are defined by Reg. § 404.1567." Shields, 801 F. Supp. at 155. In determining if work is available for the claimant in the national economy, the ALJ may use a vocational expert (Reg. § 404.1566(e)), and if there is work available, then a finding of not disabled must result. Reg. §§ 404.1520(f)(1), .1566(b).
Standard of Review
Section 205(g) of the Social Security Act provides that a district court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The statute further provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." Id. Substantial evidence means "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994) (quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)). Thus, a reviewing court will not "reevaluate the facts, reweigh the evidence or substitute [its] own judgment for that of the Secretary." Luna, 22 F.3d at 689.
Lloyd makes four principal arguments in support of his contention that the Secretary's decision denying him Social Security disability benefits is not supported by substantial evidence. Pl.'s Mot. for Summ.J. at 10-12.
First, Lloyd contends that Dr. Antia's evaluation shows that has been disabled due to depression at least since before the expiration of his insured status. Id. at 8. Because Dr. Antia evaluated Lloyd almost six years after the expiration of his insured status, and approximately 13-14 years after the accident identified by Dr. Antia as responsible for Lloyd's mental impairment, Lloyd attempts to buttress this argument by citing medical studies which indicate a causal relationship between chronic pain and depression. Id. at 8-9. Lloyd appears to be arguing that because he has suffered from chronic pain since 1978, and medical studies suggest that chronic pain can cause depression, the diagnosis of depression made in 1992 by Dr. Antia should be related back to the accident in 1978. Id. at 9. Lloyd also argues that because Dr. Antia's report was not in existence at the time of the hearing before the ALJ, and was only examined by the Appeals Council, the court should at least order a remand to enable the ALJ to examine the report and consult a medical advisor to establish the onset date of this alleged disability. Id. 14-16.
Second, Lloyd briefly alleges that the Secretary ignored Dr. Gerhold's most recent medical opinion about his alleged physical disability. Id. at 10.
Next, Lloyd faults the Appeals Council for reversing one of the ALJ determinations about his pain; He argues that because he did not appear before the Appeals Council it was not in a position to make a credibility determination about his claims of pain, and consequently its finding about his pain was not supported by substantial evidence. Id. at 11-12.
Finally, Lloyd argues that because pain and depression are nonexertional impairments a vocational expert, as opposed to the Grid, should have been consulted by the Secretary when establishing whether jobs exist in the national economy that Lloyd could perform at his exertional level. Id. at 12.
We will address Lloyd's arguments seriatim. Lloyd's first argument, that his case should be remanded to permit the ALJ to consider Dr. Antia's report, need not detain us long. The Court may remand a case to the Secretary to consider additional evidence only if the additional evidence is "new, material, and there is good cause for not introducing it during the administrative proceedings." Sears v. Bowen, 840 F.2d 394, 399 (7th Cir. 1987) Dr. Antia's report and the scientific evidence submitted in this case is not "new or material" in the requisite sense because it was explicitly considered by the Appeals Council in reaching the determination that became the final decision of the Secretary. Where, as here, there is a decision of the Appeals Council, it and not the decision of the ALJ is reviewed as the final decision of the Secretary. Stein v. Sullivan, 892 F.2d 43, 46 (7th Cir. 1989); Bauzo v. Bowen, 803 F.2d 917, 920-21 (7th Cir. 1986). Because the Appeals Council explicitly considered and discounted Dr. Antia's report in reaching its determination, that report does not constitute "new" or "material" evidence, and is therefore not a proper basis for directing a remand under section 405(g). The cases cited by Lloyd do not indicate a contrary result as they involve situations in which the evidence deemed "new" by the reviewing courts was not considered by either the ALJ or the Appeals Council. See, e.g., Sears v. Bowen; 840 F.2d 394 (7th Cir. 1987) (involving evidence first submitted ten months after the appeals council issued its decision); Kemp v. Weinberger, 522 F.2d 967, 968 (9th Cir. 1975) (granting remand to consider evidence presented for the first time before the district court).
Because Dr. Antia's report was considered by the Secretary, the only relevant issue involving Lloyd's claim of mental impairment is whether, in light of Dr. Antia's report, the determination by the Secretary that Lloyd was not mentally disabled on or before September 30, 1986 is supported by substantial evidence. The Appeals Council found Dr. Antia's report "highly speculative and uncorroborated by other evidence contemporaneous with the period at issue." (R. 9) In making this determination, the Appeals Council noted that at no time did Lloyd allege a mental disability prior to his visit with Dr. Antia and that none of the doctors that treated Lloyd over the thirteen to fourteen year period between Lloyd's work accident and Dr. Antia's examination ever suggested that he was suffering from any such disability. (R. 10) The Appeals Council also indicated that it discounted Dr. Antia's findings, in part, because Antia was not Lloyd's treating physician--whose opinion would ordinarily be given great weight--but rather, was merely a consulting psychologist who first examined Lloyd 5 1/2 years after his insured status expired. (R. 10)
It is apparent that the Appeals Council fully considered the record as a whole in evaluating Lloyd's claim of a mental impairment. As the Appeals Council correctly observed, Lloyd's medical records spanning approximately thirteen years do not contain a shred of evidence corroborating the conclusion that Lloyd suffered from a mental impairment--no less a severe mental impairment.
