From 1979 through early 1992 Yousif performed unskilled light work as a bindery machine operator at Commerce Clearing House (R. 18). Her job entailed removing books from a machine and placing them on a skid or cage truck, and sometimes feeding unbound books into a machine (R. 100), all of those activities requiring the constant use of both hands (R. 55). Because of a job-sustained injury to her right elbow, Yousif claims that she became unable to work on January 14, 1992 (R. 38).
On December 23, 1992 Yousif filed a claim for disability benefits (R. 96-103). Her application was denied initially (R. 73-75) and on reconsideration (R. 80-82). Next Yousif sought a hearing, which took place before Administrative Law Judge ("ALJ") Allyn Brooks on November 4, 1993 (R. 34). Both Yousif and Vocational Expert Frank Mendrick ("Mendrick") testified at the hearing. Also before the ALJ were medical reports from several doctors who had treated Yousif (R. 114-26, 129-76). At the time of the hearing Yousif was 48 years old and had a high school education (R. 23).
At the time of the hearing Yousif testified that her condition was a little better than at the time she had to leave work in January 1992, when she not only suffered pain whenever she sought to use her right hand or arm--she could not then even hold a telephone or lift a spoon to eat (let alone lifting articles at work), she suffered muscle stiffness and swelling from the forearm to the wrist, she had a knifelike pain whenever she tried to use her finger--but she also had pain in the arm when she was not using it (R. 39-40). As of the hearing date she said she felt no pain when just sitting, but the pain continued whenever she used the arm or hand, even to dress or undress or to eat (R. 41). Indeed, her inability to use her right hand had led to pain in her left arm and shoulder from overuse (R. 41-42, 44).
In his March 25, 1994 written opinion the ALJ concluded from the "somewhat equivocal" medical records, in combination with Yousif's testimony about her pain, that she was under a disability from January 14, 1992 through March 3, 1993 (R. 19). In part he pointed to reports by Yousif's chiropractor Dr. James Abele describing her "palpable swelling and tenderness of the right lateral epicondyle" and "hypoesthesia of the right C6 dermatome distal to the elbow" (R. 19).
ALJ Brooks also relied on reports from Dr. Leon Benson that Yousif experienced a "limited range of motion in the right elbow with tenderness and swelling," that she complained that any movement of her right arm caused pain and that she had been given cortisone shots that provided only temporary relief from pain (R. 19).
ALJ Brooks also discussed other medical evidence that was "not as persuasive in supporting a finding of disability" (R. 19). He referred to EMG studies that showed no evidence of compression neuropathy and to Dr. Benson's observations that Yousif had full range of motion in her right arm, that she could lift 40 pounds with her right hand by August 1992 and that there was no objective evidence of loss of strength and no visible problems on x-rays (R. 19). ALJ Brooks noted that Yousif's family doctor Dr. Adnan Barazi was the only doctor who said that Yousif could not work, but that it was also "unclear whether he was referring only to her past relevant work of to any work" (R. 19).
Nonetheless the ALJ explained why he gave Yousif the "benefit of the doubt" about her complaints from her claimed onset date through March 3, 1993, in material part because he found her complaints of pain credible (R. 19). Indeed, in that respect Yousif's subjective pain and its effect on her (causing an inability to perform work-related activities) seemed to be dispositive, as the ALJ concluded that Yousif was unable to perform even sedentary work and that she was therefore disabled beginning on January 14, 1992 (R. 19).
ALJ Brooks went on to find that as of March 4, 1993 Yousif had experienced "medical improvement" such that she was able to perform a partial range of light work (R. 19-22), referring for that purpose to doctors' statements that he said supported the conclusion that Yousif could perform limited work activity after that date (R. 20, 21). Specifically the ALJ pointed to a March 3, 1993 letter by Dr. John Ruder based on a March 1, 1993 physical examination (R. 20). ALJ Brooks relied on Dr. Ruder's observations that Yousif had full range of motion in her right shoulder, wrist and fingers; that she had tenderness over the lateral epicondyle but no soft tissue swelling in that area; that she had intact sensation in the fingers of the right hand; that x-rays showed no degenerative changes associated with lateral epicondylitis; and that Yousif could lift up to 20 pounds with her right hand but could not use her right arm for frequent motions (R. 20). He also described Dr. Ruder's letter as "indicating the claimant can perform limited work activity" (R. 20). In addition the ALJ relied on Dr. Abele's July 1993 report (R. 21) finding that Yousif could work and that she could lift up to 10 pounds with her right arm, but that she could not climb, grasp, engage in repetitive handling, push or pull with that arm (R. 21).
ALJ Brooks admitted that "the medical evidence does show some objective problems" (R. 21). Nonetheless, because he found Yousif's complaints of disabling pain since March 4, 1993 lacking in credibility, he said that there was sufficient evidence to support a finding of medical improvement (R. 21).
