Dobbins v. Colvin

Filing 20

MEMORANDUM OPINION- For the reasons set forth above, pursuant to Sentence 4 of 42 U.S.C. § 405(g), the decision of the Commissioner is reversed and the case is remanded for further proceedings consistent with this memorandum opinion. An appropriate Judgment Order is issued herewith.. Signed by Magistrate Judge David D. Noce on 2/22/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEBRA A. DOBBINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:15 CV 356 DDN

MEMORANDUM OPINION
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Debra A.
Dobbins for disability insurance benefits under Title II of the Social Security Act (the
Act), 42 U.S.C. §§ 401, and for supplemental security income under Title XVI of the Act,
42 U.S.C. § 1381, et seq. The parties have consented to the exercise of plenary authority
by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, pursuant to Sentence 4 of 42 U.S.C. § 405(g), the
final decision of the Commissioner is reversed and the case is remanded to the defendant
Commissioner for further proceedings consistent with this memorandum opinion.

I. BACKGROUND
Plaintiff was born on August 10, 1959. (Tr. 8.) She filed her applications on June
18, 2012. (Tr. 120.) She alleged an onset date of February 21, 2012, at age 52, and that
she was unable to work due to back injury, breathing problems, sleep apnea, diabetes,
shortness of breath, other back problems, thyroid disease, hypertension, high cholesterol,
depression, and asthma. (Tr. 167-68.) Plaintiff’s applications were denied on October

25, 2012, and she requested a hearing before an administrative law judge (ALJ). (Tr.
197, 205.)
The ALJ held a hearing on August 8, 2013, and on September 27, 2013, decided
that plaintiff was not disabled. (Tr. 129, 136.) The Appeals Council denied plaintiff’s
request for review of the ALJ’s decision on January 30, 2015. (Tr. 1.) Thus, the decision
of the ALJ is the final decision of the Commissioner.

II. MEDICAL AND OTHER HISTORY
A.

Medical History Considered by the ALJ
On December 11, 1973, when plaintiff was 14, an intelligence test of her was

conducted by St. Louis Office of Special Education. The test indicated an overall IQ
score of 79.

No other documentation was available regarding plaintiff’s special

education records. (Tr. 529.) However, during a mental status evaluation of her, plaintiff
indicated that she took special education classes during elementary school only. (Tr.
487.)
On August 8, 2009, plaintiff visited Mark Kowalski, D.O., of St. Louis University
Hospital (SLUH) complaining of moderate back pain persisting for over two years.
Plaintiff stated she did not seek treatment earlier “because it wasn’t that bad.” Plaintiff
was diagnosed with acute mid-back pain and was prescribed Ultram for pain with
instructions to follow-up with her primary care physician on August 10, 2009. (Tr. 54042.)
On August 13, 2010, plaintiff was treated at SLUH by Brett Haugen, M.D.,
complaining of back pain, chest pain, tingling and swelling of her extremities, and
shortness of breath that worsened while lying down. After her symptoms improved,
plaintiff was diagnosed with chronic low-back pain and acute mid-back pain and was
prescribed Ibuprofen with instructions to follow up within one week if her pain persisted
or worsened. (Tr. 546, 552.)
On August 31, 2010, plaintiff returned to SLUH due to abnormal hepatic enzyme
and thyroid panel test results obtained during her August 13, 2010 visit. Frederick Y.
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Yap, M.D., noted plaintiff had full of range of motion in her back and exhibited no spinal
tenderness. However, plaintiff appeared chronically ill and frail and was diagnosed with
severe hypothyroidism and rhabdomyolysis1 secondary to hypothyroidism.
reported that she had not taken her medication for several months.

