergoing left-shoulder surgery on May 20,
2020, less than three weeks after the ALJ’s hearing decision. (Tr. 16). While the surgical procedure
provided Plaintiff some improvement of her pain, follow-up records revealed Plaintiff continued
to complain of pain when she moved her left shoulder. (Tr. 24). Had the ALJ had this medical
evidence before him when making the decision in this case, the outcome may very well have been
different. Accordingly, the Court believes that remand is necessary to allow the ALJ to consider
this new evidence.
On remand, the ALJ is also directed to address interrogatories to a medical professional
requesting that said physician review Plaintiff's medical records; complete a RFC assessment
regarding Plaintiff's capabilities during the time period in question; and give the objective basis
for the opinion so that an informed decision can be made regarding Plaintiff's ability to perform
basic work activities on a sustained basis. With this evidence, the ALJ should then re-evaluate
Plaintiff's RFC and specifically list in a hypothetical to a vocational expert any limitations that are
indicated in the RFC assessment and supported by the evidence.
IV. Conclusion:
Based on the foregoing, the undersigned recommends reversing the decision of the ALJ
and remanding this case to the Commissioner for further consideration pursuant to sentence four
of 42 U.S.C. § 405(g). The parties have fourteen days from receipt of our report and
recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The
failure to file timely objections may result in waiver of the right to appeal questions of fact.
The parties are reminded that objections must be both timely and specific to trigger de novo
review by the district court.
DATED this 8th day of March 2022.
Christy Comstock
/s/
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE