Getch, Charles E. v. Astrue, Michael ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2631
C HARLES E. G ETCH,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 06 C 143—Paul R. Cherry, Magistrate Judge.
____________
A RGUED A PRIL 22, 2008—D ECIDED A UGUST 13, 2008
____________
Before R IPPLE, E VANS and W ILLIAMS, Circuit Judges.
R IPPLE, Circuit Judge. Charles Getch appeals the order
of the district court upholding the Social Security Adminis-
tration’s denial of his application for Disability Insurance
Benefits. Mr. Getch contends that the Administrative Law
Judge (“ALJ”), who denied his application for benefits,
erred in concluding that environmental conditions at his
former workplace did not prevent him from resuming his
2 No. 07-2631
past work as a seam welder. Mr. Getch also contends that
the ALJ failed to consider the combined impact of his
health problems and erred in finding his testimony not
fully credible. Finally, Mr. Getch argues that the Social
Security Appeals Council erred in concluding that new
evidence did not warrant rehearing before the ALJ. For
the reasons set forth in this opinion, we reverse the judg-
ment of the district court and remand for further proceed-
ings before the agency.
I
BACKGROUND
A.
Mr. Getch, who is presently 58, underwent emergency
triple bypass surgery in 1998. He returned to his job as a
seam welder several months later. In December 1999, while
he was lifting heavy objects at work, Mr. Getch fractured
his sternum at the site of the sternotomy that had been
performed during his bypass surgery. Mr. Getch under-
went a second surgery to reconstruct the broken sternum
in March 2000, but that surgery was unsuccessful.
In October 2000, Mr. Getch visited a pain clinic, com-
plaining of a grinding and popping sensation in his chest.
Mr. Getch rated his pain during the day at 2 or 3 out of 10,
with 10 representing extreme pain, although he reported
that the pain grew worse with coughing or sneezing and
kept him awake at night. Over the next year, Dr. Looyenga,
a cardiologist, monitored Mr. Getch for further cardiac
problems; he also treated his chest pain with Celebrex and
No. 07-2631 3
cortisone shots. In June 2001, Dr. Looyenga concluded that
Mr. Getch was in good cardiac health. Early in 2002,
however, Dr. Looyenga wrote a letter to another of Mr.
Getch’s treating physicians, Dr. Daly, informing him of
Mr. Getch’s ailments and noting that Mr. Getch had been
unemployed since early 2000 because of his inability to
perform strenuous activities.
In November 2001, Mr. Getch visited Dr. Geha, the chief
of cardiothoracic surgery at the University of Illinois at
Chicago. After examining Mr. Getch and reviewing his
medical records, Dr. Geha concluded that Mr. Getch’s
sternum remained fragmented but otherwise his cardiac
health had returned to normal. Dr. Geha did not believe
that another operation would relieve Mr. Getch’s sternum
pain, and instead he recommended that Mr. Getch “switch
to a type of job that avoids extremely heavy and strenuous
activity and pulling on the upper extremities.” A.R. at 121-
22. He observed that, with “proper conditioning,”
Mr. Getch likely could return to a “reasonable level of
activity.” Id.
Despite Dr. Geha’s opinion that he might be able to
return to a job that did not involve strenuous activity, Mr.
Getch did not return to work. In December 2002, Mr. Getch
filed an application for disability benefits with the
Social Security Administration. He claimed an onset of
disability date of January 6, 2000—shortly after he frac-
tured his sternum. His application was referred to the
Disability Determination Bureau (the “state agency”).
At the request of the state agency, another physician,
Dr. Mahawar, examined Mr. Getch in January 2003.
