Easley v. Kijakazi ( 2022 )


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  • Case: 21-60888     Document: 00516335966         Page: 1     Date Filed: 05/27/2022
    United States Court of Appeals
    for the Fifth Circuit                               United States Court of Appeals
    Fifth Circuit
    FILED
    May 27, 2022
    No. 21-60888                           Lyle W. Cayce
    Summary Calendar                              Clerk
    Roger Easley,
    Plaintiff—Appellant,
    versus
    Kilolo Kijakazi, Acting Commissioner of Social Security,
    Defendant—Appellee.
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 4:20-CV-218
    Before Higginbotham, Higginson, and Duncan, Circuit Judges.
    Per Curiam:*
    Roger Easley appeals from the judgment of the district court affirming
    the Social Security Commissioner’s final administrative decision denying his
    applications for disability insurance benefits and supplemental security
    income. We AFFIRM.
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    Case: 21-60888     Document: 00516335966           Page: 2   Date Filed: 05/27/2022
    No. 21-60888
    In May 2019, Easley applied for a period of disability, disability
    insurance benefits, and supplemental security income, alleging disability
    beginning in July 2015 due to a back impairment and other medical problems.
    He later amended his alleged disability onset date to January 2018. The
    claims were initially denied in August 2019 and again upon reconsideration
    in October 2019.
    On August 18, 2020, after an administrative hearing, the ALJ issued a
    decision finding Easley not disabled. Based on the evidence before her, the
    ALJ found that Easley “has the following severe impairments: degenerative
    disc disease, degenerative joint disease, diabetes, gout, bilateral cataracts,
    hypermetropia, and obesity.” But these impairments did not meet or
    medically equal the severity of any impairments listed in the regulations for
    presumptive disability. The ALJ ultimately found that Easley “has the
    residual functioning capacity to perform light work” with specific
    limitations. Having considered Easley’s “age, education, work experience,
    and residual functional capacity,” the ALJ found “there are jobs that exist in
    significant numbers in the national economy that [he] can perform.” Easley
    accordingly “ha[d] not been under a disability, as defined in the Social
    Security Act,” from January 2018 through the present date.
    Easley sought review by the Appeals Council. He submitted as
    additional evidence results of an MRI from September 10, 2020. The MRI
    revealed desiccation of discs with broad-based disc bulges and bilateral bony
    neural foraminal narrowing at the L4-L5 and L5-S1 levels, possible bilateral
    L4 and L5 nerve root impingement, and multilevel facet arthropathy. The
    Appeals Council denied Easley’s request for review, explaining that the
    “additional evidence does not relate to the period at issue” and therefore
    “does not affect the decision about whether [Easley] w[as] disabled
    beginning on or before August 18, 2020.” See 
    20 C.F.R. § 404.970
    (a)(5)
    (providing for review if “the Appeals Council receives additional evidence
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    that is new, material, and relates to the period on or before the date of the
    hearing decision, and there is a reasonable probability that the additional
    evidence would change the outcome of the decision”); 
    id.
     § 416.1470(a)(5)
    (same).
    Easley sought judicial review in district court. The parties consented
    to proceed before the assigned magistrate judge for all purposes. See 
    28 U.S.C. § 636
    (c); Fed. R. Civ. P. 73. The court affirmed the
    Commissioner’s final decision. Easley v. Kijakazi, No. 4:20-cv-00218-RP
    (N.D. Miss. Sept. 23, 2021). Easley timely appealed. See Fed. R. App. P.
    4(a)(1)(B).
    Our review of the Commissioner’s denial of social security disability
    benefits is limited only to “whether (1) the final decision is supported by
    substantial evidence and (2) whether the Commissioner used the proper legal
    standards to evaluate the evidence.” Webster v. Kijakazi, 
    19 F.4th 715
    , 718
    (5th Cir. 2021) (citation omitted). Substantial evidence is “more than a mere
    scintilla”; it means only “such relevant evidence as a reasonable mind might
    accept as adequate to support a conclusion.” Biestek v. Berryhill, 
    139 S. Ct. 1148
    , 1154 (2019) (citations omitted). The claimant bears the burden of
    establishing a disability. Leggett v. Chater, 
    67 F.3d 558
    , 564 (5th Cir. 1995)
    (citation omitted).
    Easley argues that the Appeals Council erred by failing to consider the
    MRI results and that “there is a reasonable probability that [the MRI results]
    would change the outcome of the ALJ’s [u]nfavorable decision.” We
    disagree.
    Because “the Commissioner’s final decision necessarily includes an
    Appeals Council’s denial of a claimant’s request for review . . . , the record
    before the Appeals Council constitutes part of the record upon which the
    final decision is based.” Higginbotham v. Barnhart, 
    405 F.3d 332
    , 337 (5th Cir.
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    2005). Therefore, we “must examine all of the evidence, including the new
    evidence submitted to the [Appeals Council], and determine whether the
    Commissioner’s final decision to deny [Easley’s] claim was supported by
    substantial evidence.” Sun v. Colvin, 
    793 F.3d 502
    , 510 (5th Cir. 2015)
    (citations omitted).
    The Commissioner’s final decision was supported by substantial
    evidence. The record evidence includes nurse practitioner examinations,
    diagnostic x-ray films, a consultative physical examination, and a state agency
    medical review. The ALJ found that Easley had severe impairments that
    restricted him to a residual functioning capacity for light work with additional
    specific limitations. And the ALJ relied on vocational expert testimony to find
    that Easley could perform certain light jobs.
    Easley has not shown that the disc bulges revealed by the MRI existed
    during the relevant period—his alleged disability onset date through the date
    of the ALJ’s decision—as opposed to being a new development. See Johnson
    v. Heckler, 
    767 F.2d 180
    , 183 (5th Cir. 1985). Easley relies on Ripley v. Chater,
    
    67 F.3d 552
     (5th Cir. 1995); but Ripley is inapposite. There, the “new”
    medical evidence relied on by the claimant “was not a condition which
    developed after the ALJ’s decision” and “relate[d] to the period for which
    disability benefits [we]re sought.” 
    Id.
     at 555–56. Easley, who bears the
    burden, has made no such showing.
    Furthermore, as the district court explained, “even if the disc bulges
    existed during the relevant time period, the plaintiff’s lower back pain and
    associated limitations were considered by the ALJ when [s]he further
    restricted the plaintiff’s [residual functioning capacity], and there is no
    reasonable probability that the additional evidence would change the
    outcome of the decision.” Easley, slip op. at 9; see Ogbo v. Astrue, No. 07–
    486–FJP–DLD, 
    2008 WL 4530829
    , at *5 (M.D. La. Sept. 26, 2008); see also
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    Beck v. Barnhart, 205 F. App’x 207, 210, 214 (5th Cir. 2006) (per curiam)
    (holding x-ray and Doppler study performed two months after ALJ’s ruling
    and submitted to Appeals Council were “not material and did not provide a
    basis for reversal, and that the ALJ’s decision was based upon substantial
    evidence from the record as a whole”).
    AFFIRMED.
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