Opinion
Case No. A1-02-87
April 23, 2003
MEMORANDUM ORDER GRANTING SUMMARY JUDGMENT
The plaintiff, Josephine A. Scheeler, seeks judicial review of the Social Security Commissioner's denial of her applications for disability insurance benefits. For the reasons set forth below, the Court grants the Commissioner's Motion for Summary Judgment and denies Scheeler's Motion for Summary Judgment.
I. PROCEDURAL HISTORY
The plaintiff, Josephine A. Scheeler (Scheeler) filed an application for disability insurance benefits on February 26, 1998. (Transcript of Administrative Record [Tr.] 75-77). Her application was denied by the Commissioner. (Tr. 66-68). Scheeler made a timely request for reconsideration and her reconsideration claim was also denied. (Tr. 69-72). Scheeler then requested a hearing before an Administrative Law Judge, and a hearing was held on September 17, 1999. (Tr. 73, 27). The ALJ issued a decision denying benefits on November 10, 1999. (Tr. 11-22). Scheeler requested a review by the Appeals Council on January 3, 2000, and the Appeals Council declined to review the matter in a letter dated June 6, 2002. (Tr. 4). Scheeler then sought judicial review in a complaint filed on August 5, 2002.
II. BACKGROUND
Josephine Scheeler was born on October 21, 1947. She was 51 years old at the time of her administrative hearing. (Tr. 15). Scheeler has an eleventh grade education and has not received a GED. (Tr. 12). She lives with her husband. (Tr. 13). Her past relevant work includes work as a waitress, cook, dishwasher, drug store clerk/stocker, barmaid, telemarketer, and nursing home bed maker. (Tr. 12). Scheeler testified she had been a telemarketer on two previous occasions. She has described her telemarketing jobs as "the easiest job from a physical standpoint." (Tr. 12). She also testified she was unable to perform her past work as a telemarketer because of the stress and her other jobs would require too much walking or time on her feet. (Tr. 12, 60). Scheeler ended her employment as a waitress in May of 1997 due to her heart problems. (Tr. 12). She subsequently had coronary artery bypass surgery on August 25, 1997.
Scheeler suffers from coronary artery disease, peripheral arterial disease with claudication, and diabetes. (Tr. 14). Scheeler has been prescribed various medications including Univasc, Lipitor, Insulin 70/30, and Glucophage. (Tr. 34, 37). She also takes an aspirin a day, Folic Acid, B-6, B-12, Vitamin C, and Vitamin E. (Tr. 35).
Symptoms of claudication — a pain, ache, cramp, or tired feeling that occurs on walking — are most common in the calf but may occur in the foot, thigh, hip, or buttocks. Claudication is worsened by walking rapidly or uphill but is usually relieved in 1 to 5 minutes by rest (sitting is not necessary); the patient can walk as far again before pain recurs. The Merck Manual, 1785 (17th ed. 1999).
An ACE inhibitor that lowers blood pressure. PRD, 3095-96 (57th ed. 2003).
A cholesterol medication. PDR, 2547 (57th ed. 2003).
Used for the management of type 2 diabetes. PDR, 1079 (57th ed. 2003).
At the administrative hearing, Scheeler was the only witness to testify. She stated that she can walk only one or one-and-a-half blocks before she must rest. (Tr. 62, 37). She also stated she cannot climb a complete flight of stairs at home without stopping to rest. (Tr. 37). Once she has rested, she stated she was able to resume walking again. (Tr. 38). Scheeler also testified that she had pain in her legs every day, but that she had no pain when resting. (Tr. 38). She described her pain level as eight on a scale of one to ten, with ten being the most severe. (Tr. 39). Scheeler also testified she is not taking medication for her legs and is not receiving any other treatment. (Tr. 41). Scheeler said her doctor suggested surgery may be performed if she begins to experience pain when resting. (Tr. 41).
Scheeler described her gastrointestinal problems which have been diagnosed as either acid reflux or a hernia. (Tr. 40). She was prescribed Prevacid, which she takes when she gets the attacks. (Tr. 41). She has attacks every four to five weeks that last for about a week. (Tr. 41, 43). As a result of both her diabetes and gastrointestinal problems, Scheeler is on a restrictive diet. (Tr. 42, 43-44). She admitted her compliance with her diet is "fair." (Tr. 45). She has gained 30 pounds in the last year which she attributes to her inability to exercise. (Tr. 45). She also admitted that her doctor recommended she exercise "no matter how much pain [she's] in." (Tr. 45).
