Opinion
Case No. 1:08CV00082 ERW.
July 31, 2009
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation of United States Magistrate Judge Mary Ann L. Medler [doc. #18] pursuant to 28 U.S.C. § 636(b). Plaintiff in this case seeks judicial review of the decision of the Commissioner of Social Security which denied Plaintiff's application for disability insurance benefits filed under Title II of the Social Security Act, 42 U.S.C. §§ 401- 434. The Magistrate Judge recommended that this matter be reversed and remanded, and the Court notes that Defendant has filed a timely Objection to the Magistrate's Recommendation [doc. #19].
A. STANDARD OF REVIEW
B. DISCUSSION
United States v. Lothridge,324 F.3d 599600 28 U.S.C. § 636
In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Counsel. We found that this information does not provide a basis for changing the Administrative Law Judge's Decision.
The Magistrate Judge reviewed the record in this case, and concluded that this action should be reversed and remanded based upon the Appeals Counsel's failure to consider the medical records submitted after the ALJ's decision. Specifically, the Report and Recommendation states that:
The court is unable to discern whether the Appeals Counsel considered the new and material evidence which it made part of the record. The court finds, therefore, that it cannot be said that the decision of the Commissioner, in regard to Plaintiff's alleged physical impairments is supported by substantial evidence. Under such circumstances it is appropriate to remand this matter to the ALJ.
The Government subsequently filed an objection to the Report and Recommendation, asserting that the Appeals Counsel indicated that it considered the medical records. Furthermore, the Government asserts that the additional medical evidence was not material and that it supported the ALJ's decision.
The Appeals Counsel must consider "new and material evidence" that "relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970(b). The medical records at issue detail a severe injury to Plaintiff's arm, requiring two surgeries and at least eight prescriptions for various painkillers, including Percoset and Vicodin, between November 22, 2006 and the date of the administrative law judge's hearing decision on April 24, 2007. Evidence is "new" where it is "more than merely cumulative of other evidence in the record." Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008) (quoting Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000)). The evidence relating to Plaintiff's arm injury is not cumulative as it was not raised before the ALJ. Next, the Court must determine whether this evidence is "material." Additional evidence submitted to the Appeals Counsel is material when it is "relevant to the claimant's condition for the time period for which benefits were denied." Id. This means that the evidence "must not merely detail after-acquired conditions or post-decision deterioration of a pre-existing condition." Bergmann, 207 F.3d at 1069-70 (citing Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997)). Plaintiff's arm injury and this treatment occurred prior to the ALJ's hearing decision, and as a result, it satisfies the materiality requirement.
The Government attempts to assert that this medical evidence is not material because the injury to Plaintiff's arm was not related to the allegations of back pain that formed the basis of Plaintiff's complaint. While Plaintiff's claim of disability was based on back problems, the injury to Plaintiff's arm developed prior to the ALJ's hearing decision, and should have been considered by the Appeals Counsel. See Aulston v. Astrue, 277 F.App'x 663, 664 (8th Cir. 2008) (distinguishing where the new condition developed after the ALJ's decision).
The ALJ's hearing decision was issued on April 24, 2007, and the additional medical evidence from before this date should have been considered by the Appeals Counsel. While the Notice of Appeals Counsel Action summarily states that they considered "the additional evidence listed on the enclosed Order of Appeals Counsel." This simple dismissal without any comment on the additional medical evidence is not sufficient under the facts of this case.
Upon remand, the ALJ is directed to fully develop the record in a manner consistent with this Court's opinion. Specifically, the ALJ should obtain a medical examination of Plaintiff and an evaluation of her physical condition. The ALJ should request that the examiner give an opinion regarding Plaintiff's exertional limitations and complete a physical residual functional capacity evaluation. Additionally, Plaintiff may submit an evaluation conducted by an examiner of her choice.
The Court does not imply by reversing and remanding this action that the ALJ should return a finding of "disabled." There is very substantial evidence that Plaintiff is not disabled. This matter is remanded so that the decision of the Commissioner may be fully developed and supported by substantial evidence on the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that under sentence four of 42 U.S.C. § 405(g), the final decision of the Commissioner of Social Security denying Plaintiff Evelyn Lincoln's disability benefits is REVERSED, and the case is remanded to the Commissioner for further proceedings.