LAVENDER v. BERRYHILL

Filing 26

ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF COMPLAINT: The Court finds no legal basis to reverse the ALJ's decision that Lavender was not disabled during the relevant time period. Therefore, the decision below is AFFIRMED. Final judgment will issue accordingly. See Order. Signed by Magistrate Judge Tim A. Baker on 5/17/2018.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KENNETH LAVENDER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

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No. 1:17-cv-01759-TAB-TWP

ORDER ON PLAINTIFF’S BRIEF IN SUPPORT OF COMPLAINT
I.

Introduction
Plaintiff Kenneth Lavender has a long history of bilateral knee problems, with several

past surgeries. He remained working while receiving injections from the Veterans
Administration for pain in the right knee, until he further injured it at work. After the injury,
Lavender received a worker’s compensation settlement through his employer and required
arthroscopic surgery to repair a torn meniscus. His recovery was complicated by a blood clot in
his leg, but with physical therapy he was released back to work at maximum medical
improvement with a 10% permanent partial impairment and permanent postural restrictions.
More than a year after the injury, Lavender filed for disability insurance benefits and
supplemental security income from the Social Security Administration asserting a complete
inability to engage in substantial gainful activity. While awaiting his hearing with an
Administrative Law Judge, Lavender suffered a second meniscus tear in the same knee, which
again required arthroscopic surgery.
Following SSA’s denial of his applications for benefits, Lavender filed this suit asserting
that the ALJ’s conclusion that he could sustain the ability to stand and walk most of the day in

order to complete light work is not supported by substantial evidence. He further asserts that the
ALJ’s decision to give limited weight to the opinion of a treating specialist and the Appeals
Council’s decision that evidence submitted after the hearing was not new and material are
contrary to the regulations. [Filing No. 17.] As explained below, the ALJ’s decision is far from
perfect, but nevertheless, the Court denies Lavender’s request to remand his claims and affirms
the ALJ’s decision.
II.

Background
The SSA denied Lavender’s DIB and SSI applications both initially and upon

reconsideration. The ALJ held a hearing and issued a decision finding that Lavender was not
disabled. The ALJ found Lavender had the following severe impairments: “osteoarthritis of the
bilateral knees, obesity, and diabetes.” [Filing No. 13-2, at ECF p. 32; R. at 31.] In light of the
entire record, the ALJ found that Lavender retained the residual functional capacity to perform a
reduced range of light work including the ability to stand and walk for six hours out of an eight
hour day with the opportunity to alternate positions for one to two minutes every thirty minutes.
The ALJ’s RFC finding stated that Lavender “can never climb, ladders, ropes, or scaffolds; he
can perform all other postural activities on an occasional basis . . . .” [Filing No. 13-2, at ECF p.
33; R. at 32.] With the assistance of a vocational expert, the ALJ found that Lavender was
unable to return to his past relevant work as a maintenance mechanic based on the RFC finding.
However, the VE testified based on a consideration of Lavender’s age, education, work
experience, and RFC, that he retained the ability to perform other light jobs that exist in
significant numbers in the national economy, including representative occupations as a survey
worker clerk, information clerk, and cashier.

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Lavender appealed the ALJ’s March 15, 2016, decision to the Appeals Council and
submitted additional medical evidence, consisting of an April 7, 2016, VA compensation and
pension assessment. [Filing No. 13-15, at ECF p. 43-56; R. at 1081-94.] The Appeals Council
denied Lavender’s request for review and this suit followed.
III.

Discussion
A. The ALJ’s RFC Finding
Lavender takes issue with the ALJ’s RFC finding, specifically arguing the ALJ’s

conclusion that he would be capable of standing and/or walking for a total of six hours in an
eight-hour workday is not supported by substantial evidence. When an applicant appeals an
adverse benefits decision, this Court’s role is limited to ensuring that the ALJ applied the correct
legal standards and that substantial evidence exists for the ALJ’s decision. Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review,
“[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quotation omitted). To determine whether substantial evidence
exists, the Court reviews the record as a whole but is not allowed to substitute its judgment for
the ALJ's "by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or
deciding questions of credibility." Williams v. Apfel, 179 F.3d 1066, 1071-72 (7th Cir. 1999)
(internal quotations omitted). Lavender argues that the standing and walking conclusion in
particular is inconsistent with a history of arthritis, meniscal tears, multiple surgeries including
two since the alleged onset date, numerous injections, an antalgic gait even with a cane, objective
diagnostic imaging, crepitus, limited range of motion, and complaints of pain and weakness, all
predominantly involving Lavender’s knees. However, the Court does not agree under the
deferential standard that the ALJ’s conclusion is unsupported.

