Opinion
No. 99 CV 8483
August 21, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Devlon Luckerson seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), which found that he was not entitled to Social Security Income ("SSI") because his impairments did not impose marked and severe limitations. See 42 U.S.C. § 1382c(a)(3)(C)(i). The parties have filed cross motions for summary judgment. For the following reasons, plaintiff and defendant's motions for summary judgment are both DENIED. This case is REMANDED to the Commissioner to make findings consistent with this opinion and to modify or affirm the Commissioner's findings of facts and conclusions.
PROCEDURAL BACKGROUND
Plaintiffs mother, Patricia Luckerson, applied for Social Security Income ("SSI") on behalf of her son, plaintiff Devlon Luckerson, on August 12, 1996. The application alleged that plaintiff had become disabled on April 25, 1993 due to asthma and a speech problem. (R. 79, 82). His claim was denied initially, on reconsideration, and after a hearing before an administrative law judge ("ALJ"). (R. 11-20,50-53).
The ALJ found that plaintiff, born November 27, 1992, was suffering from asthma and developmental delay, which were both severe impairments. (R. 19). The ALJ found that plaintiff suffered from the following: a marked impairment in the cognitive/communicative area; a less than marked impairment in the motor area; a less than marked impairment in the personal areas; and a less than marked impairment in the area of concentration, persistence, or pace. (R. 20). The ALJ found that the plaintiffs impairments did not impose limitations that were functionally equivalent to those of an impairment listed in the Listing of Impairments provided in the Social Security regulations. The ALJ further found that plaintiffs impairments did not result in marked and severe functional limitations, and thus plaintiff was not disabled.
Plaintiff filed a timely request for review before the Appeals Council, but the Appeals Council denied review on February 24, 1999. After plaintiff was denied review by the Appeals Council, plaintiff retained counsel. Plaintiffs counsel submitted new evidence to the Appeals Council and requested that they reconsider their decision upholding the ALJs denial of plaintiffs application. The Appeals Council responded by writing a letter to plaintiff dated December 3, 1999. That letter acknowledged receipt of two new pieces of evidence plaintiff had supplied in support of his appeal, but went on to inform plaintiff that the Appeals Council concluded that the evidence did not show that plaintiff met the Listings of impairments provided in the Social Security regulations. The letter also extended the time in which a civil action could be filed for an additional 60 days.
Mrs. Luckerson filed a second application for SSI benefits on behalf of plaintiff in April, 1999. The Commissioner then found that plaintiff was disabled and entitled to SSI benefits. (Pl.'s Mot. Sum. Jug. App. A, Ex. 1). However, because a successful claimant can only receive benefits beginning the first full month after he files an application, plaintiff was only entitled to SSI benefits dating from May 1, 1999. Plaintiff seeks benefits due from the time he allegedly became disabled, April 25, 1993 until his claim was ultimately paid, May 1, 1999.
FACTUAL BACKGROUND
I. Evidence Considered by ALJ
Plaintiff Devlon Luckerson, born November 27, 1992, was five years old when the ALJ issued his decision to deny plaintiff benefits. (R. 79). He was in pre-kindergarten at the time of his hearing. (R. 27). Plaintiffs mother, Patricia Luckerson, testified that plaintiff was developmentally behind in his communication skills and claimed that he was not able to speak in complete sentences. (R. 22, 29). However, Mrs. Luckerson later admitted that plaintiff could form such sentences as "Can I have some milk?" and admitted that if plaintiff wanted something, he would ask for it. (R. 29, 33). She testified that plaintiff could understand simple, but not more complicated, commands. (R. 29-30).
Mrs. Luckerson claimed that plaintiff fought with other children at school, but did not know whether plaintiff started the fights, and stated that the school had not contacted her about the fighting. (R. 33, 34). She asserted that plaintiff had poor social skills, and wanted to fight with her friends' children. (R. 34). She further testified that plaintiff had difficulty dressing himself, but would put forth some effort to do so. (R. 36). She testified that plaintiff had a short attention span, but admitted that he watched "Barney" on television with few interruptions. (R. 36-37). She claimed that plaintiff could not sit still for an extended period of time, but played "considerably well" by himself. (R. 38, 39). When the ALJ asked Mrs. Luckerson about a medical report that suggested that her son might be autistic, she denied that he was autistic, but claimed that he was in a "broad category" related to autism. (R. 35).
