Holder v. Social Security Administration
Filing
31
MEMORANDUM OPINION AND ORDER by Magistrate Judge Laura Fashing granting 25 Motion to Remand to Agency. (cda)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LARRY HOLDER,
Plaintiff,
v.
1:17-cv-01206-LF
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Larry Holder’s Substitute Motion to
Reverse and/or Remand (Doc. 25), which was fully briefed on November 20, 2018. See Docs.
26, 27, 28.1 The parties consented to my entering final judgment in this case. Docs. 9, 10, 11.
Having meticulously reviewed the entire record and being fully advised in the premises, I find
that the Appeals Council erred by failing to consider the additional evidence submitted by Mr.
Holder. I therefore GRANT Mr. Holder’s motion and remand this case to the Commissioner for
further proceedings consistent with this opinion.
I.
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision is supported by substantial evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports
the Commissioner’s findings and the correct legal standards were applied, the Commissioner’s
1
Mr. Holder’s first Motion to Reverse or Remand was not a complete brief. Doc. 20. Mr.
Holder filed an unopposed motion requesting permission to file the correct document, which the
Court granted. Docs. 23, 24.
decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116,
1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court
with a sufficient basis to determine that appropriate legal principles have been followed is
grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal
quotation marks and brackets omitted). The Court must meticulously review the entire record,
but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the ALJ’s findings in order to determine if the substantiality test has
been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of
drawing two inconsistent conclusions from the evidence does not prevent [the] findings from
being supported by substantial evidence.’” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.
Applicable Law and Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or she is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);
20 C.F.R. §§ 404.1505(a), 416.905(a).
2
When considering a disability application, the Commissioner is required to use a fivestep sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation process, the claimant must show:
(1) the claimant is not engaged in “substantial gainful activity”; (2) the claimant has a “severe
medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the
Listings2 of presumptively disabling impairments; or (4) the claimant is unable to perform his or
her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); Grogan, 399
F.3d at 1260–61. If the claimant cannot show that his or her impairment meets or equals a
Listing but proves that he or she is unable to perform his or her “past relevant work,” the burden
of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform
other work in the national economy, considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Id.
III.
Background and Procedural History
Mr. Holder was born in 1964, completed the tenth grade, and worked for approximately
14 years as a carpet installer, for approximately seven months as a fiberglass finisher, and for six
months as a maintenance person. AR 54, 65, 82, 190, 242.3 Mr. Holder filed an application for
Disability Insurance Benefits (“DIB”) on September 10, 2015 and an application for
Supplemental Security Income (“SSI”) on September 17, 2015,4 alleging disability since July 8,
2015 due to osteoarthritis and “otheridis in wrists.” AR 190–98, 241. The Social Security
2
20 C.F.R. pt. 404, subpt. P, app. 1.
3
Document 15-1 is the sealed Administrative Record (“AR”). When citing to the record, the
Court cites to the AR’s internal pagination in the lower right-hand corner of each page, rather
than to the CM/ECF document number and page.
4
Mr. Holder filed a second application for SSI on and January 29, 2016. AR 198–220.
3
Administration (“SSA”) denied his claims initially on October 21, 2015. AR 88–89, 113–120.5
Mr. Holder requested a hearing before an ALJ. AR 121–22. On April 25, 2017, ALJ Kathryn
Burgchardt held a hearing. AR 49–87. ALJ Burgchardt issued her unfavorable decision on June
27, 2017. AR 12–31.
The ALJ found that Mr. Holder met the insured status requirements of the Social Security
Act through June 30, 2018. AR 17. At the hearing, Mr. Holder amended his alleged onset date
to February 1, 2015. AR 15, 17, 52. At step one, the ALJ found that Mr. Holder had not
engaged in substantial, gainful activity since his amended alleged onset date. AR 17. At step
two, the ALJ found that Mr. Holder’s bilateral arthritis of the wrists, degenerative disc disease of
the cervical spine, and left shoulder impairment were severe impairments. AR 17–18. At step
three, the ALJ found that none of Mr. Holder’s impairments, alone or in combination, met or
medically equaled a Listing. AR 18–19. Because the ALJ found that none of the impairments
met a Listing, the ALJ assessed Mr. Holder’s RFC. AR 19–24. The ALJ found Mr. Holder had
the RFC to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant can lift and carry 10 pounds frequently and 20 pounds occasionally. He
can stand or walk with normal breaks for a total of six hours in an eight-hour
workday and sit with normal breaks for a total of six hours in an eight-hour
workday. He can perform pushing and pulling motions with upper and lower
extremities within the weight restrictions given. He can perform activities
requiring bilateral manual dexterity for both gross and fine manipulation with
handling and reaching; however handling and fingering bilaterally would be
limited to only frequent. The claimant should avoid unprotected heights and
moving machinery. He should not climb any ladders, ropes or scaffolds, should
avoid extreme cold, and should avoid overhead reach bilaterally.