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First, the ALJ’s decision adequately sets forth the potentially conflicting evidence that
Lavender cites, including the treatment history, complaints, and objective testing. [Filing No.
13-2, at ECF p. 34; R. at 33.] While the “ALJ need not discuss every piece of evidence in the
record . . . the ALJ may not ignore an entire line of evidence that is contrary to the ruling.”
Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (citation omitted). The Court
cannot conclude that the ALJ was not aware of the evidence that Lavender offers and otherwise
does not see any significant omissions in the ALJ’s discussion of the evidence.
Second, the ALJ supports her conclusion by noting that Lavender had a good response to
treatment, including both surgeries during the period at issue.1 The ALJ cited findings from the
consultative examination performed between the two surgeries, indicating “normal posture and
an antalgic gait with good stability, fair speed, and fair sustainability (Ex. 5F/4).” [Filing No.
13-2, at ECF p. 35; R. at 34 (citing Filing No. 13-9, at ECF p. 88; R. at 583.] The ALJ also cited
to some of the most recent evidence of record, an examination following the second surgery that
indicated normal gait and station with no focal weakness. [Filing No. 13-15, at ECF p. 39; R. at
1077.] Despite the ALJ offering limited evidentiary support by citation to the record showing
improvement, the Court finds adequate relevant evidence that a reasonable mind could come to
her conclusion, including the two examinations and additional evidence detailed later in this
order in connection with specific arguments.
Third, the ALJ gave great weight to the opinions of two state agency medical consultants
who reviewed a partial record and determined that Lavender was capable of a reduced range of
light work consistent with the ALJ’s RFC. [Filing No. 13-2, at ECF p. 36; R. at 35 (citing Filing

The Court is aware that Lavender has a history of multiple knee surgeries prior to the period of
issue. However, references in this order will refer to the first and second surgery within the
period of issue for purposes of clarity in describing the relevant timeline.
1

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No. 13-3, at ECF p. 15-17; R. at 89-91; Filing No. 13-3, at ECF p. 37-39; R. at 111-13).] The
ALJ noted that their opinions were consistent with the updated record as a whole, including
treatment that had been “largely beneficial.” [Filing No. 13-2, at ECF p. 36; R. at 35.] The
Court does not agree with Lavender that the ALJ never explained the evidence that supported her
RFC finding.
Lavender’s general argument is little more than an invitation to the Court to reweigh the
evidence. Even if the Court agreed that the evidence Lavender suggests conflicts with the ALJ’s
RFC finding, or was persuasive in establishing a disability, the governing standard precludes
relief. Indeed, the Seventh Circuit has recognized that “challenges to the sufficiency of the
evidence rarely succeed” under this standard. Schmidt v. Barnhart, 395 F.3d 737 (7th Cir. 2005).
The Court does not find the ALJ’s conclusion to lack substantial support. However, the Court
will address more specific arguments that Lavender makes in connection with his general
argument above.
B. Pain Medication
Lavender takes issue with the ALJ’s conclusion that his refusal to take pain medication
undermined his allegations regarding the severity of his pain. In support, Lavender relies on the
Seventh Circuit precedent in Childress, “[s]imilarly, it was wrong of the administrative law
judge to fault Childress for not taking strong opioids for pain, when his medical conditions did
not require them and, as is now well known, opioids can be very dangerous.” Childress v.
Colvin, 845 F.3d 789, 793 (7th Cir. 2017). Childress involved a challenge to an ALJ’s
credibility finding, an argument that Lavender does not directly make here. Id. at 790. The
claim also involved a whole host of predominantly cardiac and lung impairments, though it did
also include complaints of leg pain. Id. at 790-91.