Moreover, despite being asked several times by his advocate about the emotional consequences of his disability, Lloyd gave no indication that he was suffering from depression or any other psychological disorder. Our role as a reviewing court is not to reweigh the evidence considered by the Appeals Council; rather, we serve the limited role of ascertaining whether the decision of the Appeals Council is supported by substantial evidence. In view of the Appeals Council's analysis of the record as a whole, the Court is unable to conclude that the Council's determination that Lloyd was not suffering from a mental disability prior to the expiration of his insured status is not substantially supported.
Lloyd's second argument, that the Secretary ignored one of Dr. Gerhold's medical opinions--which Lloyd alleges shows his medical disability, ignores the Secretary's analysis of the various medical opinions. In the first place, the Secretary did consider Dr. Gerhold's most recent medical opinion, upon which Lloyd now relies, but, in making her decision, she also took into account the rest of the medical evidence before her. Most notably, the Secretary observed that Dr. Gerhold's opinion rendered in 1991 that Lloyd was unable to perform sedentary work was not accompanied by supporting findings. (R. 10) And, significantly, as noted by the ALJ, Gerhold's previous opinions, which were rendered relatively contemporaneously with the alleged onset of Lloyd's disability, indicated that Lloyd could perform sedentary work. (R. 4). The Secretary also relied on opinions of other doctors--and the various negative x-rays, CT scans and myelogram--in reaching the conclusion that Lloyd was not disabled prior to the expiration of his eligibility for disability benefits. (See, e.g., R. 105-06 (Dr. Rabinowitz); R. 106 (Dr. Domoto); R. 109 (Dr. Brown)) In light of the wide array of evidence indicating that Lloyd could perform at least sedentary work, the Court cannot conclude that the Secretary's determination that he was not disabled is without substantial support.
Lloyd's argument that the Appeals Council erred in rejecting the ALJ's finding that Lloyd's residual functional capacity was reduced by pain, is unpersuasive. Lloyd contends that because the Appeals Council did not see Lloyd testify and therefore did not have the opportunity to observe his demeanor as did the ALJ, the Council should not have upset the ALJ's credibility determination. However, it is far from clear that the ALJ's finding 7 reflected a deliberate credibility determination. The ALJ made no explicit credibility findings and, to the extent that he implicitly rendered any opinion as to Lloyd's credibility, he appeared to find Lloyd's testimony not credible. See R. 112 P 4 ("The claimant's subjective complaints of pain and limitations do not find support in the objective medical record to demonstrate he was incapable of performing sedentary work . . . ."). The Appeals Council rejected finding 7 as inconsistent with the ALJ's other findings--specifically including finding 4. (R. 11) Moreover, the Appeals Council noted that finding 7 was inconsistent with the narrative portion of the ALJ's decision, wherein the ALJ expressed his finding that Lloyd was capable of performing a full range of sedentary work prior to the expiration of his eligibility for disability insurance. (R. 110-111). The Appeals Council thoroughly reviewed the medical evidence in the record; in view of that evidence, the Court cannot conclude that the Council's finding that Lloyd could perform the full range of sedentary work is without substantial support.
Lloyd's final claim, that because of his nonexertional limitations the Secretary was required to call on a vocational expert, instead of consulting the Grid, to establish whether jobs existed in the national economy which Lloyd could perform, also is without merit. Generally, where nonexertional impairments are present, a vocational expert must be consulted to determine the ability of a claimant to perform jobs available in the economy. Pugh v. Bowen, 870 F.2d 1271, 1277 n.6 (7th Cir. 1988). Lloyd argues that in his case a vocational expert should have been consulted because the ALJ found that his residual functional capacity was reduced by pain, a nonexertional impairment. Pl.'s Mot. for Summ. J. at 12. However, the Court has determined that the Secretary's decision that Lloyd was capable of performing a full range of sedentary work despite his pain or depression, was supported by substantial evidence. Therefore, the Secretary acted properly when she used the Grid to establish that Lloyd was not disabled rather than relying on a vocational expert.
For all the foregoing reasons, the court holds that substantial evidence supports the ALJ's determination that Lloyd was not "disabled" as of his date last insured as defined by the Social Security Act. While the court fully sympathizes with Mr. Lloyd's current medical condition, it cannot conclude, in light of all the evidence in the record, as well as the stringent legal standards for finding a person disabled, that the Secretary's determination is not substantially justified. Accordingly, Lloyd's motion for summary judgment and/or remand [20-1, 20-2] is denied, and the Secretary's motion for summary judgment [17-1] is granted. Judgment is entered in favor of the Secretary and against Lloyd.
United States District Judge
February 22, 1995