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Stepp v. Colvin

United States Court of Appeals, Seventh Circuit

July 31, 2015

SHEILA B. STEPP, Plaintiff-Appellant,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant-Appellee

Argued May 20, 2015

Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:13-CV-179 -- William G. Hussmann, Jr., Magistrate Judge.

For Shelia B. Stepp, Plaintiff - Appellant: Timothy E. Burns, Attorney, Thomas Browder, Attorney, Keller & Keller, Indianapolis, IN.

For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee: Javitt J. Adili, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.


Flaum, Circuit Judge.

Appellant Sheila Stepp, who suffers from degenerative disc disease and a variety of other impairments, seeks disability insurance benefits under Title II of the Social Security Act. Following a hearing, an Administrative Law Judge (" ALJ" ) issued a decision denying Stepp's claim. While acknowledging that Stepp suffered from chronic pain, the ALJ concluded that surgery, medication, and therapy had resulted in an improvement in Stepp's condition such that she retained the capacity to engage in sedentary work. Stepp sought review of the ALJ's decision by the Social Security Administration's Appeals Council, and submitted additional evidence in the form of medical records created just prior to the ALJ's denial of her disability claim. This evidence--specifically, the treatment notes of pain management specialist Dr. Allan MacKay--tends to suggest that Stepp's condition did not improve over the course of the adjudicative period to the extent that the ALJ estimated. The Appeals Council summarily declined to engage in plenary review of the ALJ's decision and, in so doing, did not expressly address Dr. MacKay's notes. The United States District Court for the Southern District of Indiana affirmed the ALJ's final decision.

Stepp appeals the district court's determination on two grounds: first, she contends that the ALJ's denial of her benefits request was not supported by substantial evidence; second, she argues that a remand for further proceedings is necessary in light of the " new and material" evidence presented by Dr. MacKay's medical records. We believe that the ALJ properly analyzed a range of conflicting testimony and medical opinions and reached a conclusion adequately supported by the record before her. However, we agree with Stepp that the denial notice from the Appeals Council indicates that the Council did not accept Dr. MacKay's treatment notes as new and material evidence, and we conclude that the Council made that determination in error. We therefore remand the case to the agency so that it may re-evaluate Stepp's condition in light of the information presented in Dr. MacKay's notes.

I. Background

In January 2010, Sheila Stepp--a former correctional officer, training secretary and coordinator, and parole probation officer--applied for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., with an alleged disability onset date of November 18, 2009. At the time, Stepp was 47 years old, 5'6" tall, and weighed 237 pounds. Her asserted disabilities consist primarily of degenerative disc disease and depression.

Stepp began seeking treatment for chronic neck pain in October 2008 and underwent several MRIs, which revealed multi-level degenerative disc disease of the cervical and up-per thoracic spine, with multiple disc herniations as well as significant foraminal stenosis. Stepp was referred to orthopedic surgeon Dr. Stephen Ritter in February 2009. She complained to Dr. Ritter of chronic pain in her neck, chest, shoulder, and arm, and further alleged numbness in her legs and her right hand, balance problems, memory loss, trouble sleeping, and severely limited range of motion. Upon examination, Dr. Ritter observed that Stepp had balanced posture and a balanced gait and that she had full grip strength; he ranked her deltoid strength at 4 out of 5. He also noted weakness in both upper extremities, though no obvious loss of muscle tone. In April 2009, Dr. Ritter performed an anterior cervical discectomy and fusion. At a follow-up appointment in June, Stepp reported total pain relief in her neck and no pain, numbness, or tingling in her hands or arms. Dr. Ritter concluded, however, that Stepp should refrain from working until she was " fairly far along" in the healing process; he estimated that she would be able to return to work " without restrictions" by mid-September, approximately five months after the surgery.