Plaintiff also had a history of asthma since he was six months of age. (R. 141). Mrs. Luckerson stated that plaintiff responded to treatment with a nebulizer, but sometimes had to bring him to the doctor's office when she could not control the asthma at home. (R. 30, 31). On May 15, 1996, plaintiff was hospitalized for coughing, wheezing, and difficulty in breathing. (R. 141). During the examination, plaintiff had difficulty breathing, diminished air exchange between both lungs, and expiratory wheezes. (R. 141). However, there were no crackles, his breathing sounds were equal, his pulses were normal, and his heart rate was decreased but he had normal heart sounds with no murmurs. (R.141). The remaining examination was unremarkable. (R. 141). Plaintiff was treated and released two days later. (R. 141).
On September 5, 1996, Dr. Wendell Wheeler, a treating physician, prepared a report regarding plaintiffs condition. Dr. Wheeler reported that plaintiff had first been examined in his office in January 1993. (R. 156). Dr. Wheeler first examined plaintiff himself in August 1996, and last examined him on September 5, 1996, the day he prepared a report regarding plaintiff. Dr. Wheeler diagnosed asthma and autism, and reported that plaintiffs response to treatment with a nebulizer was "fair." (R. 156). Dr. Wheeler admitted that plaintiffs autism had not been documented previously. (R. 156).
On October 4, 1996, Dr. Harold Song performed a pediatric evaluation for the Bureau of Disability Determination Service. (R. 163). The doctor noted that at the time of the exam, plaintiff was three years and ten months old, and alleged disability due to bronchial asthma and speech problems. (R. 163). Dr. Song observed that plaintiff was "alert, responsive, and capable of following instructions," but was not able to sit still. (R. 163). Dr. Song noted that plaintiff "just walked around the room, climbing and hanging on the doctor, sometimes kicking and punching." (R. 163). Plaintiff did not respond to the doctor's questions about his name and age. (R. 163). However, plaintiff did answer "yeah" to the question "do you want candy?". A physical exam yielded normal results, including no deformities or retractions in the lungs, and good health sounds with no expiratory wheezing, bronchi or rales. (R. 163). Dr. Song diagnosed plaintiff as suffering from bronchial asthma, speech/language delay, and probable behavior problem.
On October 28, 1996, Dr. Chistel Lembke performed a psychiatric evaluation for the Bureau of Disability Determination Service. (R. 166-68). Plaintiff had recently begun a Head Start program, and was evaluated for the appropriateness of public school. Dr. Lembke reported that plaintiff seemed "quite cooperative and friendly," and was waving to people around him, and not causing any difficulties. (R. 166). Mrs. Luckerson told Dr. Lembke that she had not been concerned about plaintiff until he did not walk until almost 17 months of age. (R. 166). Mrs. Luckerson reported to the doctor that plaintiff was generally cooperative and easily separated from her when she took him to a babysitter five days a week. (R. 166). Mrs. Luckerson stated that her main concern was plaintiffs asthma. Plaintiff showed five fingers when asked his age. (R. 166). When asked his name, he initially stated "name," but later had "a considerable amount of appropriate, spontaneous speech." (R. 166). Dr. Lembke observed that plaintiff did not seem overly impulsive or hyperactive, but did have a short attention span. (R. 166). Dr. Lembke opined that plaintiff "might be globally somewhat delayed" and that his expressive speech was more delayed than his receptive speech. (R. 166). Dr. Lembke described plaintiff as "excitable," but found no evidence of anxiety, depression or attention deficit disorder. (R. 166).
On October 31, 1996, plaintiff was seen in a hospital emergency room for an exacerbation of asthma. (R. 170). Plaintiff as alert, dry, warm, and active during the examination. (R. 170). His chest revealed an expiratory wheeze with retractions, and plaintiff used his abdominal muscles for respiration, (R. 170). A chest X-ray showed interstitial lung markings that suggested the presence of airway inflammatory disease, but showed no definite focal infiltrates or pleural effusions. (R. 177).
In a Individualized Education Program ("TEP") from his school dated November 26, 1996, plaintiff was noted to be impulsive, hyperactive, and to have a short attention span. (R. 105). The goals listed were to improve cognitive skills, socialization, and impulse control. The report also noted that plaintiff's disability required that he be given transportation to attend school. Supervision by an aid on the bus was necessary and an adult was required to meet him at the bus. (R. 105). It was determined that self-contained special education for 50% or more of the day and non-integrated activities was the least restrictive environment that was appropriate. (R. 110).