4 No. 07-2631
Mr. Getch told Dr. Mahawar that he suffered from gout,
which causes joint swelling and pain, although the
record does not contain any prior medical evidence
supporting a gout diagnosis. Mr. Getch stated that his
gout caused him throbbing pain every other month
because he had stopped treating it with medication
after experiencing unpleasant side effects. Mr. Getch also
reported problems with recurring chest pain, but he told
Dr. Mahawar that cortisone injections prescribed by
Dr. Looyenga and a pain clinic were helping to keep the
pain in check. After examining Mr. Getch, Dr. Mahawar
reported that his chest, heart, motor strength and range
of motion were all normal, and that, although Mr. Getch
walked with a slight limp, he did not require any assis-
tance to move around. Dr. Mahawar did not observe
symptoms of gout, including joint effusion, joint redness
or soft-tissue swelling.
Two other state-agency physicians then reviewed Dr.
Mahawar’s report and Mr. Getch’s medical records. They
concluded that Mr. Getch could lift and carry 20 pounds
occasionally and 10 pounds frequently, that he could
stand or walk for 6 hours in an 8-hour work day, and that
he occasionally could balance, stoop, kneel, crouch, crawl
and climb ramps and stairs. The physicians concluded,
however, that Mr. Getch never could climb ladders, ropes
or scaffolds. They also recommended that Mr. Getch
avoid concentrated exposure to extreme heat and cold,
but they did not identify any other environmental limita-
tions.
In January 2003, Mr. Getch also met, at the request of the
state agency, with a psychologist, Dr. Walters. Mr. Getch
No. 07-2631 5
told Dr. Walters that he currently had fleeting thoughts
of suicide but had not made plans to kill himself. He stated
that he frequently felt helpless and hopeless, could not
sleep at night, suffered from anxiety and constantly
worried about the future. Despite his depression, however,
Mr. Getch reported that he was able to groom, bathe and
dress himself; that he occasionally cooked for himself; that
he was able to fold clothes and shop for groceries; that
he spent most of the day watching television, reading
the newspaper, playing video games and surfing the
internet; that he could drive; and that he helped his
children with their homework after school. Dr. Walters
diagnosed Mr. Getch with unspecified depressive disorder
and generalized anxiety disorder. Two state-agency
psychologists then reviewed Dr. Walters’ report, along
with Mr. Getch’s medical records, and concluded that his
depression and anxiety did not significantly interfere
with his ability to work.
On the basis of the state agency’s report, the Social
Security Administration denied Mr. Getch’s claim, initially
in February 2003 and on reconsideration in June 2003.
Mr. Getch timely requested a hearing before an ALJ.
Throughout 2003, primary-care physician Dr. Daly and
cardiologist Dr. Looyenga continued to treat Mr. Getch’s
chest pain. In a November 2003 letter to Mr. Getch’s
lawyer, Dr. Daly opined that Mr. Getch was “disabled at
present” due to coronary artery disease, the sternum
fracture, gout, and situational anxiety and depression. A.R.
at 208. Dr. Looyenga also completed a Cardiac Residual
Functional Capacity Questionnaire in November 2003.
6 No. 07-2631
He observed that Mr. Getch suffered from coronary artery
disease and hypertension that caused chest pain, anginal
equivalent pain, shortness of breath and fatigue.
Dr. Looyenga discounted the possibility that Mr. Getch
was malingering and opined that his physical limitations
prevented him from holding even “low stress” jobs or
completing simple work tasks. He stated that Mr. Getch
could walk only one city block without rest or severe
pain, could stand fewer than 2 hours and sit for no more
than 4 hours during an 8-hour work day, could never
lift anything heavier than 10 pounds and rarely anything
weighing less than 10 pounds, and never could twist,
stoop, crouch or climb. Dr. Looyenga left blank the form’s
questions regarding potential environmental restrictions.
B.
1.
At a hearing before an ALJ in August 2004, Mr. Getch
testified that he continued to experience chest pain, which
caused shortness of breath and prevented him from
sleeping. He also stated that his gout caused foot and
joint swelling so severe that sometimes he could not walk.
Mr. Getch stated that his health problems had made him
so depressed that he ate to the point of obesity.
Mr. Getch also testified regarding his work history.