Inhibits gastric acid secretion. See PDR, 3200 (57th ed. 2003).
Scheeler described her typical day as waking up about 8:30 a.m., taking insulin, eating breakfast, and reading the paper. (Tr. 47). She then makes the beds, does general housekeeping, vacuuming, or picking up. (Tr. 47). Scheeler stated that when vacuuming her living room she must take a break every five minutes before she can finish. (Tr. 48). She makes two meals a day. (Tr. 48, 51). She mops once a week. (Tr. 49). Each afternoon she and a friend go across the street for a soda. (Tr. 49). Scheeler said that when she returns to her house each afternoon, she must hold on to the garage as she walks up her driveway because it slopes upward. (Tr. 50). In the evening, she usually goes for a drive or reads. (Tr. 51). She rarely watches television. (Tr. 55). She goes to church every Wednesday night for about a hour and a half. (Tr. 51). She also stated she has visitors in her home about once a week. (Tr. 55). Scheeler testified that she typically goes to bed around 9:00 p.m. but wakes every hour or hour and a half to use the bathroom. (Tr. 53). She stated she is no longer able to go dancing and has foregone vacations with her sisters because she would have been unable to walk around and go site seeing. (Tr. 54).
Scheeler's primary care physician, Dr. Brian G. Willoughby, has not placed any restrictions or limitations on her activities. On June 4, 1997, and January 7, 1998, Dr. Willoughby opined that Scheeler's diabetes was not under good control. (Tr. 282, 286). He also stated Scheeler admitted she was not complying with her dietary restrictions. (Tr. 282).
Scheeler's medical history contained numerous medical records from St. Alexius Medical Center where she underwent heart bypass surgery in 1997. (Tr. 119-240). While hospitalized for heart surgery, Scheeler complained of "symptoms compatible with gastroesophageal reflux disease/esophagitis." (Tr. 121). Upon her release after surgery and during follow-up visits, there was no discussion of any physical limitations.
Dr. Ronald D. Tello examined Scheeler on October 13, 1998, at the request of the Commissioner. (Tr. 309, 317). Dr. Tello's primary diagnosis was claudication. (Tr. 309, 317). He noted there was "significant arterial occlusive disease involving the right lower extremity likely distally." (Tr. 309, 317). He stated that Scheeler "exercised for two minutes; and at that time, the patient was unable to continue any further exercise." (Tr. 309-10, 317). The two minutes of exercising consisted of "running in place." (Tr. 311). Dr. Tello noted that her blood pressure was under control and that her diabetes was not under good control. (Tr. 310, 317). He also noted that Scheeler denied "nausea, vomiting, diarrhea, constipation, melena, hematochezia, or hematemesis." (Tr. 316). Dr. Tello concluded:
With her degree of claudication, the patient would at this point be unable to do her normal waitressing work to the degree of walking she would have to do. Sedentary work may be a possibility. (Tr. 310, 317).
On December 22, 1998, a Residual Functional Capacity Assessment was completed by a physician acting on behalf of the Commissioner. (Tr. 321). The Residual Functional Capacity Assessment was based on a review of Scheeler's medical records. (Tr. 16). Scheeler was found to be able to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for two hours in an eight-hour workday with normal breaks, sit six hours of an eight-hour workday, and push/pull unlimited, other than as shown for lift and/or carry. (Tr. 321). She was found to have no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 322-324). The physician concluded Scheeler "should be capable to sedentary work activity."
III. ALJ'S DECISION
The ALJ analyzed the plaintiff's claim in accordance with the five-step evaluation process set forth in 20 C.F.R. § 404.1520. (Tr. 15-16). The ALJ quickly dispensed with the first step by finding Scheeler had not engaged in substantial gainful employment since May 17, 1997. (Tr. 14). The ALJ also found that Scheeler had medically determinable impairments. (Tr. 14). He stated:
The Commissioner uses a five-step sequential evaluation to determine disability: (1) whether the claimant is presently engaged in a substantial gainful activity, (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities, (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations, (4) whether the claimant has the residual functional capacity to perform his or her past relevant work, and (5) if the claimant cannot perform the past work, the burden then shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.
