Lucas v. Berryhill

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this cause is REMANDED for further proceedings consistent with this opinion. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on September 5, 2019. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
VIRGINIA K. LUCAS,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner
of Social Security,1
Defendant.

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No. 2:18 CV 45 CDP

MEMORANDUM AND ORDER
Plaintiff Virginia K. Lucas brings this action under 42 U.S.C. §§ 405(g) and
1383(c) seeking judicial review of the Commissioner’s final decision denying her
claims for disability insurance benefits (DIB) under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and for supplemental security income (SSI) under
Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. Because the Appeals Council
erred in refusing to consider new and material evidence submitted to it after the
administrative law judge’s (ALJ’s) decision, I will remand the matter to the
Commissioner for further consideration.
Procedural History
On October 22, 2015, the Social Security Administration denied Lucas’s
1

On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security. Pursuant to
Fed. R. Civ. P. 25(d), Saul is substituted for Deputy Commissioner Nancy A. Berryhill as
defendant in this action.

August 2015 applications for DIB and SSI in which she claimed she became
disabled on August 3, 2015, because of back pain, back injury, depression,
migraine headaches, back surgery, emotional stress, anxiety, and heel spur. At
Lucas’s request, a hearing was held before an ALJ on May 30, 2017, at which
Lucas and a vocational expert testified. On November 3, 2017, the ALJ denied
Lucas’s claims for benefits, finding that vocational expert testimony supported a
conclusion that Lucas could perform work that exists in significant numbers in the
national economy. On April 20, 2018, the Appeals Council denied Lucas’s request
for review of the ALJ’s decision. The ALJ’s decision is thus the final decision of
the Commissioner. 42 U.S.C. § 405(g).
In this action for judicial review, Lucas claims that the Appeals Council
erred in failing to consider new, material, and relevant evidence submitted after the
ALJ’s decision.2 Lucas asks that I reverse the final decision and remand the matter
to the Commissioner with instruction that it consider this additional evidence and
grant review of the ALJ’s decision.
For the reasons that follow, I will remand the matter to the Commissioner
with instruction to resubmit the additional evidence at issue to the Appeals Council
for appropriate consideration under the relevant Social Security Regulations. I will
2