Before he fractured his sternum, he had worked as a seam
welder for a company that makes cable for antennas and
cellular-phone towers. Mr. Getch stated that he did not
perform the welding himself; instead, he watched a video
No. 07-2631 7
monitor to assess whether a machine properly welded
pieces of cable together. He further testified that, in his
position as a seam welder, he did not have to lift or carry
more than 10 pounds, he could alternate between standing
and sitting whenever he wished, and he could sit more
than 50 percent of the work day. Mr. Getch also stated,
however, that smoke and chemical fumes inside the
plant at which he had worked often made him cough; he
also testified that the plant had no air conditioning
or heating, leading to extreme temperature variations
which exacerbated his chest pain.
Thomas Grzesik, a vocational expert, also testified at the
hearing. The ALJ asked Mr. Grzesik to consider whether
Mr. Getch could perform his previous work, assuming
that Mr. Getch could lift and carry 10 pounds frequently
and 20 pounds occasionally and that he needed to be able
to sit more than half the day. Mr. Grzesik opined that, even
given those limitations, Mr. Getch would be able to per-
form his past work as a seam welder. When the ALJ asked
whether all positions for seam welder involve exposure
to extreme temperatures or chemical fumes, Mr. Grzesik
replied: “It would depend on the process. It would depend
on the nature of the industry. . . . I would say probably
50 percent of the work would not.” A.R. at 327.
Not satisfied with the medical record, the ALJ requested
that Mr. Getch undergo a post-hearing examination by a
cardiologist. The state agency, however, selected an
internist, Dr. Rashan. Although Dr. Rashan’s objective
medical tests showed that Mr. Getch was generally healthy,
he nonetheless concluded that Mr. Getch’s gout prevented
8 No. 07-2631
him from lifting or carrying more than 10 pounds, standing
or walking more than 2 hours or sitting for more than
6 hours in an 8-hour workday, and climbing, balancing,
kneeling, crouching, crawling or stooping. Dr. Rashan
opined that Mr. Getch should avoid dust, smoke and
fumes, but he stated that extreme temperatures would not
affect Mr. Getch’s medical conditions. After the hearing,
Dr. Looyenga also sent the ALJ a letter stating that Mr.
Getch suffered from obesity, hypertension, depression,
gout, high cholesterol and arthritis, but that his cardiac
condition was significantly improved. Dr. Looyenga
estimated that Mr. Getch could lift 10 to 15 pounds.
After considering all the evidence, the ALJ concluded
that Mr. Getch was not disabled. In so finding, the ALJ
applied the five-step analysis described in 20 C.F.R.
§ 404.1520(a)(4)(i)-(v). First, he found that Mr. Getch had
not engaged in substantial gainful employment since
the onset of his alleged disability. Second, he found that
Mr. Getch’s coronary artery disease and fractured sternum
(but not his other ailments) constituted severe impairments
that limited his ability to work, but that neither was a
listed impairment and together they did not equal any
listed impairment. Third, the ALJ chose not to credit Mr.
Getch’s testimony regarding the disabling effect of his
chest pain, depression or gout because the medical record
did not corroborate his reports; he also reasoned that
Dr. Rashan’s assessment of Mr. Getch’s limitations did not
make sense, given that objective testing showed Mr. Getch
to be normal in virtually all measures. Furthermore, the
ALJ continued, Dr. Daly’s opinion that Mr. Getch was
“disabled” could not be reconciled with treatment records
and objective medical assessments.
No. 07-2631 9
At step four, the ALJ concluded that Mr. Getch retained
the residual functional capacity to perform sedentary
work, so long as he could alternate between sitting and
standing, sit for more than half the work day, and avoid
lifting or carrying objects weighing more than 20 pounds.
Even with these limitations, the ALJ concluded, Mr. Getch
could perform all of the job functions of his past relevant
work as a seam welder. Therefore, he found, Mr. Getch was
not disabled. The ALJ did not discuss whether Mr. Getch’s
past work as a seam welder presented environmental
limitations incompatible with his medical condition.