There is coronary artery disease from which the claimant is status post myocardial infarction with subsequent CABG [heart bypass surgery]. There is peripheral arterial disease with claudication. The claimant has insulin-dependent diabetes mellitus with diagnostic entry of neuropathy. There is gastroesophageal reflux disease (GERD) by history, and the record reflects the presence of hypertension and hyperlipidemia (Exhibits 1-3F, 5-7F).
(Tr. 14). The ALJ accepted Scheeler's coronary artery disease, peripheral arterial disease with claudication, and diabetes as severe impairments satisfying step two. (Tr. 14). The ALJ did not find that Scheeler's gastroesophageal reflux disease, hypertension, or hyperlipidemia resulted in a more than minimal limitation upon her ability to perform basic work activities. (Tr. 15-16). In other words, the ALJ did not find these conditions to be severe impairments. (Tr. 15). The ALJ also found that Scheeler's impairments did not meet or equal a presumptively disabling impairment listed in the regulations. (Tr. 14).
The ALJ proceeded to consider whether Scheeler had the residual functional capacity to perform her past relevant work. (Tr. 16). The ALJ acknowledged that Scheeler was unable to continue her past relevant work as a waitress, cook, dishwasher, drug store clerk/stocker, bar maid, and nursing home bed maker, but he did find that Scheeler was able to perform her past relevant work as a telemarketer. (Tr. 17).
The ALJ noted that Scheeler's primary care physician (Dr. Willoughby) had not commented on whether she had any limitations or whether she retained any capacity for work. (Tr. 16). The ALJ also noted that the cardiology and surgical reports from her physicians at St. Alexius and her physicians at the Heart and Lung Clinic did not comment on any specific work limitations or capacity for work. (Tr. 16).
The ALJ reviewed the records of Dr. Tello who commented that Scheeler was unable to perform her normal waitressing work because of the need to walk, but she may be able to do sedentary work. (Tr. 16). Finally, the ALJ reviewed the results of a Residual Functional Capacity Assessment completed in December of 1998.
In reaching his conclusion the ALJ wrote:
After considering all of the above, the undersigned is initially persuaded that the claimant retains the residual functional capacity for performing sedentary work. By Department of Labor standards, sedentary work involves lifting of no more than 10 pounds on occasion and, most often, sedentary work involves sitting. The undersigned does not find the claimant's capacity for performing sedentary work to be contraindicated in any objective clinical report of record, and this level of work is not inconsistent with the advisement of Dr. Tello, a consulting examiner (Exhibits 6-7F). The undersigned certainly recognizes that the claimant suffered an acute myocardial infarction in May 1997 and that she ultimately underwent CABG [heart bypass surgery] in August 1997. While her capacity for sustaining even sedentary work was likely compromised during this period, there is no objective evidence of post-surgical complication and no suggestion that she would have been unable to perform at least sedentary work within 12 months of the alleged onset date. Moreover, the undersigned will accept that the sedentary work must not involve prolonged walking or standing, stair climbing, inclines or similar demands which would be contraindicated by the lower extremity claudication.
(Tr. 17).
Before the ALJ found that Scheeler retained the capacity for performing sedentary work, he reviewed her subjective complaints of leg pain, and episodes of GI attacks. (Tr. 17). He noted that Scheeler's work record was good and no motivational concerns existed. (Tr. 18). The ALJ concluded that her daily activities are not "significantly disrupted" by her pain or GI episodes. (Tr. 18). The ALJ stated that there was no alleged loss of concentration or attention to tasks stemming from either the leg pain or the GI episodes. (Tr. 18). He opined that while Scheeler testified she had daily leg pain, her medical records show "[t]here is no particular clinical intervention which is on-going and apparently the pain has not progressed to the point that more aggressive treatment is being considered." (Tr. 19). The ALJ further opined that in regard to Scheeler's gastrointestinal episodes, "there is little or no mention of this in the objective clinical reports, nor were GI symptoms highlighted to a consulting physician in October 1998 (Exhibits 5-6F)." Finally, the ALJ noted that both Scheeler's leg pain and GI episodes were not always present and occurred upon provocation. (Tr. 19). He summarized the effects of Scheeler's leg pain and GI episodes by stating:
It is indeed accepted that the claimant's leg pain is provoked by prolonged standing or extensive walking, or features such as negotiating steps or inclines. However, these are factors which can be controlled or avoided. The undersigned also accepts that gastrointestinal flares may be provoked by certain foods or medications. However, these again are factors which can be controlled and the record supports that medication changes or dosages have been indicated for GI reasons. However, the record as a whole does not support that leg pain and GI symptoms are ever present and without provocation, and over which there is no control.