Treatment notes prepared by Dr. Wheeler on December 5, 1996 indicate that Mrs. Luckerson was complaining of behavior problems. (R. 185). The report indicates that during the exam plaintiff was running around, had decreased attention, and was pushing and kicking. (R. 185). A physical examination revealed no problems. (R. 170), Dr. Wheeler referred Mrs. Luckerson for assistance with parenting issues. (R. 170). However, on December 7, 1996, Dr. Wheeler reported that he had consulted with an associate and concluded that plaintiff had "almost classic autism, "and stated that he had written to plaintiffs school about the problem. (R. 170). On February 25, 1997, Mrs. Luckerson told Dr. Wheeler that the school did not believe plaintiff had autism. (R. 170). Dr. Wheeler continued to maintain that plaintiff was autistic.
Another IEP was done on March 24, 1997, when plaintiff was 4 1/2 years old. (R. 131). At that time, plaintiffs auditory comprehension was that of a 3 1/2 year old, his verbal ability was that of the three year old, and his score on the "Expressive One Word Picture Vocabulary Test" was that of a 2 year old. (R. 131). Goals were to improve receptive and expressive language skills. (R. 132). Early childhood special education, social work services, and speech/language therapy were noted as special education services needed. (R. 133). The IEP also noted that the following disabilities: behavior/emotional and speech/language adversely affect the child's educational performance. (R. 139).
II. Evidence Submitted to the Appeals Council
The following evidence was included in plaintiffs motion for summary judgment. Defendant did not dispute the accuracy of the evidence in response to plaintiffs motion, but rather argued that it should not be considered by this court. Because defendant has not disputed the accuracy of the reports, this court accepts for purposes of this motion that plaintiff has accurately summarized the evidence submitted to the Appeals Council.
On July 10, 1997, plaintiff was diagnosed at the Developmental Disorders Clinic at the University of Chicago by Cynthia Broullard, Psy. D., as suffering from pervasive developmental disorder, rule/out attention deficit disorder, and a receptive/expressive language disorder. (R. 130). At the time of the testing, plaintiff was 4 1/2 years old, with a communication scale on the Vineland adoptive Behavior Scales which corresponds to an age equivalent of 1 year and 9 months. (Pl's M. Sum. Jug., App. B, Exhibit 3). On the Differential Ability Scales, pre-school form, plaintiff achieved 65 on a nonverbal standard score, and a verbal cluster score of 70. (Id. at p. 5). His true cognitive ability standard score was 67. (Id.). Plaintiff was also issued the autism Diagnostic Observation Schedule — Generic, a structured observation of communication and social behaviors associated with autism and other pervasive developmental disorders. The doctors reported that plaintiff generally spoke in 2 to 3 word phrases and his speech was often difficult to understand due to poor articulation. Plaintiff was able to respond to brief, closed-ended and concrete questions, but was unable to respond to more abstract, open-ended questions. When pressed in such situations, he became agitated and gave nonsensical responses. Plaintiff was unable to engage in reciprocal conversations. Plaintiff had difficulty with transitions from one activity to another and was easily frustrated when denied access to something he wanted. (Id. at p4)
Another IEP was performed on plaintiff on November 25, 1997. (Pl's M. Sum. Jug., App. B, Exhibit 6). According to the November IEP, plaintiff still had a short attention span and impulsiveness which impeded his ability to concentrate, and had problems with understanding complex sentences and abstract concepts. Receptive language was at the 3 1/2 to 4 year old range. It was determined that plaintiff would continue in a self-contained special education classroom for 50% of the day or more, and that he would participate in no integrated activities. (Id.)
Plaintiffs teacher prepared an Extended School Year (ESY) narrative report for 1997. (Pl's M. Sum. Jug., App. B, Exhibit 7). The ESY noted that plaintiff had poor social skills, aggressive behavior, delayed cognitive skills, and poor short-term memory. He had a slow rate of progress, continuous need for reinforcement, and repetition of learned materials and behaviors. The report noted that plaintiff would continue to need attention in the following areas: basic skills, counting, shapes, colors, sizes, identifying common objects, learning to share, and remaining focused. (Id).
Plaintiff also submitted notes from the Chicago Family Health Center dated September 9, 1999 in support of his appeal. (P1's M. Sum. Jug., App. B, Exhibit 12). Those notes diagnosed plaintiff as suffering from Attention Deficit Hyperactivity Disorder, learning disability, borderline intellectual functioning, and impaired speech.