Furthermore, because the ALJ determined at step four
that Mr. Getch was able to return to his previous work as
a seam welder, he declined to discuss whether Mr. Getch
could work at other jobs in the national economy.
Mr. Getch asked the Appeals Council to reconsider the
ALJ’s decision in light of new evidence showing that his
gout symptoms had worsened in the months after the
hearing before the ALJ. This evidence included treatment
records from a new doctor, describing gout attacks that
Mr. Getch had suffered between November 2004 and
September 2005. The Appeals Council considered Mr.
Getch’s objections to the ALJ’s decision, together with the
new evidence, but it concluded that the new evidence
would not alter the ALJ’s decision and, therefore, that there
was no basis for remanding the case.
2.
In April 2006, Mr. Getch filed this action in the district
court, seeking judicial review of the ALJ’s determination
10 No. 07-2631
under 42 U.S.C. § 405(g). Mr. Getch contended that: the
ALJ erred in finding that he could resume his past relevant
work; the ALJ should have found that his gout constituted
a severe impairment; the ALJ improperly discounted the
testimony of his treating physicians; the ALJ should have
found his testimony fully credible; the ALJ failed to
consider the combined impact of his health problems; and
the Appeals Council should have reversed the ALJ’s
decision in light of his new evidence. After considering
Mr. Getch’s arguments, a magistrate judge, sitting by
consent as the district court, concluded that the ALJ’s
decision was supported by substantial evidence. He also
held that the Appeals Council did not err in refusing to
remand the case based on Mr. Getch’s new evidence.
II
DISCUSSION
A.
Because the Appeals Council denied Mr. Getch’s request
for review, the ALJ’s decision is the final decision of the
Commissioner of Social Security. See Haynes v. Barnhart, 416
F.3d 621, 626 (7th Cir. 2005). In reviewing that decision, we
are limited to examining whether it is supported by
substantial evidence. See 42 U.S.C. § 405(g); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Substantial evi-
dence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Skinner, 478 F.3d at 841 (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). The ALJ is not required to address
No. 07-2631 11
every piece of evidence or testimony presented, but he
must provide a “logical bridge” between the evidence
and his conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th
Cir. 2000).
B.
1.
Mr. Getch presents four challenges on appeal. He first
contends that, had the ALJ given adequate consideration
to the environmental conditions at his former workplace
together with his doctors’ advice to avoid those conditions,
he could not have concluded at step four that Mr. Getch
is capable of performing his past relevant work. It is not
enough, Mr. Getch suggests, that some positions for seam
welders are in hospitable environments, if the conditions
of his former employer represent the norm. Although the
claimant has the burden at step four to establish that he
cannot return to his past relevant work, the ALJ still must
make factual findings that support his conclusion. Briscoe
ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005);
Clifford, 227 F.3d at 872.
We previously have remanded to the agency where an
ALJ ruled at step four that a claimant could return to her
past work simply because that work was sedentary and
the claimant’s medical condition did not prevent her
from working at a sedentary level. See Smith v. Barnhart,
388 F.3d 251, 252 (7th Cir. 2004). In that case, the claimant
suffered from arthritis in both of her hands. Id. The ALJ
concluded that the claimant could return to her past
12 No. 07-2631
work as a tax preparer, director of a program for the
elderly, or management and information specialist because
all three jobs were defined as sedentary and, even with
arthritis, she could perform some sedentary jobs. In reach-
ing this conclusion, however, the ALJ neglected to
evaluate whether the claimant’s arthritis would prevent
her from writing and typing—skills required by the
particular type of sedentary work she had performed. Id.The ALJ’s error, which required us to remand the case, “lay
in equating [the claimant’s] past relevant work to seden-
tary work in general.” Id. Other circuits have reached
similar conclusions. See, e.g., Bowman v. Astrue, 511 F.3d
1270, 1272-73 (10th Cir. 2008) (remanding to the agency
where the ALJ did not address the impact of the claimant’s
limited use of her hand on her ability to perform her
past relevant work as cashier); Pinto v. Massanari, 249 F.3d
840, 845 (9th Cir. 2001) (holding that the ALJ should have
considered that the claimant’s past relevant work
required constant stooping and bending); Lowe v. Apfel,
226 F.3d 969, 973 (8th Cir. 2000) (remanding where the
reviewing court could not determine the factual basis
for the ALJ’s finding that the claimant could return to her
past relevant work as a laundromat manager, despite
her inability to perform repetitive hand movements).