(Tr. 19).
The ALJ ultimately concluded that Scheeler retained the capacity to perform "at least sedentary work, provided the work does not involve more than minimal periods of standing or walking, or negotiation of steps and inclines." (Tr. 20). Based on her own description of her prior job as a telemarketer, the ALJ found that Scheeler retained the capacity to perform her past relevant work as a telemarketer, but not as a telemarketer supervisor. (Tr. 20). He also ruled out her performance of any of her other previous jobs involving long periods of standing and walking. (Tr. 20).
IV. POST HEARING EVIDENCE AND APPEALS COUNCIL DECISION
Following the ALJ's decision on November 10, 1999, Scheeler requested that the Appeals Council review the ALJ's decision. (Tr. 4). Over a year later on April 10, 2001, Scheeler submitted additional medical records, which she alleged showed a significant deterioration of her medical condition. (Tr. 331). The medical records detail the medical attention Scheeler received on March 28-29, 2001 at the West River Regional Medical Center. (Tr. 332-40). Dr. Laura L. Walker treated Scheeler. (Tr. 332). In the "Transfer Summary," Dr. Walker diagnosed Scheeler with unstable angina, congestive heart failure, uncontrolled type 2 diabetes, hyperlipidemia, history of coronary artery bypass grafting in 1997, hiatal hernia with reflux, history of noncompliance, and hypertension. (Tr. 338). Dr. Willougby also examined Scheeler during this hospital stay and the medical records state "He felt that it was best to manage her aggressively given her history of noncompliance, uncontrolled diabetes, and young age. He spoke with Dr. Lisa Abrahams at St. Alexius Hospital and the plan is to transfer Josephine today for a cardiology consult and possible catheterization." (Tr. 339). Scheeler was then transported to St. Alexius Hospital. (Tr. 340). No additional medical records were submitted.
On June 6, 2002, two and a half years after the original request for review, the Appeals Council issued its decision. (Tr. 4). The Appeals Council concluded there was not a basis for granting Scheeler's request for review of the ALJ's decision. With respect to the additional medical records, the Appeals Council stated:
[It] has also considered the contentions raised in your representative's letter dated January 3, 2000, as well as the additional evidence also identified on the attached Order of the Appeals Council, but concluded that neither the contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision.
(Tr. 4).
V. STANDARD OF REVIEW
The Court plays a limited role when reviewing the Commissioner's decisions. Wiseman v. Sullivan, 905 F.2d 1153, 1155 (8th Cir. 1990). The Court does not conduct a de novo review. Keller v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994). Rather, it looks at the record as a whole to determine whether the decision is supported by substantial evidence. Upon review of the pleadings and transcript of the record, the Court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the Court must find that it is supported by substantial evidence appearing in the record as a whole. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992). The review of the record is more than a search for evidence supporting the Commissioner's decision. The Court must also take into account matters that detract from the ALJ's findings and apply a balancing test to weigh evidence which is contradictory. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991); Sobania v. Secretary of Health Human Services, 879 F.2d 441, 444 (8th Cir. 1989).
When conducting its review, the Court employs a "scrutinizing analysis" that balances the supporting and contradictory evidence on the record. Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). As noted, this requires more than a search for evidence that supports the Commissioner's decision. Id. The Court must review the entire record and weigh all evidence that fairly detracts from the Commissioner's findings. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989).