Plaintiff

Plaintiff was

prescribed aspirin, Synthroid (for hypothyroidism), albuterol (for asthma symptoms),
Zofran (for nausea), and Metformin (for diabetes mellitus) and was instructed to followup with her primary care physician within one week. (Tr. 561-63, 569.)
On September 14, 2010, plaintiff visited Grace Hill Neighborhood Health Center
(Grace Hill) for her annual visit. She was referred to Barnes-Jewish Hospital (BJH) for a
mammogram on October 13, 2010. The mammogram results were negative, and annual
screening was recommended. (Tr. 591, 600-03.)
On November 1, 2010, plaintiff went to Grace Hill with intermittent back pain and
hypothyroidism. Plaintiff said her symptoms were aggravated by pushing, rolling over in
bed, standing, and walking but were relieved by exercising and heat. Vani Pachalla,
M.D., noted that plaintiff’s spine was positive for posterior tenderness, paravertebral
muscle spasm, and bilateral lumbosacral tenderness.

Straight leg raising tests were

negative from the supine and sitting positions. Plaintiff was prescribed Ibuprofen and
Flexeril (for muscle spasms). (Tr. 597-99.)
On October 24, 2011, plaintiff was admitted to BJH complaining of shortness of
breath and swelling that started two weeks earlier. Plaintiff stated that she was unable to
sleep due to an inability to lie back.

She displayed generalized weakness and

lightheadedness. Sanford S. Sineff, M.D., noted that plaintiff had gained thirty to forty
pounds and exhibited paraspinal tenderness in the lumbar spine that was more significant
on the right side.

Plaintiff was diagnosed with hyperthyroidism, diabetes mellitus,

gastroesophageal reflux disease, hyperlipidemia, anemia, hypertension, allergies, and

1

Rhabdomyolysis is a condition where muscle tissue breaks down, leading to the release
of muscle fiber contents into the blood. This condition often causes kidney damage. See
http://www.webmd.com/a-to-z-guides/rhabdomyolysis-symptoms-causes-treatments (last
viewed on February 22, 2016.)
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prophylaxis. Plaintiff stated that she was taking her medications intermittently before
running out four weeks earlier. (Tr. 384-89.)
Plaintiff returned to BJH on November 9, 2011, and was treated by Aron
Rosenstock, M.D. Dr. Rosenstock noted that plaintiff had constant back pain plaintiff
described as a “sharp stinging.” Additionally, plaintiff was concerned about her ability to
obtain medications and was instructed on patient assistance programs. (Tr. 401-04.)
She continued treatment at BJH on February 20, 2012.