AR 19.
5
Mr. Holder did not request reconsideration of the initial denial of his claims. See AR 15. The
initial denial letters in his case advised him to request an ALJ hearing if he disagreed with the
denial of his claims. See AR 114, 118.
4
At step four, the ALJ concluded that Mr. Holder could not perform his past relevant work
as a carpet installer, but could return to his past relevant work as a fiberglass finisher. AR 24.
The ALJ thus found Mr. Holder not disabled at step four. Alternatively, the ALJ found Mr.
Holder not disabled at step five because he could perform jobs that exist in significant numbers
in the national economy—such as bench assembler, photo copy machine operator, and small
products assembler. AR 24–25.
Mr. Holder requested that the Appeals Council review the ALJ’s unfavorable decision.
AR 188–89, 310. Mr. Holder submitted additional evidence to the Appeals Council. See AR 11,
32–48. The Appeals Council did not consider or “exhibit” most of the additional evidence and
found the rest “did not relate to the period at issue.” AR 2. On October 24, 2017, the Appeals
Council denied the request for review. AR 1–5. Mr. Holder timely filed his appeal to this Court
on December 7, 2017. Doc. 1.6
IV.
Mr. Holder’s Claims
Mr. Holder raises three arguments for reversing and remanding this case: (1) the Appeals
Council erred in refusing to consider his June 21, 2017 MRI; (2) the ALJ failed to explain why
key medical evidence was rejected or not considered; (3) the ALJ’s finding that he can perform
his past relevant work and three other jobs is inconsistent with the RFC that states he must avoid
overhead reaching. Doc. 25 at 16–21. I find that the Appeals Council erred by failing to
consider additional evidence submitted by Mr. Holder. Because the Appeals Council failed to
consider the evidence Mr. Holder submitted, the case will be remanded so that the Appeals
Council may reevaluate the ALJ’s decision in light of the completed record.
6
A claimant has 60 days to file an appeal. The 60 days begins running five days after the
decision is mailed. 20 C.F.R. §§ 404.981, 416.1481; see also AR 3.
5
V.
Analysis
A. The Appeals Council erred by failing to consider additional evidence submitted
by Mr. Holder.
The ALJ issued her unfavorable decision on June 27, 2017. See AR 12–31. Thereafter,
Mr. Holder submitted additional evidence and requested that the Appeals Council consider the
following:
1. Records from Gunnison-Griggs Orthopedics dated May 27, 2014 through June
2, 2017 (AR 32–46);
2. Records from Rocky Mountain Spine Clinic dated December 29, 2016
through March 29, 2017 (AR 391–404)7;
3. A lumbar MRI from an unknown source and undated (AR 47–48); and
4. A record from Rocky Mountain Spine Clinic dated June 30, 2017 (AR 11).
The Appeals Council found that the evidence listed in 1, 2, and 3 above “does not show a
reasonable probability that it would change the outcome of the decision,” and therefore it “did
not consider and exhibit this evidence.” AR 2 (emphasis added). As for the evidence listed in
number 4, the Appeals Council stated that “[t]he Administrative Law Judge decided your case
through June 27, 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 June 27, 2017.” Id. The Appeals Council thus did not consider any of the additional
evidence submitted by Mr. Holder. See Padilla v. Colvin, 525 F. App’x 710, 712 (10th Cir.
2013) (unpublished) (“the Appeals Council’s dismissal of the additional evidence’s import on the
grounds that it was not temporally relevant indicates that it ultimately found the evidence did not
7
The ALJ actually considered these records from Rocky Mountain Spine Clinic. See AR 52–53
(ALJ acknowledged receipt of 15 pages of records from Rocky Mountain Spine Clinic the day
before the hearing); AR 31 (list of exhibits attached to the ALJ’s decision showing office
treatment records from Rocky Mountain Spine Clinic dated December 29, 2016 through March
29, 2017 as an exhibit); AR 391–404 (treatment records). Mr. Holder’s alleged errors, however,
do not focus on the Appeals Council’s failure to consider this evidence. See Doc. 25 at 16−18.