When determining whether there is substantial evidence to support the Commissioner's decision, the Court must consider:
1) the credibility findings made by the ALJ;
2) the plaintiff's vocational factors;
3) medical evidence from treating and consulting physicians;
4) the plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments;
5) any corroboration by third parties of the plaintiff's impairments; and
6) the testimony of vocational experts that is based upon a proper hypothetical questions setting forth the plaintiff's impairment.
Baker v. Secretary of Health and Human Services, 955 F.2d 552, 555 (8th Cir. 1992).
The substantial evidence standard "allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal." Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). In other words, while the Court may weigh evidence differently, it cannot reverse a Commissioner's decision if there is sufficient evidence to support either outcome.
VI. LEGAL DISCUSSION
The Court will address whether substantial evidence existed to support the ALJ's decision and the Appeal Council decision separately.
A. ALJ'S DECISION
Scheeler contends that the ALJ's decision was not supported by substantial evidence. However, she does not clearly delineate her various arguments. Her arguments do appear to fall into three areas: (1) the ALJ's alleged failure to shift the burden to the Commissioner to prove that there are other jobs in the national economy that she can perform; (2) the ALJ's alleged failure to call a vocational expert; and (3) the ALJ's alleged failure to address subjective complaints.
1. FAILURE TO SHIFT BURDEN TO THE COMMISSIONER
Scheeler argues that the ALJ did not properly shift the burden to the Commissioner to prove that there are other jobs in the national economy that she can perform. Scheeler apparently bases this argument on the premise that Scheeler was unable to perform her past relevant work, even though the ALJ found that she was able to perform her past relevant work as a telemarketer. (Tr. 20). It is well-established that the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform, only if the claimant cannot perform the past work. 20 C.F.R. § 404.1520. Here, because the ALJ found that Scheeler could perform her past relevant work, it was not error for the ALJ to end his analysis after step four and not consider the burden shifting of step five. 20 C.F.R. § 404.1520.
2. FAILURE TO CALL A VOCATIONAL EXPERT
Scheeler also asserts that it was error for the ALJ not to call a vocational expert. She cites to Nevland v. Apfel, 204 F.3d 853, 587 (8th Cir. 2000), to support this argument. However, Nevland is not helpful because a vocational expert was called and did testify in that case. Scheeler does not provide any other authority for her position that a vocational expert must be called.
In certain situations, Eighth Circuit case law requires the testimony of a vocational expert. However, in each of these cases the ALJ had determined that the claimant was unable to return to his or her past relevant work and was relying on the opinion of a vocation expert to establish whether the claimant was able to perform other jobs existing in the national economy. See Haley v. Massanari, 258 F.3d 742, 747-48 (8th Cir. 2001) (finding "[w]here the claimant has a nonexertional impairment, such as pain, the ALJ may not exclusively rely on the vocational grids to determine disability but must also consider the testimony of a vocational expert"); Ellison v. Sullivan, 921 F.2d 816, 819 (8th Cir. 1990) (stating in cases were the record indicates that the claimant suffers from a nonexertional impairment or an exertional impairment which does not fit within the guidelines, a vocational expert or other similar evidence must be used to meet the burden of showing there are jobs in the national economy which the claimant is capable of performing); Woods v. Bowen, 854 F.2d 288, 292 (8th Cir. 1988) (holding it was not reversible error to fail to call a vocational expert when there is substantial evidence a claimant could perform work in the national economy despite non-exertional impairment); Dawson v. Bowen, 815 F.2d 1222, 1227 (8th Cir. 1987) (same); Tucker v. Heckler, 776, F.2d 793, 796 (8th Cir. 1985) (same). The case law requiring a vocational expert is not applicable to the current dispute because the ALJ concluded that Scheeler was able to return to her past relevant work. The ALJ did not err by choosing not to call a vocational expert to testify.