Plaintiff reported

symptoms of generalized fatigue, mild shortness of breath, and exhibited significant
weight gain. It was noted that plaintiff did not take her medication as prescribed for over
a month and a half. Specifically, Dr. Rosenstock and Michael DeFer, M.D., noted that
“Importance of adherence to medication strongly stressed! She needs to fill her scripts.”
(Tr. 405-06.)
On March 28, 2012, plaintiff again visited BJH and claimed that she had restarted
taking her medications. Plaintiff weighed 266 pounds and complained of sleepiness.
Again, medication compliance was stressed. (Tr. 408-09.)
On May 8, 2012, plaintiff was medication compliant, and by June 5, 2012, Dr.
Rosenstock noted that plaintiff’s symptoms had dramatically reduced and that she was
“doing the very best that I have seen her. She notes that she is taking her medications.”
(Tr. 411-17.)
Plaintiff was admitted to Christian Hospital on August 4, 2012, exhibiting
uncontrolled diabetes mellitus type II and blood in her stool. Nitika Kaswan, M.D., noted
that plaintiff had not been feeling well for two to three weeks and was medication
noncompliant for the past three weeks. Kimberly G. Perry, D.O., noted that plaintiff
denied being in any pain. (Tr. 431, 436.)
On September 4, 2012, plaintiff was treated at MEDEX by Arjun Bhattacharya,
M.D., primarily for back pain that had persisted for several months. Plaintiff weighed
250 pounds, and stated that she could walk one block, stand for thirty minutes, sit for two
hours, and lift up to twenty pounds. Plaintiff had the ability to bend and stoop and did
not use a cane, crutch, or walker. It was noted that plaintiff could do light housework,
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including groceries and cooking, but was unable to do laundry or lift any weights.
Plaintiff reported falling two months earlier, and Dr. Bhattacharya noted that plaintiff had
spasms and walked in such a way as to avoid pain. Dr. Bhattacharya noted plaintiff’s
lumbosacral discomfort. (Tr. 474-76.)
Also on September 4, 2012, plaintiff saw psychologist Kimberly Buffkins, Psy.D.,
who diagnosed plaintiff with depressive disorder not otherwise specified. It was noted
that the plaintiff had a history of special education in elementary school only. Dr.
Buffkins also noted that plaintiff was alert and that her speech was coherent, thought
process logical, and cognition oriented in all spheres. (Tr. 487-89.)
The Disability Determinations Section found that plaintiff could not return to any
of her past relevant work on October 25, 2012. It was further noted that plaintiff was
limited to unskilled work, had a limited education, had previous history in semi-skilled
work, and had no transferable skills. (Tr. 167, 177-78.)
Plaintiff continued her treatment at Grace Hill on November 12, 2012. Anita
Sarathi, M.D., noted that plaintiff went in for a medication refill and showed symptoms
of diabetes mellitus and hypertension. Subsequently, Dr. Sarathi sent plaintiff a letter
indicating that her tests were normal and encouraging her to take her medications. (Tr.
498-502.)
On December 7, 2012, plaintiff visited Grace Hill with back pain and diabetes
mellitus and stated that Tylenol and Ibuprofen were not helping her back pain. Plaintiff
also complained of pain shooting down her legs. Plaintiff mentioned that she fell in
January and had a “heat/burning” in her lower back. (Tr. 503.)
On March 12, 2013, plaintiff appeared at Grace Hill, where Dr. Sarathi noted that
plaintiff had lumbago, diarrhea, and diabetes mellitus. Plaintiff was positive for back
pain and could not lie flat due to paraspinal pain. (Tr. 510-12.)
Subsequently, plaintiff underwent an x-ray of the lumbar spine on March 14,
2013. The report of the x-ray indicated a normal lumbosacral spine:
Examination demonstrates intact vertebral bodies without fracture or bone
destruction.
Vertebral column shows normal alignment without
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subluxation. Disc spaces are well maintained. No pars interartioularis
defects noted. The bowel gas pattern is unremarkable.
(Tr. 516.)

C.

ALJ Hearing
The ALJ conducted a hearing on August 8, 2013. (Tr. 134-66.) Plaintiff appeared

and testified to the following. She was hospitalized in 2003 when doctors found a tear in
the back of her heart. Plaintiff was diagnosed with congestive heart failure, and doctors
prescribed coated aspirin but did not repair the tear. During the same period, plaintiff had
swelling in her feet, which doctors attributed to a thyroid issue for which plaintiff
previously had surgery. Plaintiff was prescribed medication for her thyroid, but did not
take her medications for various periods because she was unable to afford the
prescriptions. (Tr. 139-41.)
After 2003, the swelling in plaintiff’s hands and feet became less frequent but still
cause discomfort every two to three months, with swelling periods lasting for one to two
months. Plaintiff wears support hose and gloves designed to alleviate the swelling in her
legs and hands, respectively. Due to a diagnosis of carpal tunnel syndrome, plaintiff also
wears hand splints at night. The pain in plaintiff’s hands wakes her up at night and is
intensified by contact. (Tr. 143-45.)
In 2004, plaintiff slipped on a patch of ice and hurt her back. Despite never fully
recovering, she returned to work as a housekeeper at Willow Brook Nursing Home until
early 2012, when she suffered another fall. (Tr. 147-48).
Plaintiff does not drive due to her sleep apnea. She is unable to afford a CPAP
machine, and her children must watch her sleep because she can stop breathing at night.
(Tr. 148.)
Plaintiff lost sixty pounds through diet and exercise. Plaintiff walks and rides a
stationary bike at a gym. However, her back pain limits her exertion and requires her to
take breaks. On the date of the hearing, plaintiff weighed 197 pounds. (Tr. 146.)
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Plaintiff testified that she worked through her back pain from the 2004 fall until
early 2012, when she slipped and fell while getting into her car. (Tr. 147.)
Plaintiff testified that she is unable to stand for longer than thirty minutes, and is
forced to bend over the sink to wash dishes due to pressure in her lower back stemming
from her previous slips. Despite the pressure, plaintiff also tries to visit the gym daily.
She is able to walk on the treadmill for thirty minutes and ride the stationary bike for
twenty minutes. However, plaintiff also testified that she must sit or lie down regularly
throughout the day. Plaintiff testified that she rests four or five times a day for at least
thirty minutes each time. (Tr. 150-55.)
After falling in 2012, plaintiff attempted to return to work, but her employer sent
her home. Plaintiff’s doctor would not release her to begin working again due to her back
problem. For this reason, plaintiff was eventually fired. (Tr. 156-57.)
Plaintiff sleeps no more than four hours each night, which requires her to take
naps throughout the day. (Tr. 158-59.)

