hearing. The VE testified that the skill and exertional levels of Plaintiff's prior employment were as follows: (1) Plaintiff's clerk/cashier job was unskilled, light work; (2) Plaintiff's production assembler job at Dove Bar was generally an unskilled sedentary job; and (3) Plaintiff's production welder job was semi-skilled, medium work. (R. 339.) The VE testified that a person of Plaintiff's age, education, medical condition and work history could perform sedentary work and could perform the job of production assembler in the national economy. (R. 339-342.)
The VE testified that if the ALJ credited Plaintiff's testimony regarding her limitations on walking, standing, lifting and drowsiness caused by medication, there would be no jobs that she could perform in the economy. (R. 340-41.) The VE also testified that if the ALJ did not credit Plaintiff's testimony that she suffered from drowsiness caused by the medications, Plaintiff could perform other work plentifully existing in the national economy, including work as a telephone marketing clerk, a charge account clerk, or a credit reference clerk. (R. 341-42.)
IV. THE ALJ'S FINDINGS AND DECISION
The ALJ found that Plaintiff had not engaged in substantial gainful activity since August 1, 1991 -- the alleged onset of disability. (R. 14.) The ALJ found that Plaintiff had impairments which, although severe, did not meet or equal the requirements of any medical listings in the regulations at 20 C.F.R. Part 404, subpt. P, app. 1. (R. 15.) The ALJ described Plaintiff's impairments as "a history of a myocardial infarction with angioplasty, a history of hernia repairs, diabetes mellitus, hypertension, obesity and asthma." (R. 17.) Because the ALJ did not find that Plaintiff's impairments met or equaled a listed impairment, the ALJ assessed her RFC -- what Plaintiff could do despite her limitations.
After reviewing the testimony presented at the hearing and Plaintiff's medical records, the ALJ concluded that Plaintiff was not disabled because she retained the residual functional capacity for at least sedentary work and she could perform her past relevant sedentary work as a product hand assembler. (R. 16-18.) The ALJ found that Plaintiff's past relevant work as a product hand assembler did not require the performance of work-related activities precluded by Plaintiff's limitations. (Id.) Because the ALJ found that Plaintiff could perform her past relevant work at step four of the sequential analysis, the ALJ did not consider step five of the sequential analysis, whether Plaintiff was capable of performing other work and whether such work existed in the national economy.
I. THE PAST RELEVANT WORK ISSUE
Plaintiff's threshold argument is that the ALJ's finding that Plaintiff could perform her past relevant work as a product hand assembler is not supported by "substantial evidence."
In order for a Plaintiff to show, at step four of the sequential analysis, that she is unable to perform her past relevant work, she is required to prove that she did not have the residual functional capacity to perform the functional demands and duties of her past job either: (1) as she actually performed the job, or (2) as was generally required by employers throughout the national economy. See, e.g., Brewer v. Chater, 103 F.3d 1384, 1393 (7th Cir. 1997); Arbogast v. Bowen, 860 F.2d 1400, 1403 (7th Cir. 1988). To make this determination, it is necessary to compare the demands of the past position with the claimant's present capacity. See, e.g., Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir. 1984).
Initially, it appears from the record that Plaintiff could not perform the functional demands of her specific job at Dove Bar as she actually performed it. At Dove Bar, Plaintiff performed her job standing. (R. 325.) However, the ALJ noted without apparent disagreement that, according to a medical assessment by Plaintiff's treating physician, Plaintiff could only stand approximately two hours per work day. (R. 15-16.) Plaintiff testified that she could only stand at one time around 15 to 20 minutes without having problems. (R. 327.) Tellingly, the VE testified that due to the job standing requirement, Plaintiff could not perform her job at Dove Bar as she previously had performed it. (R. 342.)
The next issue thus is whether plaintiff could perform her past relevant work as it is generally performed in the national economy. As stated, the plaintiff had the burden to show that she could not perform her past relevant work. The ALJ determined that plaintiff's testimony as to her residual functional capacity was not credible in view of the objective medical findings and other evidence of record. (R. 16, 18.)
The ALJ further found that plaintiff retained the capacity to perform her past relevant work as a sedentary
level product hand assembler. (R. 16, 18.)
