Ruud v. Astrue

Filing 38

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey T. Gilbert on 7/16/2014. Mailed notice (ber, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
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GARY JOHN RUUD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security1
Defendant.

No. 12 C 06813
Magistrate Judge
Jeffrey T. Gilbert

MEMORANDUM OPINION AND ORDER
Plaintiff Gary John Ruud (“Claimant” or “Ruud”) brings this action asking the
Court to remand this case pursuant to sentence six of 42 U.S.C. § 405(g) for readjudication of a decision by Defendant Carolyn W. Colvin, Acting Commissioner of
Social Security (“Commissioner”) denying Ruud’s application for social security
disability benefits. Claimant argues the Appeals Council’s decision not to send this case
back to the Administrative Law Judge (“ALJ”) for re-adjudication should be reversed
because deposition testimony given by Dr. Howard Konowitz, Ruud’s treating physician,
in his worker’s compensation case a few months after the ALJ's hearing in this case is
new and material evidence that should have been considered by the ALJ. [DE #19 at 89]. 2The Commissioner responds that Claimant has not satisfied the requirements for
remand because he has not established good cause for failing to include the substance of

On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social Security. Pursuant to
Rule 25 of the Federal Rules of Civil Procedure, Carolyn W. Colvin is automatically substituted as the
Defendant in this case. No further action is necessary to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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Dr. Konowitz’s deposition testimony in the administrative record before the ALJ issued
her final decision. [DE #29 at 1-2].
This matter is before the Court on cross-motions for summary judgment filed by
Claimant and the Commissioner. [DE #17, 28]. For the reasons set forth below,
Claimant’s motion for summary judgment is denied and the Commissioner’s motion for
summary judgment is granted. The decision of the Appeals Council is affirmed, and this
case will not be remanded for further proceedings.
I. BACKGROUND
Claimant was born on February 24, 1959. (R. 19). He has a ninth grade education.
(R. 51). In January 2009, Claimant was injured at work when he fell, fractured a rib or
ribs and suffered a facial contusion injury. (R. 13). Ruud has been diagnosed as having
myofascial pain. (R. 12). A February 2009 x-ray revealed that Ruud's fractured rib had
healed. (R. 13). 2
A.

PROCEDURAL HISTORY
On July 28, 2010, Claimant filed a claim for social security disability insurance

benefits, alleging disability beginning January 2, 2009. (R. 10). The claim was denied on
October 21, 2010, and upon reconsideration on December 8, 2010. Id. On December 10,
2010, Claimant filed a written request for a hearing, which was held on September 27,
2011. Id. Claimant appeared and testified at the hearing and was represented by counsel.
Id. Medical expert James M. McKenna, M.D., and vocational expert Thomas A. Gusloff
also appeared. Id.

It is unclear from the record whether Ruud fractured one or more ribs and whether just one or all of the
ribs he fractured had healed by February 2009. A fair inference from the record is that regardless of
whether Ruud's rib fracture(s) had healed, he continued to suffer myofacial pain.
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On November 16, 2011, the ALJ denied Ruud’s claim for disability benefits,
finding him not disabled under the Social Security Act. (R. 20). Claimant filed a request
for review on January 13, 2012 with the Social Security Administration Appeals Council
requesting that the Appeals Council consider Dr. Konowitz’s deposition testimony given
on December 23, 2011, after the ALJ hearing and decision in Claimant's case, in its
review of the ALJ’s decision. (R. 1-5). The Appeals Council denied Claimant’s request for
review on June 23, 2012, determining that Claimant’s additional evidence “does not
provide a basis for changing the Administrative Law Judge’s decision.” (R. 1-2). Thus,
the ALJ’s decision is the final decision of the Commissioner and reviewable by the
District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th
Cir. 2005).
B.

RELEVANT EVIDENCE
The administrative record before the ALJ includes treatment records from Dr.