C.

Decision of the ALJ
On September 27, 2013, the ALJ determined that plaintiff was not disabled. The

ALJ found that plaintiff met the insured status requirements of Title II of the Social
Security Act through December 31, 2016, and that she had not engaged in substantial
gainful activity since February 21, 2012. Additionally, the ALJ found that plaintiff had
severe impairments of lumbago, diabetes mellitus, and obesity. However, the ALJ also
found that plaintiff did not have an impairment of combination of impairments that met
or medically equaled the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. (Tr. 122, 125.)
The ALJ determined that plaintiff was unable to return to her past relevant work as
a hospital or commercial cleaner. (Tr. 127.) However, the ALJ also determined that
plaintiff retained the residual functional capacity (RFC) to perform light work that
involves no exposure to pulmonary irritants and no more than frequent (one-third to twothirds of the time) manipulation, gripping, reaching, or handling with both arms. (Tr.
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125.) Therefore, the ALJ found that plaintiff was not disabled within the meaning of the
Act. (Tr. 129.)

D.

Additional Medical History Submitted to the Appeals Council
On April 1, 2014, plaintiff submitted medical records to the Appeals Council from

Myrtle Hilliard Davis Comprehensive Health Center containing clinic notes dated
October 22, 2013 through February 25, 2014; lab work dated February 10, 2014; and an
MRI report dated December 10, 2013. (Tr. 77.)
On October 22, 2013, Michael Spearman, M.D., noted that plaintiff’s
lumbar/lumbosacral spine exhibited abnormalities and tenderness on palpation.

Dr.

Spearman noted that plaintiff hoped to receive a referral for an MRI. (Tr. 80-81.)
Plaintiff visited Dr. Spearman for a follow-up on December 6, 2013.

Dr.

Spearman noted that plaintiff’s spine continued to exhibit abnormalities. (Tr. 85-86.)
On December 10, 2013, plaintiff underwent a lumbar spine MRI, and Yihua Zhou,
M.D., reported that plaintiff had mild diffuse disc bulge and mild bilateral facet
arthropathy, or joint disease, at L3-L4; diffuse disc bulge and moderate bilateral facet
arthropathy resulting in mild central canal stenosis at L4-L5; and, at L5-S1 mild diffuse
disc bulge and moderate right and mild left facet arthropathy resulting in moderate right
neuroforaminal narrowing. It was Dr. Zhou’s impression that plaintiff had mild to
moderate degenerative disc disease of the lumbar spine from L3 to S1 resulting in mild
central canal stenosis at L4-L5 and moderate right neuroforaminal stenoses at L5-S1.
(Tr. 89.)
On January 13, 2014, Alicia Gonzalez, M.D., performed an initial psychiatric
exam for plaintiff’s depressed mood. Dr. Gonzalez found that plaintiff suffered from
moderate recurrent major depression and increased plaintiff’s psychoactive medication
management prescription. (Tr. 95.)
Plaintiff’s chronic back pain and spinal stenosis were consistently noted by Dr.
Spearman during follow-up visits on January 24, February 10, and February 25, 2014.