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Lavender’s argument again challenges the ALJ’s decision under a deferential standard,
albeit implicitly this time. An ALJ’s credibility determination will not be overturned unless
“patently wrong.” Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1995); see also Elder v. Astrue,
529 F.3d 408, 413–14 (7th Cir. 2008) (“[i]t is only when the ALJ's determination lacks any
explanation or support that we will declare it ‘patently wrong’”); Prochaska v. Barnhart, 454
F.3d 731, 738 (7th Cir. 2006) (“[o]nly if the trier of facts grounds his credibility finding in an
observation or argument that is unreasonable or unsupported can the finding be reversed.”).
Lavender does have a point. There is more than one conclusion to draw from Lavender
refusing long-term use of narcotic pain medication. The record does not clearly indicate whether
the reason was due to intolerable side effects or the potentially dangerous habit forming effects.
The record indicates that even after maximum medical improvement following the first knee
surgery, Lavender still complained of ongoing pain that his treating specialist attributed to
underlying arthritis not addressed by the treatment for his injury. Lavender also received
injections in his knee for pain during the period at issue. Even the visit the ALJ cites showing
that he was no longer taking narcotics or non-steroidal anti-inflammatory drugs (“NSAIDS”)
lists the chief complaint necessitating the visit to be bilateral knee pain and resulted in Lavender
being prescribed bilateral heal wedges and a trial of different NSAIDS (as previous medications
of this class had caused side effects.) [Filing No. 13-15, at ECF p. 36; R. at 1074.] The record
indicates that some level of pain clearly remained.
Still, the ALJ’s conclusion is not unfounded. At the previous outpatient visit, Lavender
was no longer taking opiates after the second knee surgery because his pain was improving.
[Filing No. 13-15, at ECF p. 37; R. at 1075.] More important, unlike in Childress, in which the
ALJ’s reliance on a claimant not taking pain medication was just one of a number of unsupported

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or unreasonable conclusions supporting a credibility determination, the ALJ further bolstered her
credibility determination here with other evidence of improvement following the surgeries,
including the examination findings. Moreover, Lavender testified at the hearing that he was
regularly taking a pain reliever, which does appear to be contradicted by the medical evidence
the ALJ cited. [Filing No. 13-2, at ECF p. 66; R. at 65.] To the extent the ALJ’s conclusion was
unreasonable in light of the dangers of opioid addiction and evidence of Lavender seeking pain
relief by other means, the Court does not find the totality of the ALJ’s credibility determination
to be patently wrong, and Lavender has not sufficiently developed an argument to the contrary.
Similarly, Lavender argues that the ALJ’s failure to inquire into the inconsistency
between his allegations of pain and his refusal to take pain medication “is harmful error.” [Filing
No. 17 (citing Beardsley v. Colvin, 758 F.3d 834 (7th Cir. 2014)).] However, the Court finds
Beardsley inapplicable. The ALJ did inquire into his complaints of pain at the hearing and
Lavender testified that he does take pain medication regularly. The ALJ could have discovered
the discrepancy between his testimony and the medical record after the hearing in preparation of
the written decision. At any rate, the ALJ did not have any duty to ask him his reasons for not
liking narcotics based on his actual testimony that included he was taking a pain reliever.
C. Use of a Cane
Lavender also asserts harmful error arising from the ALJ’s discussion of his use of a
cane. In support, Lavender cites to Seventh Circuit precedent. “Absurdly, the administrative law
judge thought it suspicious that the plaintiff uses a cane, when no physician had prescribed a
cane. A cane does not require a prescription; it had been suggested to the plaintiff by an
occupational therapist.” Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). Again, Parker
involved a challenge to an ALJ’s credibility finding, which Lavender does not directly raise in