In her complaint, Lucas raises additional claims of error. (ECF 1.) However, because she
raises only the Appeals Council error in her Brief in Support of the Complaint (ECF 12) and
states in a later filing that “the sole question for this Court to decide” is the claimed Appeals
Council error (ECF 24), I consider the additional claims raised in Lucas’s complaint abandoned.
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not instruct that the Appeals Council grant review of the ALJ’s decision. Whether
to grant review is within the province of the Appeals Council upon remand.
Medical Records and Other Evidence of Record
With respect to medical records and other evidence of record, I adopt
Lucas’s recitation of facts set forth in her Statement of Uncontroverted Material
Facts (ECF 13) and note that they are admitted by the Commissioner (ECF 21-1).
I also adopt the Commissioner’s Statement of Additional Facts (ECF 21-2), which
Lucas does not dispute (ECF 24). These statements provide a fair and accurate
description of the relevant record before the Court. Additional specific facts are
discussed as needed to address the parties’ arguments.
Relevant Background
Dr. James L. Deline has been Lucas’s treating physician since at least 1983.
He has treated her over the years for various ailments and conditions, including the
flu, sinusitis, depression, kidney stones, headaches, and back pain. He also
managed her pregnancies. Dr. Deline’s treatment records dated from 1983
through March 2017 were before the ALJ at the time of her decision. Among these
records was a letter dated October 27, 2015, directed to a Missouri state
representative, in which Dr. Deline described Lucas’s exertional and nonexertional limitations caused by her depression and back pain. (Tr. 597.)
After the ALJ rendered her adverse decision on November 3, 2017, Dr.
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Deline wrote a letter to the Appeals Council entitled “Letter of Appeal” in which
he detailed Lucas’s symptoms and work-related limitations caused by her
depression and back pain, noting that she was first diagnosed with depression in
1998, suffers from chronic back pain as confirmed by diagnostic tests, and has not
worked since February 2016 because of her impairments. (Tr. 32-34.) The letter is
dated November 30, 2017, and was received by the Appeals Council on December
22, 2017.3
The Appeals Council acknowledged its receipt of Dr. Deline’s November 30
letter but stated that the letter did not relate to the relevant period: “The
Administrative Law Judge decided your case through November 3, 2017. This
additional evidence does not relate to the period at issue. Therefore, it does not
affect the decision about whether you were disabled beginning on or before
November 3, 2017.” (Tr. 2.) Because the Social Security Regulations provide that
the Appeals Council does not accept additional evidence that does not relate to the
period on or before the date of the ALJ hearing decision, see 20 C.F.R. §§
404.970(c), 416.1470(c) (2017), it appears that the Appeals Council did not
consider the letter in determining whether to review the ALJ’s decision. Indeed,
the Appeals Council did not list Dr. Deline’s letter as additional evidence to be
made part of the administrative record. (Tr. 1, 6.)
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Although additional medical records were submitted to the Appeals Council, Lucas challenges
only the treatment given to Dr. Deline’s November 30 letter.
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Lucas contends that the Appeals Council erred in failing to consider Dr.
Deline’s letter in determining whether to review the ALJ’s decision. Because the
reason given by the Appeals Council to disregard this evidence is not supported by
the record, I agree with Lucas’s contention.
Discussion
The Appeals Council will review an ALJ’s decision if it receives additional
evidence that is “new, material, and relates to the period on or before the date of
the hearing decision, and there is a reasonable probability that the additional
evidence would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5),
416.1470(a)(5). Evidence submitted to the Appeals Council is material when it
relates to the claimant’s condition for the time period for which benefits were
denied, and not to “after-acquired conditions or post-decision deterioration of a
pre-existing condition.” Bergmann v. Apfel, 207 F.3d 1065, 1069-70 (8th Cir.
2000). See also Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (new
evidence concerning subsequent deterioration of a previously non-disabling
condition is not material).
When additional evidence is submitted to the Appeals Council
in an attempt to obtain review of an ALJ’s decision, and the Appeals
Council denies review with an express finding that the additional
evidence is not new or material, a reviewing court has jurisdiction to
determine whether the Appeals Council erred in determining that the
evidence was not “new” or “material” within the meaning of [the
Regulations].
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Goodwin v. Astrue, 549 F. Supp. 2d 1125, 1128-29 (D. Neb. 2008) (emphasis in
original) (citing Williams v. Sullivan, 905 F.2d 214, 215-16 (8th Cir. 1990)).
Whether evidence is actually new, material, and related to the adjudicated period is
a question of law the court reviews de novo. Box v. Shalala, 52 F.3d 168, 171 (8th
Cir. 1995).
“Medical evidence obtained after an ALJ decision is material if it relates to
the claimant’s condition on or before the date of the ALJ’s decision.” Williams,
905 F.3d at 216. The Appeals Council’s failure to consider such evidence “may be
a basis for remand by a reviewing court.” Box, 52 F.3d at 171. See also Whitney v.
Astrue, 668 F.3d 1004, 1006 (8th Cir. 2012); Boyd v. Astrue, No. 4:08CV02705
JLH/BD, 2009 WL 856699, at *4 (E.D. Ark. Mar. 30, 2009) (sentence four remand
appropriate where Appeals Council erred by not evaluating new evidence as
required by Regulations) (cited approvingly in Svoboda v. Berryhill, No. 4:17 CV
2437 (JMB), 2018 WL 3036464, at *8 (E.D. Mo. June 19, 2018)).
Here, the Appeals Council’s conclusion that Dr. Deline’s November 30
letter does not relate to the period on or before the ALJ’s November 3 decision is
incorrect. Merely because the evidence was obtained after the ALJ’s decision does
not render it immaterial. Williams, 905 F.2d at 216. In this case, Dr. Deline’s
letter states, in relevant part:
My patient, Virginia Lucas, has severe depression along with chronic
back pain. She is limited in daily activity and is unable to work on a
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sustained basis for any length of time. This diagnosis has been
confirmed through physical examination, medical history, X-Rays,
MRI’s, CT scans, labs, and psychological exam. Ms. Lucas was first
diagnosed with depression in 1998. She has not worked since
February 2016 due to her disabilities. She is on medication,
including pain medication with anti-depressants.
(Tr. 32.) (Emphasis added.) The letter also identifies symptoms exhibited by
Lucas, including chronic fatigue, status-post back surgery, chronic migraines, and
chronic headaches. (Tr. 33.) Although Dr. Deline’s letter does not indicate the
precise date when Lucas’s symptoms began or the date upon which he considered
her disabled, it does provide a sufficient basis to conclude that this evidence relates
to the period on or before the date of the ALJ’s decision of November 3, 2017 –
especially given the stated 1998 diagnosis of depression and the chronic nature of
Lucas’s back pain and some of her symptoms. See Williams, 905 F.2d at 216. The
Appeals Council therefore erred when it found that this additional evidence did not
relate to the period at issue.
The Commissioner argues that I may not review Lucas’s claim because she
has failed to show “good cause” for her failure to submit this evidence before the
administrative record closed. In the particular circumstances of this case, however,
the “good cause” requirement does not apply on judicial review. First, as the
Commissioner states, sentence six of 42 U.S.C. § 405(g) provides that the
reviewing court “may at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there is new
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evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding[.]” Section
405(g)’s “good cause” requirement applies only in those cases where new evidence
is presented directly to the reviewing court. Box, 52 F.3d at 171 n.4 (citing
Williams, 905 F.2d at 216). The requirement is not applicable where, as here, the
evidence was first submitted to the Appeals Council. Id. To the extent the
Commissioner also argues that the Regulations themselves require a claimant to
show good cause before the Appeals Council will consider additional evidence
submitted to it,4 whether and to what extent good cause exists under the
Regulations is a matter for the Appeals Council to decide in the first instance, not
this Court.
The Commissioner also argues that Dr. Deline’s letter is cumulative and not
“new” evidence because it merely reiterates other evidence of record that was
before the ALJ, including Dr. Deline’s October 2015 opinion. While this argument
runs counter to the Commissioner’s simultaneous position that the letter does not
pertain to the time period before the ALJ’s decision, it nevertheless cannot be said
that the opinion set out in this letter – made by a treating physician of several years
– is cumulative. No other treating physician with such a longitudinal picture of