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On February 25, 2014, Dr. Spearman prescribed Gabapentin for the pain associated with
plaintiff’s spinal stenosis-lumbar. (Tr. 99, 102, 112.)

III. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and
are supported by substantial evidence in the record as a whole. Pates-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner’s decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove that she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D),
(d)(1)(A), 1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five step regulatory framework
is used to determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see
also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process);
Pates-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3)
her disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
she does not suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five. Step Four requires the Commissioner to
consider whether the claimant retains the RFC to perform past relevant work. Id. §
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404.1520(a)(4)(iv). The claimant bears the burden of demonstrating that she is no longer
able to return to her past relevant work.

Pates-Fire, 564 F.3d at 942.

If the

Commissioner determines the claimant cannot return to her past relevant work, the
burden shifts to the Commissioner at Step Five to show that the claimant retains the RFC
to perform other work that exists in significant numbers in the national economy. Id.; 20
C.F.R. § 404.1520(a)(4)(v).

IV. DISCUSSION
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence
because (1) the decision did not properly set out all of plaintiff’s severe impairments and
did not pose all relevant limitations during the hypothetical questioning of the vocational
expert (VE); and (2) the Appeals Council improperly failed to consider new and material
evidence obtained after the ALJ decision.

A.

Plaintiff’s alleged borderline intellectual functioning
First, plaintiff argues that the ALJ’s decision was not supported by substantial

evidence because the ALJ (1) failed to determine that that plaintiff’s borderline
intelligence was a severe impairment and (2) failed to include plaintiff’s alleged
borderline intelligence in the hypothetical questions posed to the VE.
Specifically, plaintiff points to the intelligence test conducted on December 11,
1973, which indicated an overall IQ of 79. (Tr. 529.) Generally, an IQ score between 71
and 84 constitutes borderline intellectual functioning which must be considered by the
VE. Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999). However, an ALJ may disregard
a plaintiff’s lone IQ score when it is inconsistent with the plaintiff’s demonstrated
activities and abilities on the record as a whole. Clay v. Barnhart, 417 F.3d 922, 929 (8th
Cir. 2005). While a plaintiff’s IQ is presumed to remain stable over time, evidence of a
plaintiff’s improved intellectual functioning may refute an otherwise valid IQ score.
Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001).

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In this case, plaintiff relies solely on a dated IQ score that is inconsistent with the
record as a whole. There was substantial evidence to support the ALJ’s conclusion that
plaintiff did not suffer from a severe mental impairment. Plaintiff participated in special
education classes in elementary school only and continued her education through the
eleventh grade. She is able to read and write. Plaintiff’s mental status exam indicated
that her speech was coherent, her thought process logical, and her cognition oriented in
all spheres. Plaintiff’s concentration, persistence, and pace were fair-to-poor during the
mental status exam. (Tr. 148, 487-89.)
Also, plaintiff previously managed a cleaning and maintenance crew and indicated
that she was a lead worker who supervised nine or ten people. (Tr. 297.) In his decision,
the ALJ noted that plaintiff reported that she could dress and bathe herself, prepare meals,
perform housework, wash laundry, shop, pay bills, handle financial accounts, and read.
(Tr. 124.) It is notable that plaintiff did not allege this mental impairment in her initial
application or during the ALJ hearing. See Davis v. Apfel, 239 F.3d 962, 966 (8th Cir.
2001) (failure to allege disabling mental disorder in the initial application supported the
ALJ’s conclusion that plaintiff’s borderline intelligence did not constitute a severe
impairment). Further, plaintiff’s initial application indicated that she had not sought or
received treatment for any mental condition, including emotional and learning problems.
(Tr. 298.)
While additional evidence obtained after the ALJ hearing indicates that plaintiff
suffers from moderate recurrent major depression, which is an emotional problem, this
evidence does not support plaintiff’s claim that she has borderline intellectual
functioning. (Tr. 95.)
Here, there was substantial evidence in the record to support the ALJ’s
determination that plaintiff did not suffer from a severe mental impairment related to
alleged borderline intellectual functioning. Thus, the ALJ’s questioning of the VE was
not required to include plaintiff’s alleged borderline intellectual functioning.

