Gamez v. Commissioner of Social Security

Filing 25

OPINION AND ORDER: The final decision of the Commissioner of Social Security denying plaintiff Cathleen Gamez's application for Disability Insurance Benefits is AFFIRMED. Judgment is entered in favor of the Commissioner and against plaintiff Gamez. Signed by Chief Judge Philip P Simon on 12/14/2016. cc: Gamez (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CATHLEEN GAMEZ,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN COLVIN, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)

3:15CV497-PPS

OPINION AND ORDER
Plaintiff Cathleen Gamez, acting pro se, appeals the decision of an Administrative
Law Judge denying her application for Social Security disability benefits. [DE 1.]
Judicial review of that decision is limited. If an ALJ’s findings of fact are supported by
“substantial evidence,” then they must be sustained. See 42 U.S.C. § 405(g); Overman v.
Astrue, 546 F.3d 456, 462 (7th Cir. 2008). Gamez claims to have become disabled
following a car accident in 2009, after which she received private disability benefits in
the short-term and then on a longer term basis. [DE 9 at 28.]1
In the aftermath of the accident, Gamez underwent a discectomy and fusion to
address persistent neck pain. [Id. at 29.] The ALJ found that Gamez had two severe
impairments: cervical degenerative disc disease/post laminectomy syndrome and

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The administrative record is found in the court record at docket entry 9, and consists of
571 pages. I will cite to its pages according to the court’s Electronic Case Filing page number,
rather than by the Social Security Administration’s Bates stamp numbers, which don’t begin until
page 6 of 571 as the pages are enumerated in ECF.

obesity. [Id. at 26.] The ALJ ultimately concluded that Gamez retained the residual
functional capacity to perform sedentary work with certain functional limitations
intended to address her claims of diminished mobility, periods of pain and the effects of
pain medications. [Id. at 27, 32.]
This judicial appeal actually comes after two ALJ hearings and two ALJ
decisions, each followed by a request for the administrative Appeals Council’s review.
After the ALJ’s first decision [DE 9 at 83], the Appeals Council remanded Gamez’s case
to the ALJ for a new hearing [id. at 100], and directed that the ALJ give additional
consideration to Gamez’s maximum residual functional capacity. [Id. at 101.] After the
remand and a new hearing, the ALJ issued a second decision on March 26, 2014, again
concluding that Gamez was not disabled. [Id. at 24.] Gamez sought a second reversal
by the Appeals Council, but her appeal was unsuccessful. [Id. at 6.]
The Appeals Council’s second decision reflects that the Council looked at
medical records Gamez submitted to it from the i-Spine Institute dated May 2, 2014
through November 12, 2014 and May 13, 2015. Here’s what the Appeals Council had to
say about this late arriving new information:
This new information is about a later time. Therefore, it does not affect
the decision about whether you were disabled beginning on or before
March 26, 2014. If you want us to consider whether you were disabled
after March 26, 2014, you need to apply again. The new information you
submitted is available in your electronic file for you to use in your new
claim.
[Id. at 7.]
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Now Gamez comes to the federal court seeking a reversal of the ALJ’s decision
that she was not disabled. The ALJ’s written Decision explains her conclusion that
“[t]he claimant has not been under a disability, as defined in the Social Security Act,
from May 4, 2009, through the date of this decision.” [Id. at 34.] The date of that
decision was March 26, 2014, and it stands as “the final decision of the Commissioner of
Social Security in [Gamez’s] case.” [Id. at 6.] The process of review, both administrative
and judicial, focuses on the correctness of that decision at the time it was rendered,
based on the evidentiary record that was before the ALJ. As the Appeals Council
explained, medical records reflecting Gamez’s condition on later dates in 2014 and 2015
aren’t relevant to determining whether the ALJ’s decision was flawed.
To hold otherwise would be to put Social Security cases on a never ending
merry-go-round where appeals are taken based on new information, followed by
remands to consider that new information, followed again by another appeal and
potentially additional new information, and so on. There has to be finality to a request
for benefits. But that does not leave the applicant out of luck. She can reapply for
benefits and provide the updated medical records in the renewed application. That is
what the Appeals Council was advising Ms. Gamez to do. While this may seem
unwieldy, the need for some sense of finality to the original request for benefits is
important.