Konowitz, Claimant’s treating physician since October 2009. (R. 16, 24-25). Dr.
Konowitz assessed Claimant’s functional capacity at the light duty level as of July 2011.
(R. 905, 911, 1071).
The ALJ considered all the evidence in the record and concluded Claimant “has
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b), however, the claimant cannot climb ladders, ropes or scaffolds, can only
occasionally perform postural activities, and is limited to performing simple, routine,
repetitive work due to pain.” (R. 13).
Dr. Konowitz was deposed on December 23, 2011 in connection with Claimant’s
worker’s compensation case. During that deposition, Dr. Konowitz testified “. . . at the
long-term, he [Claimant] varies between sedentary and light [duty] over time.” (R.
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1130). Dr. Konowitz also testified that over the course of his treatment, Claimant “stayed
very consistent” and maintained a consistent base line of pain over two years of
treatment. (R. 1119-20, 1147).
II. LEGAL STANDARD
Remand is appropriate if the District Court determines that there is “new
evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). To prevail on
the issue, Claimant must satisfy the requirements of newness, materiality, and good
cause. Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993). If Claimant fails to satisfy
all three elements, the Appeals Council’s denial of Claimant’s request to remand must be
affirmed.
“New” evidence is evidence “not in existence or available to the claimant at the
time of the administrative proceeding.” Id. (quoting Sullivan v. Finkelstein, 496 U.S.
617, 626 (1990)). Evidence is “material” if there is a “reasonable probability” the
Commissioner would reach a different conclusion if the “new” evidence is considered.
See Id. A showing of “good cause” is met if a claimant can demonstrate “sufficient
reason for failing to incorporate the evidence into the record during the administrative
proceeding.” Id.
III. DISCUSSION
Claimant argues that Dr. Konowitz’s December 23, 2011 deposition testimony is
new and material evidence and that there is good cause why that evidence was not
submitted to the ALJ at the September 27, 2011 hearing or before the ALJ issued her
November 16, 2011 decision. [DE #19, 36]. The Commissioner focuses primarily on the
good cause requirement in its response to Claimant’s Motion for Summary Judgment.
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[DE #29]. Though the Commissioner has addressed neither newness nor materiality
directly, the Court does not believe the Commissioner has waived those arguments.
Accordingly, the Court addresses all three elements of 42 U.S.C. § 405(g) to demonstrate
remand is unwarranted.
A.

CLAIMANT FAILED TO DEMONSTRATE NEWNESS
Claimant has failed to demonstrate that Dr. Konowitz could not have provided

testimony substantially similar to the testimony he gave in Claimant’s worker
compensation case at the time of the ALJ’s hearing on September 27, 2011. Claimant
argues that Dr. Konowitz’s testimony on December 23, 2011, “further explained his
findings” and included five months of treatment following the doctor’s issued report
dated July 12, 2011. [DE #19 at 6-7]. Though Dr. Konowitz’s December 2011 deposition
testimony was technically not in existence at the time of the ALJ’s hearing, his testimony
was not unavailable to Claimant at the time of the hearing before the ALJ.
There is nothing in Dr. Konowitz’s testimony to indicate Claimant’s condition
changed markedly between the date of the hearing before the ALJ and the doctor's
December 2011 deposition. Dr. Konowitz testified that at “every visit. . . he [Claimant]
stayed very consistent,” and that Claimant’s base line of pain has been consistent over
two years, from October 2009 to December 2011. (R. 1110, 1114, 1119-20, 1140-41, 1147,
1155). If Claimant’s condition did not change materially between the date of the ALJ’s
decision and Dr. Konowitz’s deposition, Claimant must explain why Dr. Konowitz was
unable to provide the same testimony before the ALJ as he gave in his deposition. Dr.
Konowitz’s deposition testimony technically was not in existence before December 2011,
but it was based on medical records and evidence that was available at the time of the
ALJ’s hearing. (R. 24-25, 1095-1172).
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Because Dr. Konowitz’s testimony could have been made available at the time of
the administrative proceeding (for example, Claimant could have had Dr. Konowitz
testify before the ALJ), the testimony does not qualify as “new.” See Perkins v. Chater,
107 F.3d 1290, 1296 (7th Cir. 1997) (“Even though Dr. Reich's evaluations were
technically not in existence. . . he based his conclusions entirely on evidence that had
long been available. . . this derivative evidence was thus also ‘available’ at the time of the
earlier proceeding and does not qualify under sentence six as ‘new.’”).
B.