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B.

Plaintiff’s new evidence submitted to the Appeals Council
Next, plaintiff argues that the Commissioner’s final decision is not supported by

substantial evidence, because the Appeals Council improperly failed to consider new and
material medical evidence obtained after the ALJ decision. Specifically, plaintiff points
to records ranging from October 22, 2013, to August 12, 2014. Most notable is an MRI
of her lumbar spine obtained on December 10, 2013, which indicated that plaintiff
suffered from diffuse disc bulge, mild bilateral facet arthropathy at L4-L5, and mild
diffuse disc bulge with moderate right and left facet arthropathy. Michael Spearman,
M.D., concluded that plaintiff had chronic back pain, degenerative disc disease, and
spinal stenosis. In its denial of review, the Appeals Council acknowledged the evidence
but did not consider it because it post-dated the ALJ decision. (Tr. 89, 93).
The Appeals Council is obligated to consider additional evidence that is new,
material, and related to the period on or before the date of the ALJ’s decision as if it was
presented to the ALJ. 20 C.F.R. § 404.970(b); Whitney v. Astrue, 668 F.3d 1004, 1006
(8th Cir. 2012). In Whitney, the plaintiff submitted evidence to the Appeals Council of a
psychiatric evaluation obtained five months after the ALJ’s decision. Whitney, 668 F.3d
at 1005. Like this case, the Appeals Council acknowledged receiving the evidence, but
failed to determine whether the evidence was new, material, and related to the period on
or before the date of the ALJ’s decision. Id. at 1006. The Whitney court recognized that
the Appeals Council improperly failed to determine whether the additional evidence was
new, material, and related to the period on or before the date of the ALJ decision. Id.
The court determined that, if the additional evidence was timely submitted, the matter
should be remanded to the Appeals Council. Therefore, if the evidence meets the 20
C.F.R. § 404.970(b) criteria, “the Appeals Council MUST consider the additional
evidence.” Id. (emphasis in original).
In this case, the Appeals Council acknowledged receipt of the additional evidence,
but did not consider it because it post-dated the ALJ decision. (Tr. 2.) However, the
Appeals Council may be obligated to consider additional evidence that post-dates the
ALJ decision, “if it relates to the claimant’s condition on or before the ALJ’s decision.”
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Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2012). Therefore, the additional
evidence is tested for novelty and relatedness, not timing. The Appeals Council’s failure
to consider the additional evidence may be a basis for remand. See Whitney, 668 F.3d at
1006.
In the present case, the Commissioner contends that the evidence is not new,
because it is merely cumulative of other evidence considered by the ALJ. However, new
evidence can be characterized by documentation of an impairment to which the plaintiff
testified but which was not otherwise substantiated in the record. Geigle v. Sullivan, 961
F.2d 1395, 1396-97(8th Cir. 1992). Cumulative evidence, on the other hand, is redundant
because it reiterates the same information previously considered by the ALJ. See Perks
v. Astrue, 687 F.3d 1086, 1093 (8th Cir. 2012). In Perks, the plaintiff submitted an MRI
report to the Appeals Council that existed before the ALJ’s decision. Id. (emphasis
added). Although that MRI report was new in that it was never submitted to the ALJ, the
opinions of the doctors who reviewed that MRI report were presented to the ALJ. Id.
Therefore, that court found that the MRI report was not new because it was cumulative of
the doctors’ opinions who reviewed the MRI report.