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this suit. Regardless, the Court does not read the ALJ’s decision as suggesting the fact that
Lavender used a cane without a prescription was in any way suspicious or that it was even a
factor used in assessing Lavender’s credibility. The ALJ was well aware of the evidence
showing the cane use. The reference that Lavender takes issue with was given in the context of
the ALJ summarizing her RFC findings, which did not include the need for the use of cane
(which Lavender rightly points out would be material to the determination of disability in his
case). The ALJ reasoned that while Lavender “used a cane at the hearing and after his knee
surgeries, there is no prescription for the cane in the medical record nor is there a statement in
regards to the cane being medically necessary.” [Filing No. 13-2, at ECF p. 35; R. at 34.]
Contrary to Lavender’s argument, the ALJ is actually required to consider such evidence
in assessing the RFC. “To find that a hand-held assistive device is medically required, there
must be medical documentation establishing the need for a hand-held assistive device to aid in
walking or standing, and describing the circumstances for which it is needed (i.e., whether all the
time, periodically, or only in certain situations; distance and terrain; and any other relevant
information).” SSR 96-9p; see also 20 C.F.R. § 402.35(b)(1) (“Social Security Rulings are
binding on all components of the Social Security Administration.”). Before addressing the lack
of any consistent standard among the circuits as to the precise requirements of the medical
documentation necessitated under the ruling, the Seventh Circuit described the difference
between evidence of use and necessity in Tripp:
In our view, the record adequately supports the finding of no medical necessity.
The record is replete with references to Tripp's use of “crutches,” “a crutch,” or “a
cane,” but these mentions are traceable to his self-reports and to physicians'
observations that he presented with an assistive device. Even the statement of Dr.
Motiani, who in his letter to the state agency asserted matter-of-factly that Tripp
“does need a crutch,” lacks the specificity necessary to determine whether this was
the doctor's medical opinion or merely a restatement of what was told to him by
Tripp.
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Tripp v. Astrue, 489 F. App'x 951, 955 (7th Cir. 2012) (emphasis in original). Lavender
“maintains that the objective and clinical findings summarized above indicate the cane is
medically necessary.” [Filing No. 17.] However, Lavender does not present any supporting
medical opinion from a source qualified to make that determination. Lavender also does not
present any evidence that was before the ALJ that at all conflicts with the ALJ’s reading of the
evidence as lacking either a prescription or some other statement of medical necessity. The
ALJ’s consideration of the evidentiary deficit does not constitute error.
D. Knee Replacement Surgery
Lavender also makes a fairly convoluted argument that the ALJ’s analysis of his need for
knee surgery was harmful error, asserting the ALJ’s discussion was not complete and that she
“essentially played doctor.” [Filing No. 17 (citing Minnick v. Colvin, 775 F.3d 929 (7th Cir.
2015).] However, this argument lacks merit. To begin with, in support of her credibility
determination, the ALJ discussed that Lavender “was found to not be a candidate for a knee
replacement due to the lack of a [sic] severity of his osteoarthritis (Ex. 11F/81).” [Filing No. 132, at ECF p. 35; R. at 34.] The reason the ALJ addressed the issue under credibility appears to be
because Lavender testified that he had been told by the provider that fixed his meniscus tear that
his knee was so bad that he needed a knee replacement, but that he was too young for the
procedure. [Filing No. 13-2, at ECF p. 53; R. at 52; Filing No. 13-2, at ECF p. 67; R. at 66.]
However, Lavender does not present any direct evidence in the medical record that he was ever
told he needed a knee replacement. Rather than playing doctor, the ALJ relied on a doctor’s
statement that Lavender was not a candidate for replacement due to lack of severe osteoarthritis
shown on an x-ray. [Filing No. 13-13, at ECF p. 82; R. at 897.] Lavender’s argument confuses
the issue by citing references to him needing to get his diabetes under better control in order to
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have the second knee surgery. The ALJ was well aware of the arthroscopic surgery for the torn
meniscus. The Court does not follow how Lavender feels the record implicitly reveals that he
does need a knee replacement in the first instance. The ALJ did not err by failing to divine the
same, and her reliance on the medical evidence was proper.
E. Treating Specialist Opinion
Perhaps Lavender’s strongest argument is that the ALJ erred in giving limited weight to
the opinions of his treating orthopedic surgeon, Dr. Czarkowski. Lavender’s argument invokes
the treating physician rule. In Scott, the Court described that a “treating doctor’s opinion
receives controlling weight if it is ‘well-supported’ and ‘not inconsistent with the other
substantial evidence’ in the record.” Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (citing
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th
Cir. 2010)). “An ALJ must offer ‘good reasons’ for discounting the opinion of a treating
physician.” Id. (citing Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011); Campbell, 627
F.3d at 306). “And even if there had been sound reasons for refusing to give [a treating
physician’s] assessment controlling weight, the ALJ still would have been required to determine
what value the assessment did merit.” Id. at 740 (citing Larson v. Astrue, 615 F.3d 744, 751 (7th
Cir. 2010)). “If an ALJ does not give a treating physician’s opinion controlling weight, the
regulations require the ALJ to consider the length, nature, and extent of the treatment
relationship, frequency of examination, the physician’s specialty, the types of tests performed,
and the consistency and supportability of the physician’s opinion.” Id. (citing Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009); 20 C.F.R. § 404.1527(c)).2