CLAIMANT FAILED TO DEMONSTATE MATERIALITY
Claimant has not demonstrated that there is a reasonable probability the

Commissioner would reach a different conclusion if Dr. Konowitz’s testimony is
considered. Claimant argues that Dr. Konowitz’s deposition testimony clarifies that
Ruud “cannot work at a light duty level for an extended period of time” warranting readjudication of the case. [DE #19 at 8]. The ALJ, however, considered the nuances of
Claimant’s limitation to light duty work in her decision. (R. 13). Dr. Konowitz's
deposition testimony adds nothing material to the evidence in the record before the
ALJ.
The ALJ determined that Ruud is able to perform light work as defined in 20 CFR
404.1657(b), but Claimant is unable to “climb ladders, ropes, or scaffolds, can only
occasionally perform postural activities and is limited to performing simple routine,
repetitive work due to pain.” Id. The ALJ did not conclude that Claimant had the
residual functional capacity to perform a full range of light work. She acknowledged that
“additional limitations impede claimant’s ability to perform all or substantially all
requirements of this level of work.” (R. 19). The ALJ nonetheless determined Claimant
would be able to perform a number of jobs in the economy. Id. Accordingly, the ALJ
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already has considered Ruud’s inability to perform the full range of light duty work at all
times and under all circumstances, and Dr. Konowitz’s deposition testimony from
December 2011 is not likely to change her decision in that respect upon remand.
Stated another way, the character of Dr. Konowitz’s deposition testimony is not
so different from the evidence already in the record before the ALJ, nor does it so alter
the playing field for Claimant, that the ALJ would be likely to reconsider her denial of
disability benefits. Absent Claimant showing there is a reasonable probability the ALJ
would reach a different conclusion in light of Dr. Konowitz’s testimony, remand must be
denied. See Shalala, 999 F.2d at 1144.
Dr. Konowitz’s labeling of Claimant’s functional capacity as limited to light duty
or sedentary work is not controlling. (R. 905, 911, 1071, 1130). It is the ALJ’s job to
determine Claimant’s residual functional capacity. Liskowitz v. Astrue, 559 F.3d 736,
740 (7th Cir. 2009). The ALJ did so here based on her evaluation of all the evidence in
the record, including Dr. Konowitz’s treatment notes. (R. 16). It is very unlikely that the
ALJ would have changed her evaluation of Claimant based on Dr. Konowitz’s after-thefact deposition testimony now highlighted by Claimant.
C.

CLAIMANT FAILED TO DEMONSTRATE GOOD CAUSE
Even if Dr. Konowitz’s deposition testimony from December 23, 2011 were new

and/or material evidence, Claimant must show good cause for his failure to include that
testimony in the administrative record. 42 U.S.C. § 405(g). See also Perkins, 107 F.3d at
1296. In Perkins, the Seventh Circuit found that Claimant had not shown good cause for
not including in the record a report critiquing the ALJ’s opinion, which clearly could not
have been done before the opinion was issued. Id. To do so, the Court of Appeals
reasoned, would undermine the administrative process by granting “automatic
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permission to supplement records with new evidence after the ALJ issues a decision.”
Id. The mere fact that Dr. Konowitz’s testimony was informed by his treatment of
Claimant for some months after the period covered by his notes and report already in
the record before the ALJ does not show good cause. If it did, then, as the Seventh
Circuit explained in Perkins, the administrative record would remain open forever.
Because Claimant fails to provide a sufficient reason Dr. Konowitz’s “further
[explanation] of his findings and Ruud’s ability to work light duty” could not have been
introduced before the ALJ, Claimant fails to demonstrate good cause. [DE #19 at 7]. See
Cromer v. Apfel, No. 00-1858, 2000 WL 1544778, at *4 (7th Cir. Oct, 16, 2000)
(explaining that good cause is lacking where Claimant could have obtained medical
evaluations when case was before ALJ) (citing Campbell v. Shalala, 988 F.2d 741, 745
(7th Cir. 1993)).
III. CONCLUSION
For the reasons set forth above, the Court denies Claimant’s motion for summary
judgment [DE #17] and grants the Commissioner’s motion for summary judgment [DE
#28]. The Appeals Council’s decision to deny remand for further proceedings is
affirmed.
It is so ordered.

ENTERED:

_______________________
Jeffrey T. Gilbert
United States Magistrate Judge
DATE: July 16, 2014
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