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Musonera v. Saul

United States District Court, E.D. Wisconsin

October 15, 2019

SANDRA M. MUSONERA Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN District Judge.

         An 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).[1] 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).

         Plaintiff 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 this evidence.
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.)

         Plaintiff 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).

         I. REVIEW OF AC ORDERS

         Ordinarily, 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).

         If the 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)).[2]

         Drawing 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)).

         Further 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.” Id.

         Finally, 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).[3] 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 noted:

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 ...


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