STANDARD OF REVIEW
The findings of the ALJ as to any fact, which constitutes the findings of the Commissioner of Social Security where the Appeals Council denies review, are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Unlike findings of fact, conclusions of law are reviewed de novo. Dotson v. Shalala, 1 F.3d 571, 575 (7th Cir. 1993). The ALJ is not required to comment on every piece of evidence presented, but the ALJ's decision must be based on consideration of all the relevant evidence and the reasons for the conclusion must be stated in a manner sufficient to permit an informed review. Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988). This court cannot reevaluate the facts, reweigh the evidence, or substitute its own judgment for that of the ALJ. Banuelos v. Apfel. 165 F.3d 1166 (7th Cir. 1999); Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). The question, therefore, is not whether plaintiff is in fact disabled but rather whether the ALJ's findings were supported by substantial evidence. Books v. Chater, 91 F.3d 972, 977 (7th Cir. 1996). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). Thus, this court does "not substitute [its] own judgment for that of the ALJ." Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997).
ANALYSIS
Plaintiff argues that the Social Security Commissioner erred in one of two ways: (1) the Appeals Council either took review of this case and then affirmed the ALJ's decision despite a lack of substantial evidence to support the decision, or (2) the Appeals Counsel declined to take the case because it viewed evidence plaintiff submitted in support of the appeal as not material or insufficient to undermine the findings of the ALJ.
42 U.S.C. § 1382c(a)(3)(C)(i) provides: "An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." Subsection (ii) provides: "Notwithstanding clause (i), no individual under the age of 18 who engages in substantial gainful activity (determined in accordance with regulations prescribed pursuant to subparagraph (E) may be considered to be disabled." 42 U.S.C. § 1382c (a)(3)(C)(ii).
The regulations provide a three-stepped sequential evaluation process for determining whether a child's impairments result in "marked and severe limitations." First, if the child is engaging in "substantial gainful activity," the child will found not disabled regardless of medical condition or age, education, or work experience. 20 C.F.R. § 416.924(b). Second, the child must have a must have a severe impairment or impairments. If the child suffers from a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, the child will be considered to not have a severe impairment, and therefore to be not disabled. 20 C.F.R. § 416.924 (c). Third, the child will be considered disabled if his or her impairment(s) meet, medically equal, or functionally equal in severity a listed impairment in appendix I of subpart P of part 404 of the chapter. Therefore, if the child has an impairment(s) that is listed in appendix 1, or is medically or functionally equal in severity to a listed impairment, and that meets the duration requirement, the child will be found disabled. But if the child's impairment(s) does not meet the duration requirement, or does not meet, medically equal, or functionally equal in severity a listed impairment, he or she will found to be not disabled. 20 C.F.R. § 416.924(d).
Neither party contends that plaintiff is able to engage in substantial gainful activity. As such, whether plaintiff is disabled for purposes of Social Security depends on whether he suffers from a severe impairment that medically or functionally meets or equals an impairment listed in the regulations. In order to functionally meet or equal a listing, a child must have either an extreme limitation in one of four functional areas, or a marked limitation in two of the four functional areas: cognitive/communicative; motor; social; personal, concentration, persistence, and pace. 20 C.F.R. § 416.926a(c)(5). The ALJ concluded that plaintiff was not disabled because he suffered a marked impairment in only the cognitive/communicative area. The ALJ found that plaintiff suffered from a less than marked impairment in the motor area, a less than marked impairment in the personal areas, and a less than marked impairment in the area of concentration, persistence, or pace.
The rules for deciding whether an impairment(s) meets a listing are set forth in 20 C.F.R. § 416.925. The rules for deciding whether an impairment(s) medically equals a listing are set forth in § 416.926. The rules for deciding whether an impairment(s) functionally equals a listing are set forth in § 416.926a.
As an initial matter, the parties dispute whether the Appeals Council took review of this case after plaintiff retained counsel and submitted additional evidence to support his appeal. If the Appeals Council accepted review and considered the evidence, as plaintiff suggests, the decision of the Appeals Council is the final decision of the commissioner and is reviewable by this court. White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992). If such is the case, this court may consider the additional evidence submitted by plaintiff in support of his appeal in determining whether the Appeals Council's decision is supported by substantial evidence. On the contrary, if the Appeals Council denied review, as defendant maintains, then the decision of the ALJ is the final decision of the Commissioner, and this court may only consider the new evidence in determining whether the Appeals Council erred in declining review on the basis that the new evidence was not material. The pertinent regulation for disability claims is 20 C.F.R. § 404.970(b), which provides as follows:
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 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.
