United States District Court, E.D. Wisconsin
SANDRA M. MUSONERA Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration Defendant.
DECISION AND ORDER
ADELMAN District Judge.
Administrative Law Judge (“ALJ”) denied plaintiff
Sandra Musonera's application for social security
disability benefits. (Tr. at 252-62.) The ALJ determined that
plaintiff suffered from a number of severe impairments,
including degenerative disc disease, obesity, and hip
dysplasia. However, he concluded that the record contained
insufficient evidence that plaintiff's alleged
fibromyalgia (see Tr. at 280, 459) constituted a
medically determinable impairment (Tr. at 255). The ALJ then
determined that plaintiff's allegations of disabling pain
and other symptoms were inconsistent with the available
medical and other evidence of record (Tr. at 258), and that
she retained the ability to perform a range of sedentary work
(Tr. at 257), consistent with her previous employment as a
human resources assistant and collections clerk (Tr. at 260).
sought review by the Appeals Council (“AC”),
submitting an article about fibromyalgia (Tr. at 314-26),
additional medical records (Tr. at 15-248), and a medical
source report from her treating physician indicating that she
met the criteria for fibromyalgia (Tr. at 11-14.) The AC
denied review, stating: “You submitted reasons that you
disagree with the decision. We considered these reasons and
exhibited them on the enclosed Order of the Appeals Council.
We found that the reasons do not provide a basis for changing
the Administrative Law Judge's decision.” (Tr. at
1.) Regarding the additional evidence, the Council stated:
You submitted an article by Helen Cohen, dated 2017 (13
pages). This evidence is not material because it is not
relevant to your claim for disability. We did not exhibit
You also submitted a medical source statement from Virginia
Wilson, M.D., dated March 7, 2018 (4 pages) and records from
SSM Health DMG Beaver Dam, dated November 16, 2015 through
January 25, 2018 (233 pages). We find this evidence does not
show a reasonable probability that it would change the
outcome of the decision. We did not exhibit this evidence.
(Tr. at 2.) The Order and Exhibits List referenced
plaintiff's request for review and her
representative's supporting brief but not the additional
evidence. (Tr. at 5-6.)
now seeks judicial review, arguing that the ALJ erred in
evaluating her fibromyalgia, her statements regarding her
symptoms, and the opinion evidence, including reports from
Rene Gellings, PA-C, her primary treatment provider,
suggesting greater limitations. Plaintiff further argues that
the AC erred in its consideration of the new medical
evidence. Logically, it makes sense to start with
plaintiff's final argument, for if the matter is remanded
on that ground the agency will be required to reevaluate the
existence and severity of plaintiff's fibromyalgia, the
credibility of her statements regarding her pain and
limitations, and the opinion evidence based on a fortified
record (including a new treating source report).
REVIEW OF AC ORDERS
when the AC denies review, the court evaluates the ALJ's
decision as the final word of the Commissioner.
E.g., Jozefyk v. Berryhill, 923 F.3d 492,
496 (7th Cir. 2019). If, however, the Council
denies review despite the submission of additional evidence
in support of the application, a claimant may be able to
obtain judicial review of the denial, depending on the
grounds upon which the Council declined review. See Stepp
v. Colvin, 795 F.3d 711, 722 (7th Cir. 2015).
AC determined that the claimant's additional evidence was
not “new and material, ” as required by the
applicable regulation, see 20 C.F.R. § 404.970,
the court retains jurisdiction to review that conclusion for
legal error. Stepp, 795 F.3d at 722 (citing
Farrell v. Astrue, 692 F.3d 767, 771 (7th
Cir. 2012)). If, on the other hand, the AC deemed the
evidence new, material, and time-relevant
(“qualifying” under the regulation) but then
denied review in the exercise of discretion based on its
conclusion that the record-as supplemented-did not
demonstrate the ALJ's decision was contrary to the weight
of the evidence, that decision is unreviewable. Id.
(citing Perkins v. Chater, 107 F.3d 1290, 1294
(7th Cir. 1997)).
this distinction can be challenging. New evidence is
“material” if there is a reasonable probability
that the ALJ would have reached a different conclusion had
the evidence been considered. Id. at 725 (citing
Perkins, 107 F.3d at 1296); see also Nelson v.