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In general, the legal standards applied are the same regardless of whether a claimant seeks DIB
or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this order should be considered to refer to the appropriate parallel
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The decision offers in relevant part:
The undersigned gives limited weight to the opinion of Robert Czarkowski, M.D.
(Ex. 6F/16, 17, 20, 23). He opined as to the claimant's limitations in the months
following his surgery, noting significant recovery and a reduction in the claimant's
degree of limitation. Notwithstanding, his opined restrictions are inconsistent with
the record as a whole. He opined on several occasions that the claimant could not
kneel, squat, or climb (Ex. 6F/5, 16, 20, 23). He further opined that the claimant
could perform a sitting job with occasional standing and walking as tolerated. The
objective medical evidence does not support this degree of limitation. Although
the claimant was found to have an antalgic gate [sic], he was noted for having good
stability, fair speed, and fair sustainability (Ex. 5F/4). Additionally, the record
show[s] that the claimant made significant improvement, as was noted by Dr.
Czarkowski (Exs. 6F/4, 8, 17). Accordingly, the opinion of Dr. Czarkowski is
given limited weight.
[Filing No. 13-2, at ECF p. 36; R. at 35.] The ALJ’s discussion of the evidence is not ideal; it
lumps two different medical source statements together and gives the same explanation for both
about the weight they were given.
On the one hand, there is Dr. Czarkowski’s statement that Lavender could perform a
sitting job with occasional standing and walking as tolerated. On April 10, 2013, shortly after
the injury that interrupted Lavender’s ability to work, Dr. Czarkowski performed the
arthroscopic surgery to repair his torn meniscus. [Filing No. 13-10, at ECF p. 34-35; R. at 62021.] On May 14, 2013, Dr. Czarkowski, who also provided the follow-up treatment during the
recovery phase after the surgery, opined work restrictions that Lavender could perform a sitting
job with occasional standing and walking as tolerated and no kneeling, squatting, or climbing.
[Filing No. 13-10, at ECF p. 21; R. at 607.] The ALJ’s explanation that the restrictions are
inconsistent with the record as a whole showing significant improvement is not the most direct
way of explaining why this particular restriction is not supported. The better explanation is that,