There was "substantial evidence" of record to support the ALJ finding that Plaintiff could perform her past relevant work as a sedentary level product hand assembler. The ALJ relied on the testimony of the vocational expert. The vocational expert, having reviewed the entire record and heard the plaintiff's testimony, unequivocally testified: (a) that plaintiff could return to her past work as a production assembler; and (b) that Plaintiff's production assembler job is considered to be sedentary work as it is performed in the national economy and "most hand-assembly types of positions are performed at the sedentary level so there would be a variety of hand-assembly positions that she could perform" in the national economy. (R. 339-40, 342.) The above testimony was unobjected to, and the plaintiff's attorney at the hearing did not cross-examine the vocational expert on this point(s).
II. NEWLY SUBMITTED EVIDENCE
After the ALJ issued his decision, Plaintiff submitted some additional evidence to the Appeals Council. (R. 304-17.) The evidence included medical records from Plaintiff's hospitalizations for hernia repair in February 1993, March 1994, April 1994 and October 1995. (R. 308-17.) The Appeals Council considered this additional evidence in Plaintiff's request for review, but concluded that the evidence did not "provide a basis for changing the [ALJ's] decision." (R. 4.) Plaintiff has filed a motion for remand and argues that this court should reconsider Plaintiff's claim in light of this additional evidence.
Where, as here, the Appeals Council has denied review and the ALJ decision is the final decision, it is ordinarily improper for a court to consider new evidence not presented to the ALJ because "the correctness of that decision depends on the evidence that was before the [ALJ]." Eads v. Secretary of the Dept. of Health & Human Servs., 983 F.2d 815, 817 (7th Cir. 1993). See also Diaz v. Chater, 55 F.3d 300, 305 n.1 (1995). Nevertheless, a court may conduct a limited review of new evidence where the claimant alleges that the Appeals Council's denial of review rests on a mistake of law. Eads, 983 F.2d at 817; Prak v. Chater, 892 F. Supp. 1081, 1085 (N.D. Ill. 1995). In addition, pursuant to the sixth sentence of 42 U.S.C. § 405(G), this court may remand the case for consideration of new and material evidence. See Eads, 983 F.2d at 817. Plaintiff argues both that the Appeals Council made a legal mistake in failing to deny review (based on the additional evidence) and that the additional evidence mandates remand.
Plaintiff states that the critical issue for deciding whether the Appeals Council erred in denying review or whether remand is warranted under 42 U.S.C. § 405(g) is the materiality of the evidence. To establish materiality, Plaintiff must show a "reasonable probability" that the ALJ would have reached a different disposition of the disability claim if presented with the new evidence. See Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993) (quoting Sears v. Bowen, 840 F.2d 394, 400 (7th Cir. 1998)).
This court has determined from the de novo review of the additional evidence submitted by Plaintiff that this evidence would not have a reasonable probability of causing a different disposition. First, Plaintiff submitted reports concerning operations performed on Plaintiff on February 19, 1993, March 26, 1994, and April 11, 1994. (R. 308-10.) It is difficult to understand how these records are "material" because the records predated both of Plaintiff's medical residual functional capacity assessments. (See R. 257-64, 287-91) Thus, any limitations which Plaintiff suffered in conjunction with these operations were considered in Plaintiff's aforedescribed RFC assessments of record.
In any event, contrary to Plaintiff's contention, the additional evidence of these hernia surgeries, and her hernia surgery and hospitalization in October, 1995 (R. 311-17), do not provide a basis for changing the ALJ's decision. This evidence elaborates on Dr. Kaskebar's diagnoses and treatment, but does not in any way connote a change in Plaintiff's RFC as described by Dr. Kasbekar in August 1995 and as found by the ALJ. (R. 15, 16, 287-91, 308-17.) Moreover, the additional evidence only confirms the ALJ's statement of Plaintiff's condition as a history of recurrent hernias requiring surgeries (R. 15-16) and the ALJ's conclusion that further surgery can again correct Plaintiff's condition, although she still will have ongoing lifting restrictions (R. 16, compare to Dr. Kasbekar's findings that Plaintiff had "tolerated the [October, 1995] procedure well" and that her October, 1995 post operative recovery was "uneventful" (R. 314, 315)).
In short, the subject evidence does not meet the definitional standard for materiality.
In view of the foregoing, the Commissioner's decision is affirmed. The Plaintiff's motion for remand is denied.
Dated: September 4, 1997
IAN H. LEVIN
United States Magistrate Judge