This court's review of the question whether the Council made an error of law in applying this regulation is de novo. See Perkins v. Chater, 107 F.3d 1290, 1293 (7th Cir. 1997). In the absence of any such error, however, the Council's decision whether to review is discretionary and unreviewable. See Damato v. Sullivan, 945 F.2d 982, 988 (7th Cir. 1992). In the latter case, the ALJ's decision becomes the final decision reviewed under § 405(g).
The Appeals Council originally unambiguously denied plaintiffs request for an appeal in a letter dated February 24, 1999. Plaintiff then retained counsel. Plaintiffs newly retained counsel submitted a request for review which included the new evidence on June 18, 1999. The new evidence included the report prepared by Cynthia Brouillard of the University of Chicago which diagnosed plaintiff as suffering from pervasive developmental disorder, rule/out attention deficit disorder, and a receptive/expressive language disorder (Plaintiff's Exhibit 3). The request also included plaintiffs November 25, 1997 IEP, which stated that plaintiff had a short attention span and impulsiveness which impeded his ability to concentrate, had problems with understanding complex sentences and abstract concepts, and scored plaintiff's receptive language ability at the 3 1/2 to 4 year old range (Plaintiffs Exhibit 6). Plaintiff also forwarded plaintiffs ESY, which noted that plaintiff had poor social skills, aggressive behavior, delayed cognitive skills, and poor short-term memory (Plaintiffs Exhibit 7) and notes from the Chicago Family Health Center dated September 9, 1999 which diagnosed plaintiff as suffering from Attention Deficit Hyperactivity Disorder, learning disability, borderline intellectual functioning, and impaired speech (Plaintiff's Exhibit 12).
On December 3, 1999, the Appeals Counsel responded to plaintiff's renewed request for review of the ALJ's decision in a letter. That letter is the focus of the parties' debate. Plaintiff claims that the letter states that the Appeals Council took review, and then affirmed the ALJ's decision while considering the new evidence. Defendant claims that the letter reflects the Appeals Council's decision not to consider the additional evidence and to decline review because the additional evidence was not contrary to the evidence of record. The letter states that the Appeals Council had received "further correspondence and additional evidence concerning the case." The letter went on to discuss the evaluation performed by Dr. Broulliard, and then stated: "Upon its consideration of your contentions and the additional medical evidence, the Appeals Council is of the opinion that the above test results do not demonstrate or show impairments which meet the requirements in the respective sections in Appendix I [of the regulations]." The letter continued by explaining how the evidence did not show that plaintiff fell within the requirements of the regulations. The letter concluded that "the additional medical evidence is not material and does not warrant any change in the findings and conclusions in the hearing decision."
This court does not believe that the December 3, 1999 letter constitutes a grant of plaintiff's request for review. The letter never stated that the Appeals Council was reviewing the case because the ALJ's action, findings, or conclusion is contrary to the weight of the evidence of record, a predicate to review under the regulations. See 20 C.F.R. § 404.970(b). Furthermore, the regulations state that when the Appeals Council decides to grant review in a case, it will mail a notice to all parties stating the reasons for the review and the issues to be reviewed. 20 C.F.R. § 404.973. The record in this case does not contain any such notice. Finally, the regulations automatically provide for 60 days in which the claimant may file an action in federal district court when the Appeals Council decides to review a case and makes a decision. This letter indicated that the Appeals Council was extending the time for plaintiff to file an action in federal court for sixty days. Had the Appeals Council taken review, there would have been no need for such an extension of time. This case, therefore, is like Perkins, in which the Seventh Circuit found, based on a similar letter, that the Commissioner had not refused to consider the plaintiff's additional materials. To the contrary, following the second sentence of § 404.970(b), the Appeals Council "evaluate[d] the entire record including the new and material evidence submitted" and concluded that "neither the contentions nor the additional evidence provide[d] a basis for changing the [earlier] decision." Perkins, 107 F.3d at 1294. There, the Seventh Circuit explained the process of review under the regulations:
Under the regulation, once the Council has assured itself that the proffered new material relates to the appropriate time period, the first step it must take is to decide whether the submission is really "new" and "material," If it is, the Council must proceed under the second sentence to evaluate the entire record including that new and material evidence. If it concludes as a result of that evaluation that the administrative law judge's action appears to be contrary to the weight of the evidence currently" of record — that is, the old evidence plus the new submissions — only then does it proceed to a full review of the case.Id. Here, as in Perkins, plaintiff satisfied the first two steps: the evidence related to the proper time period and the Appeals Council treated it as new and material. However, plaintiff, also like the plaintiff in Perkins, failed at step three: upon its consideration of the entire record, the Council concluded that there was nothing before it that undermined the ALJ's earlier decision. See id. the Council accordingly denied review. The Seventh Circuit concluded that there was no error as a matter of law in this method of proceeding, and thus refused to review the Council's discretionary decision. See id. This court must do the same.
