HARDISTER v. COLVIN

Filing 23

ENTRY on Judicial Review-For reasons set forth in this Entry, the Commissioner's decision is REVERSED and REMANDED. Signed by Magistrate Judge Denise K. LaRue on 1/21/2015.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ELIZABETH HARDISTER,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.

No. 1:13-cv-01598-DKL-WTL

ENTRY ON JUDICAL REVIEW
Plaintiff Mary Etta Hardister (“Hardister”) requests judicial review of the decision
of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration (the “Commissioner”), denying Hardister’s applications for disability
insurance benefits (“DIB”) and Supplemental Security Income (“SSI”). For the reasons
set forth below, the Commissioner=s decision is REVERSED and REMANDED.

I.

Background

A. Procedural History
Hardister filed an applications for DIB and SSI on February 25, 2010, alleging an
onset of disability of February 5, 2010. [Dkt. 9-2 at 21.] Hardister’s application was
denied initially on April 30, 2010, and upon reconsideration on July 13, 2010.

Id.

Hardister requested a hearing, which was held on November 3, 2011, before
Administrative Law Judge Charles W. Ardery (“ALJ”). The ALJ denied Hardister’s
application on June 22, 2012. [Dkt. 9-2 at 18.] The Appeals Council denied Hardister’s
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request for review of the ALJ’s decision on August 6, 2013, making the ALJ’s decision
final for purposes of judicial review. [Dkt. 9-2 at 2.] Hardister filed her Complaint with
this Court on October 4, 2013. [Dkt. 1.]
B. Factual Background and Medical History
Hardister was born on May 18, 1949, and was 62 years old at the time of the
hearing. She has past relevant work as a secretary and data entry clerk. Hardister
testified that she left her most recent employment as a data entry clerk with the State of
Indiana in February 2010 due to constant pain in her back, shoulders, arms and neck. The
ALJ found Hardister suffers from the severe impairments of mild to moderate
degenerative disc disease in the cervical spine; minimal degenerative disc disease in the
thoracic spine; diffuse mild hypertrophic endplate changes in the lumbar spine; and mild
hypertrophic changes in the bilateral shoulders. The ALJ evaluated Hardister’s
impairments under Listing 1.04 for disorders of the spine, but found the objective
evidence failed to demonstrate the conditions resulted in compromise of the spinal cord
or nerve root.
The ALJ issued his unfavorable decision on June 22, 2012. On July 11, 2012,
Hardister underwent MRIs of the cervical and lumbar spine. She subsequently provided
the Appeals Council with those results and a Clinical Summary dated July 9, 2012. In its
denial of her appeal, the Appeals Council noted that “this new information is about a
later time. Therefore, it does not affect the decision about whether you were disabled
beginning on or before June 22, 2012.” [Dkt. 9-2 at 3.] The Appeals Council further
explained that Hardister should file a new claim if she wanted the Commissioner to
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consider whether she was disabled after June 22, 2012. Hardister now argues the Appeals
Council committed an error of law because it failed to properly consider the new medical
evidence.
II.

Standard of Review

The issue of whether the Appeals Council properly rejected an appeal is distinct
from whether an ALJ's decision is supported by substantial evidence. Farrell v. Astrue,
692 F.3d 767, 770–71 (7th Cir. 2012). To review additional evidence, the Appeals Council
must determine whether the evidence is new and material:
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 [ALJ]
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 [ALJ] hearing decision. It will then review the case if it
finds that the [ALJ's] action, findings, or conclusion is
contrary to the weight of the evidence currently of record.
20 C.F.R. § 404.970(b).
A district court may review de novo whether the Appeals Council made an error of
law in applying this regulation. Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997). If an
error of law exists, then remand may be appropriate; otherwise, “the Council's decision
whether to review is discretionary and unreviewable.” Id. While this Court cannot use
evidence that was not before the ALJ to reevaluate the ALJ's factual findings, remand
may still be appropriate if the Appeals Council made an error of law. Farrell, 692 F.3d at
770–71.

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III.

Discussion

Hardister submitted several pieces of new evidence to the Appeals Council for
review:


Cover letter dated July 19, 2012, from Hardister’s attorney
(included in the record by the Appeals Council as Exhibit
15E);



Lumbar and Cervical MRSs dated July 11, 2012 (which were
attached to the above cover letter but returned to Hardister
and not included in the record by the Appeals Council) [Dkt.
14-1 at 7-8];



Cover letter dated August 1, 2012, from Hardister’s attorney
(included in the record as Exhibit 14F);



Clinical Summary dated July 9, 2012 (attached to above cover
letter but returned to Hardister and not included in the
record) and



Plan of Care dated June 11, 2012 (included in the record as
Exhibit 14F).

Hardister asserts the Appeals Council committed legal error by rejecting the MRI
results and Clinical Summary. Returning these documents to Hardister, the Appeals
Council noted they were “about a later time” and therefore did not affect the decision
about whether Hardister was disabled on or before June 22, 2012. [Dkt. 9-2 at 2.] The
question before the Court is whether the Appeals Council’s decision to reject these
documents constituted an error of law.
To be added to the administrative record on appeal, evidence must qualify as both
new and material. Evidence is considered new if it is new to the administrative record.
Farrell, 692 F.3d at 771. There is no dispute the MRIs and Clinical Summary are “new”
because they did not exist before the hearing. New evidence is material if it relates to the
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period on or before the date of the ALJ hearing and there is a “reasonable probability that
the ALJ would have reached a different conclusion had the evidence been considered.”
Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005); 20 C.F.R. § 404.970(b).
As even the Commissioner admits, the Appeals Council here failed to consider
whether the MRIs and Clinical Summary related to impairments Hardister possessed
prior to the ALJ’s decision. The Commissioner argues this error was harmless. The Court
disagrees.

The ALJ noted a lack of objective evidence to support Hardister’s claim of

severe back pain in several places in his opinion: objective medical evidence fails to
demonstrate these conditions result in compromise of the spinal cord or nerve root [Dkt.
9-2 at 26]; 2011 X-rays showed only “mild” irregularities and possible impingement and
failed to demonstrate significant abnormalities supporting alleged symptoms [Dkt. 9-2 at
27-28]; primary treating source records fail to indicate any significant ongoing cervical
spine limitations [Dkt. 9-2 at 28.] The MRI findings fill this “evidentiary gap.” See Farrell,
692 F.3d at 771. The cervical MRI found multiple abnormalities including “moderate to
severe left neural foraminal compromise” at the C5-C6 and the lumbar MRI also noted
abnormalities. [Dkt. 14-1 at 7-8.] The Appeals Council’s rejection of this evidence was
not harmless. These MRI results provide the objective confirmation of Hardister’s
symptoms and call into doubt the ALJ’s RFC determination that she could perform light
work. The Appeals Council’s failure to consider this information was erroneous and
warrants remand.

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IV.

Conclusion

The Appeals Council committed reversible error when it refused to consider
Hardister’s additional evidence in her appeal.

The matter must be reversed and

remanded to the Commissioner of Social Security under sentence four of 20 C.F.R. §
405(g). On remand, the ALJ should consider Hardister’s claims of disability in light of
the additional evidence submitted to the Appeals Council.

01/21/2015
Date: _____________

Distribution:
Jennifer Michelle Hess
PETIT & HESS
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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