The ALJ in this case did more than the ALJ in Smith: In
addition to evaluating whether Mr. Getch could do seden-
tary work in general, the ALJ specifically considered
whether seam welding would require Mr. Getch to lift
heavy objects, stand most of the day, and so on. The ALJ
did not determine, however, whether the job of seam
welder also would require Mr. Getch to tolerate exposure
No. 07-2631 13
to dust and extreme temperatures, factors which he
testified exacerbated his condition. The question this
case presents is whether the findings of the ALJ were
sufficient to build a “logical bridge” to the conclusion that
Mr. Getch could perform his past work, or whether the
ALJ also was required to consider expressly the impact
of the work environment on Mr. Getch.
Although the ALJ was not required “to provide a ‘com-
plete written evaluation of every piece of testimony and
evidence,’ ” Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir.
2004) (quoting Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.
1995)), he still should have considered at step four whether
Mr. Getch could return to his past relevant work, despite
the limitation that he avoid extreme temperatures and
chemical fumes. See Nolen v. Sullivan, 939 F.2d 516, 519 (7th
Cir. 1991) (requiring that the ALJ identify the duties
involved in the prior job and assess the claimant’s ability
to perform those specific tasks); see also Frantz v. Astrue, 509
F.3d 1299, 1304 (10th Cir. 2007) (remanding where the ALJ
did not specify the mental demands of the claimant’s past
work or evaluate whether the claimant could meet those
demands despite her bipolar disorder); Angel v. Barnhart,
329 F.3d 1208, 1212 (10th Cir. 2003) (remanding where the
ALJ ignored evidence suggesting that the claimant re-
quired a sterile work environment); Vincent v. Apfel, 264
F.3d 767, 769 (8th Cir. 2001) (remanding because the ALJ
did not consider whether the claimant’s schizophrenia
prevented him from coping with the mental demands of
his past work).
Had the ALJ conducted a step-five analysis to determine
whether Mr. Getch could perform other jobs in the
14 No. 07-2631
national economy, the error might be harmless. Neverthe-
less, he did not to do so here, and we cannot fill that gap.
See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005)
(requiring that ALJs, at the very least, minimally articulate
the reasons for their decisions in order to facilitate mean-
ingful appellate review); Steele v. Barnhart, 290 F.3d 936,
941 (7th Cir. 2002) (noting that the court of appeals must
confine its review to the reasons supplied by the ALJ).
We therefore must remand this case for further consider-
ation.
On remand, the ALJ should address two corollary factual
questions. First, the ALJ must determine whether the
environmental conditions under which Mr. Getch labored
are typical for seam welders or instead represent a depar-
ture from the norm. The vocational expert speculated that
“probably 50 percent” of the available jobs for seam
welders do not require exposure to chemical fumes or
extreme temperatures, A.R. at 327, but guesswork cannot
define the benchmark environment. An ALJ can base
his step-four analysis on the generally accepted job
duties of the claimant’s past work, but not every job that
bears resemblance to the claimant’s past position can be
equated with it. Smith, 388 F.3d at 253. In other words, the
ALJ need not conclude that the claimant is capable of
returning to the precise job he used to have; it is enough
that the claimant can perform jobs substantially like that
one. See Smith, 388 F.3d at 253; Wagner v. Astrue, 499 F.3d
842, 853 (8th Cir. 2007); Pinto, 249 F.3d at 844-45; see also
Social Security Ruling 82-61 (explaining that a claimant
who “cannot perform the excessive functional demands
and/or job duties actually required in the former job but
No. 07-2631 15
can perform the functional demands and job duties as
generally required by employers throughout the economy”
should not be found to be disabled). If Mr. Getch’s impair-
ments prevent him from performing his old job at his
former workplace, he might still be able to return to his
past relevant work if the typical seam-welding job does not
feature chemical fumes or temperature extremes. Never-
theless, the ALJ should have considered whether the
environmental conditions at Mr. Getch’s seam-welding
job represented an extreme or whether they are the norm
for this type of position. See Smith, 388 F.3d at 253 (noting
that the ALJ should have considered whether excessive
functional demands actually required by the claimant’s
former job were required by other jobs of that type); Pinto,
249 F.3d at 848 (remanding where the administrative
record failed to show whether the claimant could perform
past work as actually or as generally performed). To decide
this question, the ALJ must demand more than an off-the-
cuff guess.