provision as context dictates. The same applies to citations of statutes or regulations found in
quoted decisions.
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looking at Dr. Czarkowski’s own treatment notes, it is clear that this particular restriction was
not intended to be permanent. Subsequent statements from Dr. Czarkowski give progressively
less restrictive limitations concerning Lavender’s ability to stand and walk. On June 28, 2013,
Dr. Czarkowski increased the amount of standing and walking to four hours in an eight-hour day,
with four hours of sitting. [Filing No. 13-10, at ECF p. 14; R. at 600.] Subsequent statements
removed any restrictions on standing and walking, keeping only the postural restrictions in place.
The treatment records support that the standing and walking limitation cited by the ALJ was
intended to be temporary during the recovery phase from surgery and is not a long-term
statement of Lavender’s ability to work in conjunction with the durational requirement of the
disability program. The ALJ’s explanation, though somewhat unclear, is supported that limited
weight could be given this particular statement based on Lavender’s improved capacity with
normal recovery from surgery.
On the other hand, there is Dr. Czarkowski’s statement that “Mr. Lavender was released
from my care on 8/19/13 and returned to work with permanent restrictions of no kneeling,
squatting or ladder climbing and he could use stairs in a limited fashion as tolerated.” [Filing
No. 13-10, at ECF p. 4; R. at 591.] The ALJ’s explanation for giving this statement limited
weight makes little sense. The evidence the ALJ cited pertaining to the sustainability of
Lavender’s gait would be relevant in contradiction with a reduced capacity to stand and walk, but
does not apply in the context of these postural restrictions. The ALJ also cites to evidence of
improvement in Dr. Czarkowski’s records, including a citation to the very same page that he
gave these permanent restrictions. Dr. Czarkowski was well aware of the improvement in
Lavender’s condition reflected in his own treatment records. Nonetheless, Dr. Czarkowski

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opined permanent postural restrictions that do not appear at all unreasonable in light of the
overall record, being fairly consistent with chronic knee problems.
Moreover, the ALJ failed to address any of the factors used to weigh opinions, which
would generally suggest that Dr. Czarkowski’s opinion was deserving of considerable deference,
as a treating, examining specialist. See 20 C.F.R. § 404.1527(c). The ALJ failed to provide any
evidence in the explanation of the weight that was given Dr. Czarkowski’s statement that
contradicts the restrictions. Furthermore, the Court is unable to determine from that explanation
if the ALJ was even aware that Dr. Czarkowski was giving both temporary and permanent
restrictions during the course of Lavender’s treatment, which seems to be a pretty important
consideration. The ALJ’s explanation is deficient and the Court agrees that it is erroneous.
The Commissioner argues that any error with respect to the weight given Dr. Czarkowski’s
opinion is nevertheless harmless. The Seventh Circuit has explained the standard by which error
can be ignored by the Court:
But administrative error may be harmless: we will not remand a case to the ALJ for
further specification where we are convinced that the ALJ will reach the same
result. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.2010). That would be a waste
of time and resources for both the Commissioner and the claimant. Thus, we look
at the evidence in the record to see if we can predict with great confidence what the
result on remand will be. We note (yet again, see Spiva, 628 F.3d at 353 and the
critical discussion therein) that the harmless error standard is not, as the
Commissioner and district court seem to believe, an exercise in rationalizing the
ALJ's decision and substituting our own hypothetical explanations for the ALJ's
inadequate articulation. We have already concluded that the ALJ erred. The
question before us is now prospective—can we say with great confidence what the
ALJ would do on remand—rather than retrospective.
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
The Commissioner presents evidence that the representative occupations the ALJ found
Lavender could perform do not include postural requirements that conflict with Dr.
Czarkowski’s permanent postural restrictions. The Dictionary of Occupational Titles indicates
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that for all of the representative jobs that kneeling, stooping, crouching, and climbing are “not
present.” See Information clerk, DICOT 237.367-018 (G.P.O.), 1991 WL 672187 (Jan. 1, 2016);
cashier II, DICOT 211.462-010 (G.P.O.), 1991 WL 671840 (Jan. 1, 2016); and survey worker
clerk, DICOT 205.367-0544, 1991 WL 671725 (Jan. 1, 2016). Lavender did not respond to this
particular argument. However, it appears to be pretty straightforward. In light of the evidence,
the Court finds that application of the harmless error doctrine is appropriate. The Court has great
confidence that even if the ALJ had given Dr. Czarkowski’s permanent postural restrictions
controlling weight and adopted them in her RFC finding, the DOT would indicate that the
restrictions would not preclude Lavender from performing the other work the ALJ found him
capable of at Step Five. Accordingly, despite the ALJ’s erroneous explanation of the weight
given Dr. Czarkowski’s opinion, the Court declines to remand the claim for further proceedings.
Doing so would be unnecessary.
F. Additional Evidence Submitted to the Appeals Council
Lavender’s final argument is that the Appeals Council erred in determining that evidence
submitted in connection with his appeal of the ALJ’s decision was not new and material to his
claim. The evidence that Lavender argues is new and material to his claim is a VA
compensation and pension report, based on an examination, which was dated April 7, 2016, just
two weeks prior to the date of the unfavorable decision.
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 and then:
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
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[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, 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. 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.
New evidence is material if it relates to the 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, 395 F.3d at 742. Evidence is material only if the evidence
“speaks to the [claimant’s] condition at or before the time of the administrative hearing.” Getch
v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008).
The Court finds the language of the Appeals Council order, which listed the evidence as
received, to track the language of 20 C F.R. § 404.970(b) almost precisely (cited above),
specifying what the Appeals Council will do when it does receive new and material evidence
relating to the period at issue:
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 Council.
We considered whether the Administrative Law Judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record. We found

