United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON JUDICAL REVIEW
DENISE K. LaRUE, Magistrate Judge.
Plaintiff Mary Etta Hardister ("Hardister") requests judicial review of the decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (the "Commissioner"), denying Hardister's applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED.
A. Procedural History
Hardister filed an applications for DIB and SSI on February 25, 2010, alleging an onset of disability of February 5, 2010. [Dkt. 9-2 at 21.] Hardister's application was denied initially on April 30, 2010, and upon reconsideration on July 13, 2010. Id. Hardister requested a hearing, which was held on November 3, 2011, before Administrative Law Judge Charles W. Ardery ("ALJ"). The ALJ denied Hardister's application on June 22, 2012. [Dkt. 9-2 at 18.] The Appeals Council denied Hardister's request for review of the ALJ's decision on August 6, 2013, making the ALJ's decision final for purposes of judicial review. [Dkt. 9-2 at 2.] Hardister filed her Complaint with this Court on October 4, 2013. [Dkt. 1.]
B. Factual Background and Medical History
Hardister was born on May 18, 1949, and was 62 years old at the time of the hearing. She has past relevant work as a secretary and data entry clerk. Hardister testified that she left her most recent employment as a data entry clerk with the State of Indiana in February 2010 due to constant pain in her back, shoulders, arms and neck. The ALJ found Hardister suffers from the severe impairments of mild to moderate degenerative disc disease in the cervical spine; minimal degenerative disc disease in the thoracic spine; diffuse mild hypertrophic endplate changes in the lumbar spine; and mild hypertrophic changes in the bilateral shoulders. The ALJ evaluated Hardister's impairments under Listing 1.04 for disorders of the spine, but found the objective evidence failed to demonstrate the conditions resulted in compromise of the spinal cord or nerve root.
The ALJ issued his unfavorable decision on June 22, 2012. On July 11, 2012, Hardister underwent MRIs of the cervical and lumbar spine. She subsequently provided the Appeals Council with those results and a Clinical Summary dated July 9, 2012. In its denial of her appeal, the Appeals Council noted that "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 22, 2012." [Dkt. 9-2 at 3.] The Appeals Council further explained that Hardister should file a new claim if she wanted the Commissioner to consider whether she was disabled after June 22, 2012. Hardister now argues the Appeals Council committed an error of law because it failed to properly consider the new medical evidence.
II. Standard of Review
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:
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 [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, then 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.
Hardister submitted several pieces of new evidence to the Appeals ...