6
qualify for consideration at all.”).
Mr. Holder primarily argues that the Appeals Council erred by failing to consider a June
21, 20178 MRI (evidence listed in number 3 above) which showed “very severe degenerative
disc disease” at L5-S1. Doc. 25 at 16–17; AR 47. He argues that the MRI is “conclusive
evidence of a lower back impairment.” Doc. 25 at 16. Mr. Holder argues that this new evidence
is material because the ALJ never considered disorders of the lumbar spine during the sequential
evaluation process. Id. at 18. The Commissioner argues that “the Appeals Council’s discussion
of [the newly submitted evidence] plainly shows that it considered that evidence.” Doc. 26 at 5.
The Commissioner goes on to assert that “the Appeals Council was not required to give more
explanation about how it considered additional evidence submitted to it than it did; and that
additional evidence does not undermine the ALJ’s decision in this case.” Id. at 4. On the former
point, I disagree with the Commissioner. I find that the Appeals Council did not consider the
additional evidence. The Appeals Council stated, “[w]e did not consider . . . this [additional]
evidence,” AR 2, and there is no reason not to take the Council at its word. And although the
Appeals Council also said that it found that “this evidence does not show a reasonable
probability that it would change the outcome of the decision,” id., this standard is one that relates
to whether evidence qualifies for consideration (and therefore review by the Appeals Council)
and does not indicate how the Appeals Council evaluated the evidence in conjunction with the
rest of the record. See Threet v. Barnhart, 353 F.3d 1185, 1191−92 (10th Cir. 2003) (listing
8
The Commissioner points out that the only date on the MRI is the date on the bottom, 6/21/17,
showing when the MRI was printed. Doc. 26 at 6 n.4. In the context of the record as a whole,
however, it is apparent to this Court that the MRI was ordered by Dr. Griggs on June 2, 2017.
See AR 33–34 (showing that Mr. Holder complained of pain/injury to the lumbar spine and
“elected MRI to obtain more information”). The MRI was therefore done some time between
June 2, 2017 (the date it was ordered) and June 21, 2017 (the date the report was printed). The
exact date within that time frame is not important.
7
standards under 2003 regulations for determining whether new evidence qualifies for
consideration); Bisbee v. Berryhill, No. 18-CV-0731 SMV, 2019 WL 1129459, at *3 & n.5
(D.N.M. Mar. 12, 2019) (unpublished) (listing current standards for determining whether new
evidence qualifies for consideration, which includes whether there is a “reasonable probability
that it would change the outcome”).
Having considered the parties’ arguments and the applicable law, I find that the ALJ
erred in failing to consider the new evidence submitted by Mr. Holder.
1. Applicable Law
Whether evidence qualifies for consideration by the Appeals Council is a question of law
subject to de novo review. Threet, 353 F.3d at 1191. The Appeals Council must review a case 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) (both
effective Jan. 17, 2017).9 Evidence is new “if it is not duplicative or cumulative,” and it is
material “if there is a reasonable possibility that it would have changed the outcome.” Threet,
353 F.3d at 1191 (alterations omitted) (internal quotation marks omitted). The new regulations
that require a claimant to show a “reasonable probability that the additional evidence would
change the outcome of the decision” can be read as a heightened materiality standard. See
Bisbee, 2019 WL 1129459, at *3 n.5 (noting that the new regulations “heightens the claimant’s
burden to prove materiality: whereas the previous test required merely a reasonable possibility
of changing the outcome, now it requires a reasonable probability of changing the outcome”).
9
The requirement that the additional evidence create a “reasonable probability” of changing the
outcome of the decision was added to the regulations on January 17, 2017, with compliance
required by May 1, 2017. See 81 Fed. Reg. 90,987 (Dec. 16, 2016), 2016 WL 7242991 (F.R.).
8
Evidence is chronologically pertinent if it relates to the time period on or before the ALJ’s
decision. Threet, 353 F.3d at 1191. If the Appeals Council fails to consider qualifying new
evidence, the case should be remanded so that the Appeals Council may reevaluate the ALJ’s
decision in light of the complete record. Id.
2. Inapplicable Law
The Commissioner erroneously states that “the Appeals Council’s denial of [Mr.
