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J.B.D. v. Saul

United States District Court, S.D. Indiana, Indianapolis Division

August 5, 2019

J.B. D., JR., Plaintiff,
v.
ANDREW M. SAUL Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S SOCIAL SECURITY APPEAL

          TIM A. BAKER UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff's appeal, which he filed without the assistance of an attorney, largely consists of lists of his ailments and portions of medical records. While his initial brief does not expressly state why he believes the Administrative Law Judge's decision should be remanded, his reply brief clarifies that he does not understand how the Social Security Administration could say he can work when his impairments are supported by medical records. Plaintiff does not make a more specific argument for how the ALJ erred or what precisely requires remand. Plaintiff does, however, specify that his biggest concerns are his neck pain and the varicose veins in his legs. Like several other ailments Plaintiff points to, Plaintiff's neck pain is not properly before the Court as the supporting evidence postdates both the hearing and the ALJ's decision. Regarding Plaintiff's varicose veins and other impairments that are properly before the Court, Plaintiff essentially is asking the Court to reweigh the evidence, which is something the Court cannot do. Further, Defendant persuasively argues that the ALJ's decision is in fact supported by substantial evidence. Therefore, Plaintiff's request for remand [Filing No. 8] should be denied.

         II. Background

         Plaintiff filed an application for a period of disability, disability insurance benefits, and supplemental security income, alleging disability beginning in March of 2015. Plaintiff alleged he was disabled due to: 1) diabetes, 2) back problems, 3) carpal tunnel in both hands, 4) problems with both arms, 5) headaches, and 6) bleeding stomach issues. [Filing No. 6-8, at ECF p. 8; Filing No. 6-2, at ECF p. 17.] The SSA denied the claims initially and upon reconsideration. Plaintiff then had a hearing before an ALJ, who issued a decision on December 5, 2017, denying Plaintiff benefits. The Appeals Council declined to reconsider the ALJ's decision.

         In reaching his decision, the ALJ followed the SSA's five-step sequential process to determine if Plaintiff was disabled at the time of the decision. Step one concerns whether Plaintiff had been engaging in substantial gainful activity during the period for which he was seeking disability. The ALJ found that Plaintiff had not, so the ALJ's analysis continued to step two. Step two concerns whether any of Plaintiff's impairments qualify as “severe” under Social Security regulations. The ALJ determined that Plaintiff had eight severe impairments- headaches, bleeding stomach issues, degenerative disc disease, diabetes with neuropathy, bilateral carpal tunnel, cataracts, tinnitus, and obesity-and two non-severe impairments- hypertension and high cholesterol. The ALJ continued to step three, in which the ALJ found that neither Plaintiff's individual impairments nor the combination of his impairments met or medically equaled the severity of any of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically, the ALJ considered listings 1.02, 1.04, 2.04, 5.00, 11.02, and 11.14, as well as Social Security Ruling 02-1p.

         Before moving on to step four, the ALJ determined Plaintiff's residual functional capacity, i.e., his remaining ability to function despite his limitations. The ALJ found that with his RFC, Plaintiff could perform “light work, ” but with the following additional limitations:

[Plaintiff could] occasionally lift and carry twenty pounds, frequently lift and carry ten pounds; push or pull unlimited except for the weights indicated; stand or walk for up to six [hours] in an eight-hour workday, sit for up to six hours in an eight-hour workday; occasionally climb ramps or stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, crouch, or crawl; no exposure to concentrated wetness; no exposure to unprotected heights or hazardous machinery; moderate noise exposure; occasional foot controls - bilaterally; frequent reaching, handling, fingering and feeling - bilaterally; and occasional overhead reaching - bilaterally.

[Filing No. 6-2, at ECF p. 16.]

         Based on this RFC finding, as well as testimony from a vocational expert, the ALJ concluded at step four that Plaintiff was capable of meeting the physical and mental demands of his prior job as a security guard. Because Plaintiff was capable of returning to his prior job, the ALJ concluded Plaintiff was not disabled. With his finding at step four that Plaintiff was not disabled, the ALJ properly did not offer a step-five analysis.

         III. Discussion

         The ailments and evidence Plaintiff lists fall into at least one of three categories: 1) evidence or allegations of new or additional impairments that were not before the ALJ, 2) new evidence relating to old impairment allegations that were before the ALJ, or 3) restatements of evidence or allegations of impairments that the ALJ considered.

         The Court's review of the evidence is limited to the administrative record, so it cannot consider new evidence of disability. Rasmussen v. Astrue, 254 Fed. App'x 542, 547 (7th Cir. 2007); Papendick v. Sullivan, 969 F.2d 298, 302 (7th Cir. 1992) (“It is clear from [42 U.S.C. § 405(g)] that a district court may not consider evidence outside the certified record.”) (over ruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)). While the Court can remand the ALJ's decision so the ALJ can consider evidence that was not in the record, the Court cannot remand the ALJ's decision so the ALJ can consider new evidence that postdates the hearing. Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008). Likewise, the Court cannot consider evidence of the claimant's current condition. Id. Instead, if a claimant develops a new impairment after the SSA issues its decision, instead of filing an appeal, the claimant may file a new application for benefits with the SSA. Id.

         Plaintiff alleges two new impairments that were not part of the ALJ's consideration: neck pain and strokes. Plaintiff's allegation of neck pain is supported by a medical record that shows spondylolisthesis of Plaintiff's cervical spine. [Filing No. 8, at ECF pp. 2, 12.] However, the record is dated February 14, 2019, which is well after the ALJ's decision, so the Court cannot consider such evidence and argument. Plaintiff also alleges that he has had four strokes-two requiring trips to the hospital and two “mini-strokes.” This allegation is likewise beyond what is in the administrative record and Plaintiff does not provide any ...


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