Id.

Unlike that MRI report,

plaintiff’s additional evidence is new because it was obtained after the ALJ decision.
Additionally, it is not cumulative because it offers new evidence about the plaintiff’s
alleged condition.
Next, the additional evidence must be material to warrant a remand.

The

Commissioner argues that the evidence is neither relevant nor probative of plaintiff’s
condition because it was obtained after the relevant time period. However, new evidence
may be material despite post-dating the ALJ decision. Cunningham, 222 F.3d at 502.
Instead, evidence is material if it is relevant and probative to the claimant’s condition
during the time period for which benefits were denied. Woolf v. Shalala, 3 F.3d 1210,
1215 (8th Cir. 1993). In Woolf, the plaintiff submitted additional evidence after the ALJ
decision relating to a nerve impairment in the plaintiff’s wrist. Id. That plaintiff failed to
allege the nerve impairment in her initial application and did not argue it during the ALJ
hearing. Id. Therefore, the new evidence was immaterial because it related to an
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impairment the ALJ never considered.

In cases where new evidence relates to a

condition not alleged in the initial complaint, the plaintiff must reapply. Id. In this case,
the additional evidence offers insight into the severity of plaintiff’s previously alleged
back impairments because it provides objective evidence corroborating plaintiff’s
subjective complaints of pain.

Therefore, the additional evidence is material and

probative of plaintiff’s alleged back impairments.
Also, to be material, there must be a reasonable likelihood that it would have
changed the ALJ’s determination. Woolf, 3 F.3d at 1215. It is not this Court’s duty to
reweigh the evidence. Bates v. Chater, 54 F.3d 529, 531-32 (8th Cir. 1995). However, it
must be determined whether there is a reasonable likelihood that the ALJ’s decision
would be different in light of the additional evidence. Woolf, 3 F.3d at 1215. In this
case, there is a reasonable likelihood that the additional evidence would change the ALJ’s
decision.
During the hearing, the ALJ stated that “Social Security can’t take an MRI.”
Plaintiff could not afford an MRI and relied upon an x-ray that failed to show
abnormalities in her back. The ALJ further noted that, “this is a tough case, you know.
The problem is we don’t have any abnormality in your back. That’s the problem.” (Tr.
163-164.) (emphasis added). The ALJ’s decision stated that, “most damaging to her
credibility is the normal x-ray of her lumbosacral spine.” (Tr. 127.) The additional
evidence supports plaintiff’s alleged back condition. Specifically, the MRI report and
subsequent medical records indicate that plaintiff suffers from mild to moderate
degenerative disease of the lumbar spine from L3 to S1, resulting in mild central canal
stenosis at L4-L5 and moderate right neuroforaminal stenosis at L5-S1.

(Tr. 89.)

Additionally, ten days after the MRI was reported, Dr. Spearman indicated that plaintiff’s
active problems included “Spinal Stenosis-Lumbar,” which rebuts the ALJ’s decision that
the record did not contain evidence of spinal stenosis-lumbar. (Tr. 90, 125.) In light of
the additional evidence, there is a reasonably strong likelihood that the additional
evidence would have changed the ALJ’s decision.

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In this case, the Appeals Council failed to consider the additional evidence
consistent with regulation 20 C.F.R. § 404.970(b). The Appeals Council’s conclusory
rejection of the additional evidence was improper because the evidence was new,
material, and related to the relevant time period. 42 U.S.C. § 405(g) permits this court to
reverse and remand this case to the Commissioner in order to determine whether the
ALJ’s initial decision is still supported by substantial evidence on the record as a whole,
including the additional evidence.
V. CONCLUSION
For the reasons set forth above, pursuant to Sentence 4 of 42 U.S.C. § 405(g), the
decision of the Commissioner is reversed and the case is remanded for further
proceedings consistent with this memorandum opinion.
An appropriate Judgment Order is issued herewith.

/s/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE
Signed on February 22, 2016.

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