Bowen, 855 F.2d 503, 506 (7th Cir. 1988).
“To evaluate that standard of materiality, the
reviewing court must examine the newly submitted evidence and
compare it with the ALJ's rationale for denying
benefits.” Teresa F. v. Saul, No.
1:18-cv-01967-JRS-MPB, 2019 U.S. Dist. LEXIS 113380, at
*21-22 (S.D. Ind. July 9, 2019). In some cases, the court may
be able to make a materiality determination without weighing
the evidence as would a front-line fact-finder. Id.
at *22. In Farrell, for instance, the ALJ in denying
the claim determined “that ‘there is no evidence
that [a fibromyalgia] diagnosis has been
confirmed.'” 692 F.3d at 771. The court remanded
where the new evidence-a report confirming the claimant's
fibromyalgia diagnosis-filled “an evidentiary gap by
providing exactly that confirmation.” 692 F.3d at 771.
Because the ALJ relied on “the absence of a diagnosis
and the newly submitted evidence obliterated that rationale,
the evidence was material.” Teresa F., 2019
U.S. Dist. LEXIS 113380, at *22. In other cases, however,
“an evaluation of materiality can involve a rather
extensive review of the evidence that includes a rigorous
comparison of the newly submitted evidence and the existing
evidence, which only falls short of weighing the evidence by
not reaching any specific conclusion about the weight that
should be given conflicting evidence.” Id. at
*22-23 (citing Nelson, 855 F.2d at 507-08
(containing a lengthy discussion of the new evidence)).
complicating matters, the AC frequently uses opaque language,
which makes it difficult for the court to determine the basis
for its decision. See, e.g., Stepp, 795
F.3d at 725 (referring to the AC's “abstruse
signals”); Farrell, 692 F.3d at 771
(collecting cases). In Farrell, for instance, the
Council stated that it “considered . . . the additional
evidence . . . [and] found that this information does not
provide a basis for changing the Administrative Law
Judge's decision.” Id. The Seventh Circuit
noted that this language “might indicate that the
Appeals Council found the proffered new evidence to be
immaterial, but on the other hand it might indicate that the
Council accepted the evidence as material but found it
insufficient to require a different result.”
the agency recently revised the applicable regulation, which
now indicates the AC will review a case if it “receives
additional evidence that is new, material, and relates to the
period on or before the date of the hearing decision, and
there is a reasonable probability that the additional
evidence would change the outcome of the decision.” 20
C.F.R. § 404.970(a)(5). At the time Stepp was
decided, the regulation stated:
If new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where it
relates to the period on or before the date of the
administrative law judge hearing decision. The Appeals
Council shall evaluate the entire record including the new
and material evidence submitted if it relates to the period
on or before the date of the administrative law judge hearing
decision. It will then review the case if it finds that the
administrative law judge's action, findings, or
conclusion is contrary to the weight of the evidence
currently of record.
20 C.F.R. § 404.970(b) (1987); Steven S.A. v.
Comm'r of Soc. Sec., No. 17-cv-819-CJP, 2018 U.S.
Dist. LEXIS 119178, at *15-16 (S.D. Ill. July 18, 2018);
see Stepp, 795 F.3d at 721. As one judge recently
The revised regulation jettisons any explicit reference to
the Appeals Council comparing the ALJ's decision against
the weight of the evidence as part of its determination to
grant review. Instead, the regulation explicitly incorporates
the language used by the Seventh Circuit to evaluate
materiality as part of the required determination. The
regulation continues to require that the evidence is also
material, which renders the requirements duplicative when
applying the existing Seventh Circuit precedent.
Teresa F., 2019 U.S. Dist. LEXIS 113380, at *25. In
other words, to the extent § 404.970(a)(5) seeks to draw
a distinction between a legal determination (in the first
clause) and a discretionary one (in the second), the language
is redundant. The second clause (“there is a reasonable
probability that the additional evidence would change the
outcome of the decision”) basically restates the
definition of the term “material” which appears
in the first clause. If the Council says, as it did here,
that the new “evidence does not show a reasonable
probability that ...