In late June 2009, Stepp sought treatment from primary care physician Dr. Meredith McCormick. An MRI of Stepp's lumbar spine revealed multi-level degenerative changes and slight retrolisthesis. Stepp began to see a physical therapist for pain management but discontinued therapy in September 2009 as a result of " stabbing pain" in her lower back, which worsened with bending, sitting, standing, or walking. Nevertheless, Stepp returned to work by early November. But during an appointment with Dr. McCormick on November 18, 2009, she complained of worsening back and chest pain, prompting Dr. McCormick to order a thoracic MRI; the MRI revealed severe degenerative disc disease and arthritis, as well as significant spinal canal stenosis cord impingement with possible myelomalacia.[1] In early December, Stepp again met with Dr. Ritter and described severe back and abdominal wall pain. Dr. Ritter concluded that " Ms. Stepp is pretty incapacit[ated] by her scapular and [abdominal] wall pain at this time." In December 2009 and January 2010, Dr. Ritter administered a selective thoracic nerve root block and a thoracic epidural injection. At a follow-up appointment on January 18, 2010, Stepp reported feeling " much better" but explained that she did not feel that she could " quite go back to work given the pain that she still ha[d] with reaching and twisting." Dr. Ritter agreed that Stepp should " hold off on work for another few weeks." After renewed complaints of persistent back pain, Dr. Ritter performed additional surgery--a discectomy and fusion--in March 2010. On April 15, 2010, Stepp reported that she had " not felt this good in a long time," and noted that the significant lower extremity dysfunction that she experienced prior to surgery was gone.

In April 2010, consulting psychologist Dr. J. Mark Dobbs examined Stepp at the state agency's request. Dr. Dobbs noted that Stepp, who had undergone back surgery just two weeks earlier, walked very slowly and used a walker. After learning of Stepp's lengthy history of depression, Dr. Dobbs diagnosed her with post-traumatic stress disorder (a result of childhood abuse) and dysthymia--a mild, long-term form of depression. Dr. Dobbs assigned Stepp a Global Assessment of Functioning (" GAF" ) score of 59, indicating moderate symptoms. State agency psychologist Dr. B. Randal Horton also completed a psychiatric review and concluded that Stepp's ability to work was unaffected by her mental impairments.

Consulting physician Dr. Mohamad Mokadem also examined Stepp. He noted her reported improvement following her two spinal surgeries but determined that she " still [could] not go back to her job because of limitation in her movement as well as ... her persistent daily pain." However, Dr. Mokadem concluded that Stepp's pain caused her only " mild distress." He also concluded that Stepp's gait was grossly normal, her muscle strength and tone were normal, her deep tendon reflexes were normal, and her grip strength and fine finger skills were normal. State agency physician Dr. A. Dobson reviewed the record in late May 2010 and per-formed a Residual Functional Capacity (" RFC" ) assessment, concluding that Stepp could perform light work--that is, she could lift twenty pounds occasionally and ten pounds frequently, and could stand or walk for up to six hours during an eight-hour workday. He further concluded that she could only occasionally climb stairs, balance, kneel, or crouch, and that she could not climb ladders, ropes, or scaffolds. Dr. Dobson also determined that the record did not indicate any manipulative, visual, or communicative limitations.

By July 2010, Dr. Ritter had cleared Stepp to resume work. Stepp reported to Dr. McCormick that her back pain was " much, much better." In addition, Stepp stopped taking oxycodone, though she continued to take less potent pain medications. On July 26, 2010, Dr. McCormick--who at that point had treated Stepp for over a year--completed a questionnaire evaluating Stepp's RFC. Contrary to Dr. Ritter's assessment, Dr. McCormick concluded that Stepp could sit, stand, and walk for less than two hours during an eight-hour workday--thereby entirely precluding the possibility of work. However, Dr. McCormick made clear that she anticipated Stepp's condition would improve after she underwent scheduled changes to her medication. Dr. McCormick noted in her questionnaire: " I fill this out based on how [Stepp] is now. Anticipate improvement with hospitalization by pain [doctor] for med changes. Unclear how [Stepp] will progress [with] regards to pain. This is her main limitation. Hope hospitalization will improve function significantly." Dr. McCormick further stated that she did not feel comfortable opining as to Stepp's potential pain-related limitations following her impending hospitalization.

Treatment notes prepared by pain specialist Dr. Bruce Durell indicate that Stepp reported sleeping well after her medication changes and that her pain control was generally good, particularly with the aid of a transcutaneous electrical nerve stimulation (" TENS" ) unit. Nevertheless, Stepp continued to experience major depression. In October 2010, Dr. Durell started Stepp on a regimen of Cymbalta and Flexeril. On November 1, after renewed complaints of sharp spinal pain that worsened while sitting and standing, Dr. Durell diagnosed Stepp with chronic lower back and neuropathic pain and determined that she should remain off work. Over the course of several follow-up ...

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