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Unfortunately, Ms. Gamez has repeated the same approach in this judicial
appeal, submitting the same post-ALJ medical records [DE 12 at 3-5], to which she also
added even more recent medical records from December 2015 and mid-2016. [DE 12 at
2, DE 17 at 2-5.] Perhaps Ms. Gamez is simply being persistent or perhaps she doesn’t
fully understand what the Appeals Council (and now this Court) has told her. But in
either event, Ms. Gamez has to start the process anew. This is because the only stated
basis for her complaint to this court is that “[e]vidence since April 2014 was not
considered” by the Commissioner. [DE 1 at 1.] But as the applicable regulations
provide:
The Appeals Council will consider all the evidence in the administrative
law judge hearing record as well as any new and material evidence
submitted to it that relates to the period on or before the date of the
administrative law judge hearing decision. If you submit evidence that
does not relate to the period on or before the date of the administrative
law judge hearing decision, the Appeals Council will explain why it did
not accept the additional evidence and will advise you of your right to file
a new application.
20 C.F.R. §404.976(b)(1). The Appeals Council’s action in Gamez’s case was just as this
regulation requires. “Medical evidence postdating the ALJ’s decision, unless it speaks
to the patient’s condition at or before the time of the administrative hearing, could not
have affected the ALJ’s decision and therefore does not meet the materiality
requirement.” Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008). See also Rice v. Barnhart,
384 F.3d 363, 366 n.2 (7th Cir. 2004) (evidence that was not before the ALJ, and any
argument based on such evidence, cannot support a court finding of reversible error).
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Gamez’s treating physician strongly supports her disability application, and I
fully understand that Ms. Gamez believes Dr. Gottlieb’s repeated indications in this
regard should influence the Commissioner to award her disability benefits. Perhaps it
will. But the medical records based on her treatment after the ALJ’s last decision can’t be
relied upon as a basis to reverse her denial of benefits. “Medical records that were not
available to the ALJ cannot be used to determine the correctness of the ALJ’s decision.”
Slayton v. Colvin, 629 Fed.Appx. 764, 771 (7th Cir. 2015). See also Eads v. Secretary of the
Dep’t of Health and Human Services, 983 F.2d 815, 818 (7th Cir. 1993) (“courts may not
reverse an administrative law judge’s decision on the basis of evidence first submitted
to the Appeals Council”).
As the Appeals Council explained to Ms. Gamez, she must file a new application
in order to make the more recent medical information a part of the record on which the
disability decision would be made: “If you want us to consider whether you were
disabled after March 26, 2014, you need to apply again. The new information you
submitted is available in your electronic file for you to use in your new claim.” [DE 9 at
7.] If a claimant’s condition has worsened after the ALJ rendered her decision and more
recent medical evidence is to be considered, the claimant must file a new application for
benefits. Getch, 539 F.3d at 484.
In the meantime, Gamez’s appeal to this court does not present a basis for
reversing the ALJ’s decision, because she attempts no showing that the decision was not

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supported by substantial evidence. 42 U.S.C. §405(g). Substantial evidence consists of
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). In making a substantial evidence determination, I
must review the record as a whole, but I can’t re-weigh the evidence or substitute my
judgment for that of the ALJ. Overman, 546 F.3d at 462. The ALJ’s decision must
provide an “‘accurate and logical bridge’ between the evidence and the conclusion that
the claimant is not disabled,” to enable the reviewing court to assess the
Commissioner’s ultimate determination as to disability. Craft v. Astrue, 539 F.3d 668,
673 (7th Cir. 2008), quoting Young v. Barnhart, 362 F.3d 994, 1002 (7th Cir. 2004). Gamez’s
challenge, based entirely on post-decision medical evidence, fails to show that the ALJ’s
decision does not meet these standards.
ACCORDINGLY:
The final decision of the Commissioner of Social Security denying plaintiff
Cathleen Gamez’s application for Disability Insurance Benefits is AFFIRMED.
The Clerk shall enter judgment in favor of the Commissioner and against
plaintiff Gamez.
SO ORDERED.
ENTERED: December 14, 2016
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
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UNITED STATES DISTRICT COURT

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