Holder’s] request for review is not judicially reviewable.” Doc. 26 at 4. The Commissioner
cites 20 C.F.R. § 404.972 for this assertion. Id. at 5. However, 20 C.F.R. § 404.972 states that
“[t]he dismissal of a request for Appeals Council review is binding and not subject to further
review.” (Emphasis added). The dismissal of a request for review is not the same as a denial of a
request for review. The Appeals Council will dismiss a request for review when the request for
review was not timely, and may dismiss it at the claimant’s request. See 4 SOC. SEC. LAW &
PRAC. § 53:35; see also Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019) (“If a claimant misses
the deadline and cannot show good cause, . . . the Appeals Council does not deny the request but
rather dismisses it.”).10 This case does not involve a dismissal of review. Instead, it involves a
denial of a request for review. See AR 1 (“[W]e have denied your request for review.”). And,
as previously explained, whether evidence qualifies for consideration by the Appeals Council is a
question of law subject to de novo review. Threet, 353 F.3d at 1191.
Next, the Commissioner argues that this Court must “consider the additional evidence
10
Smith overturned prior cases holding that dismissals based on untimely requests for review
were not judicially reviewable, see, e.g., Brandtner v. Dep’t of Health & Human Servs., 150 F.3d
1306, 1307 (10th Cir. 1998). Smith, 139 S. Ct. at 1774 (“The question here is whether a
dismissal by the Appeals Council on timeliness grounds after a claimant has received an ALJ
hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of
allowing judicial review under § 405(g). In light of the text, the context, and the presumption in
favor of the reviewability of agency action, we conclude that it does.”).
9
alongside the evidence in the case that was available to the ALJ . . . to determine whether the
ALJ’s decision remains supported by substantial evidence.” Doc. 26 at 5 (citing Vallejo v.
Berryhill, 849 F.3d 951, 956 (10th Cir. 2017)). Vallejo does not support this proposition. In
Vallejo, the Tenth Circuit held that when a claimant submits new evidence to the Appeals
Council and the Appeals Council accepts and considers it, that evidence becomes a part of the
record to be considered by the Court in performing a substantial evidence review. 849 F.3d at
955. That is not the case here. In this case, the Appeals Council did not accept or consider the
additional evidence. AR 2. Thus, the only question before the Court is whether the Appeals
Council should have done so. See Padilla, 525 F. App’x at 712 n.1 (“If the Appeals Council did
not consider the additional evidence because it did not qualify for consideration . . . , then the
question on appeal is whether the Appeals Council erred in failing to do so. If the Appeals
Council did accept and consider the new evidence, then the question on appeal is whether the
ALJ’s decision was supported by substantial evidence in light of the new evidence.”). Only after
the Appeals Council reviews the entire record—including the qualifying new evidence—under
the standard provided in 20 C.F.R. § 404.970(a)(5), may the Court “properly review the denial of
benefits . . . under the deferential substantial-evidence standard.” Chambers v. Barnhart, 389
F.3d 1139, 1143 (10th Cir. 2004). However, “[i]f the Appeals Council fails to consider
qualifying new evidence, the case should be remanded for further proceedings.” Id. Because the
Appeals Council did not accept or consider the new evidence and should have, it would be
improper for this Court to perform a substantial evidence review of the ALJ’s decision.
3. Analysis Under Applicable Law
For the reasons explained below, the Court finds that Mr. Holder submitted evidence that
was new, chronologically pertinent, and material in that there is a “reasonable probability” that
10
the additional evidence would change the outcome of the decision. The Appeals Council failed
to consider this qualifying new evidence. The Court therefore remands so that the Appeals
Council may reevaluate the ALJ’s decision in light of the complete evidence.
First, there is no dispute that the June 21, 2017 MRI of Mr. Holder’s lumbar spine is new
evidence. It is not “duplicative or cumulative,” as there was no other MRI of the lumbar spine in
the record before the ALJ. The June 21, 2017 MRI indicates the following:
L5-S1 Very severe degenerative disc disease. Severe fibrovascular reactive
endplate changes. Large diffuse disc bulge. No lateral recess stenosis. Moderate
facet hypertrophy. Bilateral foraminal stenosis with compression of the exiting
L5 nerve roots bilateral. Moderate compression of thecal sac secondary to
epidural lipomatosis.
AR 47. The MRI thus provides substantial new evidence concerning Mr. Holder’s lower back
impairment. As Mr. Holder points out, the ALJ did not consider Mr. Holder’s lower back
impairment at any step of the sequential evaluation process. Doc. 25 at 16–17. The
Commissioner concedes that “there [were] no medical records addressing a lower back
impairment in the record that was before the ALJ.” Doc. 26 at 7. Thus, the MRI is new
evidence.