Second, and perhaps more fundamentally, the ALJ must
decide whether Mr. Getch’s impairments in fact would
prevent him from working around chemical fumes and
extreme temperatures. On this question the record is
ambiguous. Two doctors recommended that Mr. Getch
avoid extreme temperatures, but neither identified other
environmental restrictions. On the other hand, a third
doctor concluded that temperature extremes would not
affect Mr. Getch, but that dust and fumes would. Notably,
Dr. Looyenga, Mr. Getch’s treating cardiologist, did not
identify any environmental limitations at all when asked.
As the record now stands, the ALJ conceivably could
16 No. 07-2631
conclude on remand that Mr. Getch’s impairments are not
aggravated by chemical fumes or temperature extremes
and, therefore, that he can work where either are present.
Without more evidence, however, the record is inconclu-
sive, and the extent of Mr. Getch’s environmental limita-
tions is precisely the type of contested factual issue the ALJ
should have resolved. See Angel, 329 F.3d at 1212 (remand-
ing so that the ALJ could address the evidence suggesting
that the claimant required a sterile work environment);
Nelson v. Apfel, 210 F.3d 799, 803 (7th Cir. 2000) (remanding
so that the ALJ could resolve factual conflicts in the
record).
2.
Mr. Getch next contends that the ALJ failed to give
sufficient weight to the combined impact of his health
problems. Mr. Getch correctly observes that an ALJ is
required to consider the aggregate effects of a claimant’s
impairments, including impairments that, in isolation, are
not severe. See 20 C.F.R. § 404.1523; Golembiewski v.
Barnhart, 322 F.3d 912, 918 (7th Cir. 2003). Nonetheless, the
ALJ in fact did consider Mr. Getch’s health problems in
the aggregate, ruling that his impairments were not severe
enough, “either singly or in combination,” to equal one
of the listed impairments. A.R. at 14. In making his assess-
ment, the ALJ also stated that he had considered all of
Mr. Getch’s symptoms together, along with the objective
medical evidence. Accordingly, Mr. Getch’s objection fails.
No. 07-2631 17
3.
Third, Mr. Getch contests the ALJ’s finding that his
testimony was not fully credible. We defer to an ALJ’s
credibility determination and shall overturn it only if it
is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006). Reviewing courts therefore should rarely
disturb an ALJ’s credibility determination, unless that
finding is unreasonable or unsupported. See Sims v.
Barnhart, 442 F.3d 536, 538 (7th Cir. 2006). Mr. Getch
quibbles with the ALJ’s characterization of his gout
complaints, but an ALJ may disregard a claimant’s asser-
tions of pain if he validly finds them not credible. Schmidt
v. Astrue, 496 F.3d 833, 843-44 (7th Cir. 2007). Moreover,
although an ALJ may not ignore a claimant’s subjective
reports of pain simply because they are not fully
supported by objective medical evidence, discrepancies
between objective evidence and self-reports may suggest
symptom exaggeration. Sienkiewicz v. Barnhart, 409 F.3d
798, 804 (7th Cir. 2005); Powers v. Apfel, 207 F.3d 431, 435-36
(7th Cir. 2000). Here, the ALJ observed that, although
Mr. Getch alleged episodes of gout and had taken medica-
tion to treat gout symptoms, there was “no description by
a physician of an actual gout flare-up in the record.” A.R.
