United States District Court, N.D. Mississippi, Aberdeen Division
DAVID A. SANDERS, Magistrate Judge.
This matter is before the court pursuant to 42 U.S.C. § 405(g) to review the decision of the Commissioner of Social Security denying the application of Teresa Weatherspoon for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. The parties in this case have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. After considering the issues raised and after conducting an oral argument on the matter, the court finds as follows:
I. FACTUAL AND PROCEDURAL HISTORY
On April 19, 2010, the plaintiff filed a Title II application for a period of disability and disability insurance benefits. On that same date, the plaintiff protectively filed a Title XVI application for supplemental security income. On June 18, 2012, an administrative law judge found the plaintiff not disabled, and on June 27, 2013, the appeals council affirmed that decision. As a result, on August 26, 2013, the plaintiff filed the present action in the United States District Court, arguing that the Appeals Council and the ALJ committed reversible error.
This court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further held that substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but no substantial evidence' will be found only where there is a conspicuous absence of credible choices' or no contrary medical evidence.'" Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found to support the decision, the decision must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Harrell, 862 F.2d at 475. If the Commissioner's decision is supported by the evidence, then it is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).
In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. The burden rests upon the plaintiff throughout the first four steps of this five-step process to prove disability, and if the plaintiff is successful in sustaining his burden at each of the first four levels then the burden shifts to the Commissioner at step five. First, plaintiff must prove he is not currently engaged in substantial gainful activity. Second, the plaintiff must prove his impairment is "severe" in that it "significantly limits his physical or mental ability to do basic work activities...." At step three the ALJ must conclude the plaintiff is disabled if he proves that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Fourth, the plaintiff bears the burden of proving he is incapable of meeting the physical and mental demands of her past relevant work. If the plaintiff is successful at all four of the preceding steps the burden shifts to the Commissioner to prove, considering plaintiff's residual functional capacity, age, education and past work experience, that he is capable of performing other work. If the Commissioner proves other work exists which the plaintiff can perform, the plaintiff is given the chance to prove that he cannot, in fact, perform that work.
In the present case, there are three issues before the court: (1) Whether the Appeals Council erred when it did not consider evidence submitted subsequent to the ALJ's decision; (2) whether the ALJ erred in his determination of the plaintiff's residual functional capacity; and (3) whether the ALJ erred when he failed to find the plaintiff's condition equaled a Listing.
The court will address each issue in turn.
1. Appeals Council
With her first argument, the plaintiff contends the Appeals Council erred when it did not consider evidence submitted subsequent to the ALJ's decision. Specifically, the plaintiff submitted records and a Medical Source Statement completed by her treating physician, Dr. Robert Long. She also submitted an MRI dated July 6, 2012. While it did not address the MRI, the Appeals Council did address the additional records and wrote:
We also looked at medical evidence from Dr. Robert Long dated June 28, 2012-July 2, 2102 (7 pages), and medical evidence from Baptist Memorial Hospital dated July 6-9, 2012 (4 pages). The Administrative Law Judge decided your case through June 15, 2012. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before June 15, 2012.
As to the record, the plaintiff argues the Appeals Council erred because the records the Council described as having been dated June 28, 2012-July 2, 2012, actually went back to January 26, 2012. Additionally, while the MSS provided by Dr. Long was dated July 26, 2012, the plaintiff contends it clearly refers back to her condition prior to the ALJ's June 18, 2012, decision. Finally, she argues the MRI provides evidence to support her complaints of lower back pain - something the ALJ found lacking.
The government does not disagree with the plaintiff's contentions with respect to the timing of it all. However, the government argues that nothing submitted subsequent to the ALJ's determination is "new and material." The Fifth Circuit has explained that "[e]vidence which is merely cumulative of that already in the administrative record is not new' evidence that would support a remand...." Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989). New evidence also must be material and that requirement means the new evidence cannot merely concern... the deterioration of a condition that was not previously disabling." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Furthermore, "[f]or new evidence to ...