ALJ went on to find--again giving Yousif "the full benefit of the doubt"--that she could not use her right arm to lift more than 10 pounds, or for frequent motions or grasping, repetitive handling, pushing or pulling, and that she could not climb (R. 21). Yousif was therefore restricted to a part of the full range of light work (R. 21). Indeed, the ALJ found that those limitations prevented her from returning to her past light work as a bindery operator, thus shifting the burden to Commissioner to show that she could perform significant numbers of jobs existing in the national economy. Based on the testimony of Vocational Expert Mendrick that there were 1,800 available jobs that could primarily be performed with the use of only one hand at a time, and with only occasional rather than frequent use of both hands (ticket taking and visual inspection jobs), the ALJ found that Yousif was not under a disability after March 4, 1993 (R. 22).
Yousif next filed a request for review with the Appeals Council. In addition to arguing that the ALJ's finding of medical improvement was not supported by substantial evidence (R. 181-82), Yousif submitted two new items of evidence--additional notes from Dr. Barazi and a report of her August 1994 surgery for carpal tunnel and lateral epicondyle release--that she claimed established the credibility of her complaints of pain, and consequently the error in the ALJ's conclusion that she was not disabled after March 4, 1993 (R. 181-82).
On January 3, 1995 the Appeals Council denied Yousif's request for review. First the Council ruled that Dr. Ruder's March 3, 1993 letter was substantial evidence that Yousif's condition had improved at that time and that Yousif was then able to return to work with certain limitations (R. 4). As for the newly submitted evidence, the Council found that it did not alter that conclusion (R. 5).
By denying Yousif's request for review, the Appeals Council made the ALJ's decision Commissioner's reviewable final decision (Section 405(g); Reg. § 404.981). Yousif then exercised her right under Section 405(g) to appeal Commissioner's decision to this Court.
Yousif makes two claims here. First she argues that the Appeals Council erred as a matter of law when it held that the "new evidence" submitted with Yousif's request for review did not provide a basis for changing the ALJ's decision (P. Mem. 9-11). Second she contends that the ALJ's determination that Yousif showed "medical improvement" after March 4, 1993 was not supported by substantial evidence (P. Mem. 11-18).
Appeals Council Decision
Commissioner's Reg. § 404.970(b) provides:
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 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.
This Court may review the Appeals Council decision as to whether new evidence is new and material ( Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992)),
as well as whether it "relates to" the period on or before the ALJ decision. New evidence is material "if there is a 'reasonable possibility' that it would change the outcome" ( Nelson, 855 F.2d 503, 506).
As stated earlier, Yousif submitted two pieces of evidence to the Appeals Council. One was a sheet of notes by Dr. Barazi that briefly summarizes each contact Dr. Barazi had with Yousif between February 17, 1992 and August 16, 1994 (R. 177), and the other was a two-page "Report of Operation" ("Surgery Report") that describes in some detail the surgery performed upon Yousif on August 29, 1994 (R. 178-79). Yousif urges that the new evidence shows that her pain continued through 1993 and 1994, so that the ALJ was wrong in determining that her reports of pain were not credible after March 4, 1993. Commissioner counters that the new evidence would not impact the ALJ's decision because it does not show that Yousif experienced pain while her right arm was at rest, which is what the Commissioner claims was dispositive in the ALJ's decision as to disability during the closed period. Commissioner also argues that the new evidence is time-barred.
That latter argument is persuasive as to the Surgery Report. Surgery that took place on August 29, 1994 does not relate back to the period at issue: that between March 4, 1993 and the ALJ's March 25, 1994 decision. While Yousif's argument may appeal to common sense, it cannot survive the timing requirement imposed by Reg. § 404.970(b) that new evidence may be considered "only where it relates to the period on or before the date of the administrative law judge hearing decision." Yousif's expansive reading of the "relates to" requirement would allow a claimant to challenge an ALJ's adverse ruling by newly consulting additional doctors to repair any defects cited by the ALJ. At some point the evidence must close and the ALJ must make a decision based on the evidence before him or her. It is surely rational for the Regulation to require that a line be drawn at the time the ALJ makes a decision, and the Surgery Report is on the wrong side of that line.
Dr. Barazi's notes pose a different problem. In the sense that the sheet of notes was not before the ALJ at the time of his decision, it is "new evidence." Eleven of the one-line entries pre-date the ALJ's March 25, 1994 decision and thus meet the "relates to" requirement (R. 177), although five other entries dated after the ALJ's March 25, 1994 decision fail that test for the same reason as the Surgery Report.
Because some of the entries are new evidence relating to the period before the ALJ's decision, the next question is whether there is a reasonable possibility that the new evidence would change the outcome of the ALJ's decision ( Nelson, 855 F.2d at 506). That question gets a "No" answer.
To begin with, eight of the eleven entries pre-date September 22, 1992, when Dr. Barazi filed an "Attending Physician's Statement" (R. 163-64) that was before the ALJ when he made his decision. It is hard to see how eight lines of cryptic notes in the "new" Barazi report add anything to the September 22, 1992 report.
And the other three entries (falling between September 22, 1992 and March 25, 1994) would have been of little help to the ALJ. As best as they can be deciphered, those entries read (R. 177):
October 1, 1993--M.R.I. Rx Amoxil & Pfizer [unreadable]