3. FAILURE TO ADDRESS SUBJECTIVE COMPLAINTS
Scheeler also contends that the ALJ failed to address her subjective complaints when finding that she retained the capacity to perform her past relevant work. Scheeler asserts that she is unable to carry on any activity after a two-minute spell and needs to elevate her legs while in a seated position. (Docket No. 10, p. 10). Scheeler's characterization that she is unable to carry on any activity after a two-minute spell is somewhat an exaggeration of the evidence. Dr. Tello, in his report, found that Scheeler was "unable to continue any further exercise" after two minutes of running in place. (Tr. 317). Dr. Tello did not find that Scheeler was unable to carry on any activity after two minutes. Scheeler's additional assertion that she needs to elevate her legs while seated is also an inaccurate statement. She cites to pages 54-55 of the Record to support this assertion, yet after a thorough review of the entire record, there is no mention of a need to elevate her legs when seated. In addition, Scheeler testified that she frequently takes one to one-and-a-half hour drives, which belies the assertion she must elevate her legs while seated. (Tr. 52-53)
Scheeler also asserts that the ALJ did not address her complaints that she is frequently house-bound as a result of her GI episodes. The ALJ accepted that Scheeler has GI episodes, but he found her claim that these episodes effectively debilitated her for up to a week, every four or five weeks inconsistent with the lack of medical records and ongoing treatment. (Tr. 19). The ALJ permissibly discounted Scheeler's account of the severity of her GI episodes because her account was inconsistent with available medical records. See Cruse v. Bowen, 867 F.2d 1183, 1186 (8th Cir. 1989) (permitting an ALJ to disbelieve a claimant's subjective complaints if there are inconsistencies in the evidence).
Scheeler also argues that the ALJ ignored her statements which described her leg pain level as an eight on a scale of one to ten. (Tr. 12). The ALJ acknowledged that Scheeler suffered pain when walking or when climbing stairs, but he also noted, based on Scheeler's own testimony, that the pain subsided when she was seated. (Tr. 12). Further there was no medical evidence of pain medication or pain management treatments. (Tr. 18-19); Singh v. Apfel, 222, F.3d 448, 453 (8th Cir. 2000) (lack of evidence that the claimant has received medical treatment or pain medications may be used to discredit allegations of disabling pain). Thus, the ALJ did not conclude that Scheeler's pain allegations were not credible. Rather, he found they were not always present and did not affect her residual functional capacity to perform sedentary work.
It is well-established that deference must be given to the ALJ's assessment of credibility. Here, the ALJ accepted Scheeler's assertions that she suffered from leg pain and GI episodes, but he declined to find that these conditions were so severe as to hamper her residual functional capacity to work. The ALJ based his conclusion on the lack of medical treatment sought or prescribed for these aliments and on the inconsistencies in the evidence. The ALJ's credibility assessment is supported by substantial evidence.
B. APPEALS COUNCIL DECISION
Finally, Scheeler contends that the Appeals Council failed to address the additional medical records before it when denying her request for a review of the ALJ's decision. Under 20 C.F.R. § 404.970:
(a) The Appeals Council will review a case if —
(1)There appears to be an abuse of discretion by the administrative law judge;
(2)There is an error of law;
(3)The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or
(4)There is a broad policy or procedural issue that may affect the general public interest.
(b)If new 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 administrative law judge 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 administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.
The additional medical records submitted by Scheeler documented medical attention received on March 28-29, 2001, nearly a year and a half after the ALJ's decision. The Appeals Council did not err in refusing Scheeler's request to review the ALJ's decision when the additional medical records reflected diagnosis and treatment received after the ALJ's decision was issued. 20 C.F.R. § 404.970.
The Court understands the frustration of a claimant who waited more than two (2) years to receive a decision by the Appeals Council and has great empathy for a claimant who has been subjected to such dilatory decision making. The new medical information provided from Scheeler's hospital stay in late March of 2001 may establish that her condition has worsened and her impairments have increased, which in turn may cause substantial limitations in her residual capacity to work. Unfortunately, the Court cannot consider the additional information in this proceeding. If Scheeler has not already done so, she has the right to reapply for disability insurance benefits in order to have her updated medical records and changed medical condition examined more fully by the Commissioner.
VII. CONCLUSION
There is substantial evidence in the record to support the Commissioner's decision that the plaintiff did not meet the disability requirements of the Social Security Act. The Court GRANTS the Defendant's Motion for Summary Judgment (Docket No. 11) and DENIES the Plaintiff's Motion for Summary Judgment (Docket No. 10). The Commissioner's decision is affirmed.
SO ORDERED.