Second, the June 21, 2017 MRI is chronologically pertinent. The MRI was done before
June 21, 2017. The ALJ rendered her decision on June 27, 2017. See AR 12–31. Thus, the MRI
relates to the time period on or before the ALJ’s decision and is chronologically pertinent.
Threet, 353 F.3d at 1191. The Commissioner appears to concede that the MRI is chronologically
pertinent. See Doc. 26 at 7 (“the new evidence may be sufficient to show that [Mr. Holder] had a
lower back impairment as early as June 2017—about a month before the date of the ALJ’s
decision.”).
Third, the June 21, 2017 MRI is material because there is a reasonable probability that it
11
would have changed the outcome. See Threet, 353 F.3d at 1191; 20 C.F.R. §§ 404.970(a)(5),
416.1470(a)(5). As Mr. Holder explains, there is a reasonable probability that consideration of
the MRI would have affected the sequential evaluation process, and that this would have
changed the outcome of the case. At step two, the MRI would have established that Mr. Holder
had a severe impairment of the lumbar spine, an impairment not considered by the ALJ.
Mr. Holder argues that there is a reasonable probability that consideration of the MRI
would have resulted in a finding that he met a Listing at step three. Mr. Holder, however, fails to
point to any evidence showing he would meet the definition of “inability to ambulate effectively”
included in the criteria of Listing 1.04. In order to meet this Listing, a claimant must show the
following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
...
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively, as defined in
1.00B2b.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.11 As Mr. Holder points out, the June 21, 2017 MRI
11
Pseudoclaudication can be a symptom of lumbar spinal stenosis, a condition that
occurs when the spinal canal narrows in your lower back. This narrowing can be
caused by bulging disks, bone spurs or a thickening of the supportive ligaments in
the back of the spinal canal.
The nerve roots that control movement and sensation in your legs pass through
these narrow areas in your spinal canal. If these areas become too narrow, they
can put pressure on the nerve roots. Pseudoclaudication pain is made worse by
standing or walking, and is usually relieved by sitting or lying down.
https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/expertanswers/pseudoclaudication/faq-20057779 (last visited June 25, 2019).
12
arguably showed pseudoclaudication because it showed “[b]ilateral foraminal stenosis with
compression of the exiting L5 nerve roots bilateral.” AR 47. In addition, other new evidence in
the form of Dr. Griggs’ medical report dated June 6, 2017, noted that Mr. Holder had pain in the
lumbar spine which radiated down both legs, but more often the left, and resulted in weakness
and inability to complete the daily walking he was ordered to do after cervical spine surgery. AR
33.
But to meet the Listing, Mr. Holder also would have had to show an “inability to
ambulate effectively, as defined in 1.00B2b.” This section of the Listings defines inability to
ambulate effectively as
an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual’s ability to independently initiate, sustain, or
complete activities. Ineffective ambulation is defined generally as having
insufficient lower extremity functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, 1.00B2b1. Ambulating effectively is defined as follows:
To ambulate effectively, individuals must be capable of sustaining a reasonable
walking pace over a sufficient distance to be able to carry out activities of daily
living. They must have the ability to travel without companion assistance to and
from a place of employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk without the use of
a walker, two crutches or two canes, the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, 1.00B2b2. Mr. Holder argues that his “testimony that he
cannot walk without a cane or long enough to satisfy his doctor’s instructions establishes that he
cannot ambulate effectively.” Doc. 25 at 17. Under the Listing definitions, however, inability to
ambulate effectively requires the use of two handheld assistive devices, not just one. Mr. Holder
13
testified that he used one cane. AR 74. And Mr. Holder’s inability to follow his doctor’s
walking instructions also does not show that he meets the Listing relating to effective
ambulation. On June 2, 2017, Mr. Holder advised Dr. Griggs that “he was told to walk every
day since his neck surgery and is only able to get through part of his walk before his back starts
hurting him.” AR 33. There is no indication in this treatment note about how far Mr. Holder is
able to walk, or that his walking is limited to the degree necessary to find ineffective ambulation
under the Listings. Therefore, the Court concludes that Mr. Holder has not shown a reasonable
probability that the new evidence would result in his meeting Listing 1.04.
Nonetheless, the Court finds that there is a reasonable probability that consideration of
the new evidence would have changed Mr. Holder’s RFC, and therefore would have changed the
outcome in this case. The ALJ discounted evidence in the record showing that Mr. Holder was
limited in his ability to sit and stand long enough to do light work. There is a reasonable
probability that the ALJ would not have discounted this evidence had the newly submitted
evidence been part of the record. Erica Eaton, a certified physician’s assistant, opined that Mr.