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that this information does not provide a basis for changing the Administrative Law
Judge’s decision.
[Filing No. 13-2, at ECF p. 6; R. at 5.] The Seventh Circuit has explained that “if the Appeals
Council deemed the evidence new, material, and time-relevant but denied plenary review of the
ALJ’s decision based on its conclusion that the record—as supplemented—does not demonstrate
that the ALJ’s decision was ‘contrary to the weight of the evidence’—the Council’s decision not
to engage in plenary review is ‘discretionary and unreviewable.’” Stepp v. Colvin, 795 F.3d 711,
722 (7th Cir. 2015) (citing Perkins, 107 F.3d at 1294). In such a case, the Appeals Council’s
decision to not engage in plenary review would render the ALJ’s decision the only reviewable
decision of the Court. Id.
However, as the Commissioner points out, the language used by the Appeals Council
appears to be nearly identical to language that the Seventh Circuit has found to be ambiguous:
Here, the Appeals Council’s decision says that it “considered ... the additional
evidence ... [and] found that this information does not provide a basis for changing
the [ALJ’s] decision.”
We note that this text, which often appears in orders of the Appeals Council
rejecting plenary review, is not as clear as it might be. On the one hand, it might
indicate that the Appeals Council found the proffered new evidence to be
immaterial, but on the other hand it might indicate that the Council accepted the
evidence as material but found it insufficient to require a different result.
Farrell, 692 F.3d at 771. Following precedent, the Court will reach the limited question as to
whether the evidence qualifies as material, such that there is a "reasonable probability that the
ALJ would have reached a different conclusion had the evidence been considered." Schmidt,
395 F.3d at 742.
The Court finds that the evidence is not material under the standard. Lavender argues
that the evidence shows new problems with his left knee. However, the ALJ found and
considered a severe impairment in the bilateral knees. Lavender also asserts that the evidence
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contradicts the ALJ’s findings that he could stand and walk a total of six hours in an eight hour
workday and a cane was not medically necessary. The examination itself does not appear to be
materially different than others considered by the ALJ in the decision. [Filing No. 13-15, at ECF
p. 43-56; R. at 1081-94.] The examination did reveal abnormal range of motion of in both knees.
However, the examiner did not believe the finding to result in any functional loss. Muscle
strength was found to be full. There was no evidence of joint instability in either knee. It is true
that the report reflects that Lavender reported using a cane regularly. However, given the
examination findings being negative for weakness and instability, another report of cane use,
even if it does provide additional clarity on the amount of use, does not change the analysis
detailed above. There is still no indication that a cane is medically necessary. Moreover, when
the source was asked to comment on the impact on Lavender’s ability to perform any type of
occupational tasks, “such as standing, walking,” the provider only indicated that his ability to
climb stairs and ladders would be compromised. [Filing No. 13-15, at ECF p. 54; R. at 1092.]
Accordingly, the new evidence is not sufficient to require remand.
IV.

Conclusion
For the reasons set forth above, the Court finds no legal basis to reverse the ALJ’s

decision that Lavender was not disabled during the relevant time period. Therefore, the decision
below is AFFIRMED. Final judgment will issue accordingly.
Date: 5/17/2018

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

All ECF-registered counsel of record via email
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