at 14. The ALJ reasonably discounted Mr. Getch’s testi-
mony given the discrepancy between his reports of dis-
abling gout and medical reports documenting Mr. Getch’s
normal range of motion, ability to walk and stand without
significant limitation, and absence of joint swelling or
other gout symptoms. It therefore was not patently wrong
for the ALJ to conclude that, although Mr. Getch’s impair-
ments were real, he had exaggerated their impact on his
18 No. 07-2631
ability to work. See Schmidt, 496 F.3d at 843-44 (holding that
the ALJ did not err in discounting a claimant’s reports of
pain where they were not supported by the medical
record); Sienkiewicz, 409 F.3d at 804 (same).
4.
Finally, Mr. Getch contends that the Appeals Council
erred in declining to remand his case to the ALJ in light of
new evidence documenting his gout treatment between
November 2004 and September 2005. The Appeals Council
will review a case if the claimant submits “new and
material evidence” that, in addition to the evidence already
considered by the ALJ, makes the ALJ’s decision “contrary
to the weight of the evidence” in the record. 20 C.F.R.
§ 404.970(b); see also Schmidt, 395 F.3d at 742; Kapusta v.
Sullivan, 900 F.2d 94, 97 (7th Cir. 1990). We evaluate de
novo whether the Appeals Council made an error of law in
applying this regulation; absent legal error, however, the
Council’s decision whether to review is “discretionary and
unreviewable.” Perkins v. Chater, 107 F.3d 1290, 1294 (7th
Cir. 1997).
Mr. Getch contends that the Appeals Council concluded
that his new evidence was not material and thus refused to
consider it; that conclusion, he says, constituted a mistake
of law that is reviewable by this court. Contrary to Mr.
Getch’s assertions, however, the Appeals Council did
review his new evidence and decided that it did not
provide a basis for changing the ALJ’s decision. Medical
evidence postdating the ALJ’s decision, unless it speaks
to the patient’s condition at or before the time of the
No. 07-2631 19
administrative hearing, could not have affected the ALJ’s
decision and therefore does not meet the materiality
requirement. See 20 C.F.R. 404.970(b) (“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.”); Schmidt, 395 F.3d at 742 (noting that
“evidence is material only to the extent that it could have
affected the outcome of the ALJ’s decision,” and declining
to consider medical records documenting the claimant’s
medical condition as it existed after the decision was
rendered); Kapusta, 900 F.2d at 97 (refusing to consider
medical evidence that postdated the ALJ’s decision because
“the reports postdating the hearing speak only to [the
claimant’s] current condition, not to his condition at the
time his application was under consideration by the
Social Security Administration”). None of the new evi-
dence proffered by Mr. Getch speaks to his condition at the
relevant time period; it pertains only to his allegedly
worsening condition in 2004 and 2005—well after the ALJ
rendered his decision. If Mr. Getch has developed addi-
tional impairments, or his impairments have worsened,
since his first application for benefits, he may submit a
new application. See Kapusta, 900 F.2d at 97. Where the
Appeals Council considers the new evidence along with
the rest of the record and declines to remand because
there is nothing before it that undermines the ALJ’s
decision, we shall not review the Council’s discretionary
decision. Perkins, 107 F.3d at 1294.
20 No. 07-2631
Conclusion
We conclude that the ALJ failed to consider adequately
the impact of Mr. Getch’s workplace environment on his
ability to return to his past relevant work as a seam welder.
Accordingly, the judgment of the district court is reversed,
and this case is remanded to the agency for further pro-
ceedings consistent with this opinion.
R EVERSED and R EMANDED
8-13-08