Holder needed a “job that permits shifting positions at will from sitting, standing, or walking.”
AR 366. She also opined that Mr. Holder would need to “take unscheduled breaks or include
periods of walking around” for five to ten minutes every hour. Id. Mr. Holder testified that he
had difficulty with prolonged sitting and standing. AR 73. He testified that he could sit for a
maximum of ten minutes and stand for a maximum of ten minutes: “I got to sit down or walk
around or. It just always coming in and out, and it goes from one spot to the other.” AR 74.
The ALJ, however, found Mr. Holder capable of light work. “[T]he full range of light work
requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour
workday. Sitting may occur intermittently during the remaining time.” SSR 83-10 (S.S.A.
14
1983), 1983 WL 31251 at *5. The ALJ’s RFC and hypothetical to the vocational expert (“VE”)
was an individual who could “stand or walk with normal breaks for a total of six hours in an
eight-hour workday” and who could “sit with normal breaks for a total of six hours in an eighthour workday.” AR 19, 83. When the hypothetical was changed to an individual who needed
“unscheduled breaks every hour, which would include walking around leaving the workstation
for five to ten minutes,” the VE testified that such an individual was precluded from
employment. AR 84–85.
The Commissioner argues that
The ALJ also considered and addressed [Mr. Holder’s] testimony that he had
lower back pain that required him to use a cane to walk and considered [Mr.
Holder’s] subjective symptom testimony about standing and walking limitations
from pain from increased activity, but found that the evidence of record was
inconsistent with that testimony.
Doc. 26 at 7 (citing AR 20–22, 54–55, 71). The ALJ found that Mr. Holder’s “statements
concerning the intensity, persistence and limiting effects of [his reported] symptoms [were] not
entirely consistent with the medical evidence and other evidence in the record.” AR 21. But the
ALJ did not specifically discuss why she rejected Mr. Holder’s reported limitations in sitting and
standing. See AR 20–26.12 In addition, the June 21, 2017 MRI calls into question the ALJ’s
conclusion that Mr. Holder’s reported limitations in sitting and standing were not supported by
the medical evidence. See Threet, 353 F.3d at 1191 (finding MRI done one day prior to ALJ
issuing his opinion but submitted only to the Appeals Council was material because it
12
The Commissioner points to the fact that the ALJ noted that Mr. Holder “testified that he uses
a cane on a daily basis,” but that use of a cane was not noted in his treatment records. Doc. 26 at
7 (citing AR 20). This evidence, however, does not explain why the ALJ discredited Mr.
Holder’s reported limitations with sitting and standing. The Commissioner also analyzes some
of the new evidence not considered by the Appeals Council to argue that the ALJ’s decision is
still supported by substantial evidence. Doc. 26 at 6–7. As discussed in the “Inapplicable Law”
section above, that is not the proper analysis in this case.
15
“reasonably call[ed] into question the disposition of the case,” which the ALJ based on the fact
that claimant had no further medical treatment and the medical evidence in the record showed
claimant had improved). The June 21, 2017 MRI that the Appeals Council did not consider
makes Mr. Holder’s testimony much more consistent with the medical evidence of record. There
is a reasonable probability that consideration of this evidence would have changed Mr. Holder’s
RFC, thereby changing the outcome of the case.
The probability of the additional evidence changing the outcome in this case is further
illustrated by the ALJ’s meticulous RFC analysis of the severe impairments she did consider.
The ALJ specifically discussed the medical evidence and included limitations in Mr. Holder’s
RFC based on his wrist impairments, on his degenerative disc disease of the cervical spine, and
on his shoulder impairments. AR 21–22. The Court finds there is a reasonable probability that
had the ALJ considered the new evidence showing Mr. Holder’s lower back impairment, she
would have included sitting and standing limitations in his RFC, and that there is a reasonable
probability that this would have changed the result in this case. The Appeals Council erred in
failing to consider the new evidence.
VI.
Conclusion
The Appeals Council erred by failing to consider the additional evidence submitted by
Mr. Holder. The Court remands so that the Appeals Council may reevaluate the ALJ’s decision
in light of the completed record.
16
IT IS THEREFORE ORDERED that plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 25) is GRANTED.
IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED, and
this case is REMANDED for further proceedings in accordance with this opinion.
________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent
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