Because the Appeals Council did not accept review and consider this case on the merits, the decision of the ALJ is the final decision of the Secretary in this case. See Damato, 945 F.2d at 988. The ALJ did not consider the evidence plaintiff submitted in support of his appeal; this court likewise may not consider the evidence in deciding whether the decision denying benefits was supported by the record as a whole. See Eads v. Secretary of the Dep't, of Health and Hum. Servs., 983 F.2d 815, 817 (7th Cir. 1993). The correctness of that decision depends on the evidence that was before the ALJ. Id. On the basis of that evidence alone, this court sees no reason to disturb the decision of the ALJ. The ALJ's decision was supported by substantial evidence that was before it.
This court may, however, consider the evidence submitted by plaintiff in support of his appeal to determine whether it provides grounds for remand under sentence six of 42 U.S.C. § 405(g). Evidence submitted to the Appeals Council or this court is grounds for remand under sentence six only if it meets the statutory requirement that it is new, material, and not previously submitted for good cause. Perkins, 107 F.3d at 1296. Defendant does not contend that plaintiff's submitted evidence is not new or that plaintiff lacks good cause for the failure to submit it earlier. Therefore, whether the evidence supports remand in this case depends solely on whether it is "material." Evidence is material if there is a "reasonable probability that the Commissioner would have reached a different conclusion had the evidence been considered." Id.
Defendant argues that the evidence submitted to the Appeals Council is not material because it does not show that he meets the impairments listed in the regulations. Defendant provides extensive argument as to how that evidence would not change the determination of the ALJ that plaintiff is not disabled within the meaning of the regulations. However, defendant did not address the fact that plaintiff was later found to be disabled, at least in part on the basis of the evidence submitted to and rejected by the Appeals Council in granting plaintiff benefits. Neither plaintiff nor defendant has indicated whether the Commissioner considered any evidence besides the evidence originally considered by the ALJ and the new evidence submitted to the Appeals Council. If the Commissioner did consider other evidence, it is entirely possible that the evidence submitted by plaintiff, standing alone, would not have changed the Commissioner's earlier decision. However, plaintiff was granted benefits in September, 1999, effective from May, 1999. As such, any evidence relied upon by plaintiff in his second application for benefits was available to him when he briefed this motion. In briefing this motion, neither plaintiff nor defendant made any allusion to any evidence that was not either considered by the ALJ or submitted to the Appeals Council. As such, this court has no reason to believe that the Commissioner relied upon any evidence that was not considered in the original denial of benefits and refusal to review that denial in determining that plaintiff was disabled and entitled to benefits.
In short, it appears likely that the Commissioner ultimately determined that plaintiff was disabled on the basis of evidence it had previously determined was insufficient to disturb the ALJ's decision that plaintiff was not disabled. Given that reversal of positions, this court must conclude that there is a "reasonable probability that the Commissioner would have reached a different conclusion had the evidence been considered." See Perkins, 107 F.3d at 1296. Because there is a reasonable probability that the Commission would have reached a different result had it considered the evidence, the evidence is material. Because the evidence is new, material, and was not submitted earlier for good cause (it was not available), it supports a remand to the Commissioner. See 42 U.S.C. § 405(g). This case must be remanded to the Commissioner to determine whether the evidence submitted in support of plaintiff's appeal is material, and, if it is material, if and why the new evidence changes the Commissioner's original findings that plaintiff is not disabled and conclusion that plaintiff is not entitled to benefits.
CONCLUSION
For the reasons stated, this court has insufficient evidence upon which to either affirm or reverse the findings and conclusions of the Commissioner. The plaintiff and defendant's motions for summary judgment are therefore both DENIED. This case is REMANDED to the Commissioner to determine whether the evidence submitted in support of plaintiff's appeal is material, and, if it is material, to determine and explain how the evidence affects the Commissioner's original decision to deny plaintiff benefits.