“The Appeals Council will only consider additional evidence . . . if you show good cause for
not informing us about or submitting the evidence” to an ALJ. 20 C.F.R. §§ 404.970(b),
416.1470(b).
4

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Lucas’s impairments rendered such a detailed opinion of work-related restrictions.
Moreover, two years had passed since Dr. Deline’s October 2015 opinion, during
which time Lucas experienced exacerbations of her depressive symptoms,
requiring additional and more comprehensive psychiatric treatment as well as
adjustments to her psychotropic medications.
Finally, the Commissioner argues that review of Dr. Deline’s November 30
letter in conjunction with the evidence before the ALJ shows no reasonable
likelihood that the letter would have changed the ALJ’s decision because the ALJ’s
decision continues to be supported by substantial evidence on the record as a
whole. The Appeals Council did not decline to consider the letter on this basis,
however. It instead found only that the letter did not relate to the relevant period.
Nothing in the Appeals Council Notice of Action shows that it reviewed the letter
in substance and determined on that basis that it would not affect the ALJ’s
decision. And, because the Appeals Council did not consider this additional
evidence in the first instance and did not make it a part of the administrative
record, I am precluded from reviewing it here to determine if the ALJ’s decision
continues to be supported by substantial evidence. Cf. Bergmann v. Apfel, 207
F.3d 1065, 1068 (8th Cir. 2000) (in cases where additional evidence was submitted
after hearing and considered by the Appeals Council, reviewing court’s role is to
determine whether ALJ’s decision is supported by record as a whole, which now
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includes new evidence).
Conclusion
In order for the Appeals Council to review an ALJ’s decision on the basis of
additional evidence, the evidence must be “new, material, and relate[] to the period
on or before the date of the hearing decision, and there is a reasonable probability
that the additional evidence would change the outcome of the decision.” 20 C.F.R.
§§ 404.970(a)(5), 416.1470(a)(5) (emphasis added). Here, the Appeals Council
declined to consider Dr. Deline’s November 30 letter only because it found that the
letter did not relate to the period on or before the date of the hearing decision. As
discussed above, this was error. I will therefore remand this matter to the
Commissioner with instruction to resubmit Dr. Deline’s November 30, 2017, letter
to the Appeals Council for appropriate consideration under 20 C.F.R. §§ 404.970
and 416.1470. Whether good cause is shown under the Regulations for the
untimely submission or whether there is a reasonable probability that this
additional evidence would change the outcome of the ALJ’s decision are matters
for the Appeals Council, as is the decision whether to review the ALJ’s decision
upon such considerations. In the circumstances of this case, it is not the role of this
Court to make these determinations in the first instance.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
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REVERSED, and this cause is REMANDED for further proceedings consistent
with this opinion.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 5th day of September, 2019.

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