Taylor, Leonard I. v. Barnhart, Jo Anne B. , 150 F. App'x 558 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 28, 2005*
Decided September 28, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1710
Appeal from the United States
LEONARD I. TAYLOR, District Court for the Northern
Plaintiff-Appellant, District of Illinois, Eastern Division
v. No. 04 C 3136
JO ANNE B. BARNHART, Amy J. St. Eve,
Defendant-Appellee. Judge.
ORDER
Leonard Taylor appeals from an order of the district court upholding the
calculation by the Commissioner of Social Security of his monthly retirement
insurance benefit. Because the Commissioner’s decision is based on substantial
evidence, we affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1710 Page 2
The Social Security Administration approved Taylor’s application for
retirement insurance benefits, but he requested recalculation of the monthly
amount on the belief that it is based on an understated record of his lifetime
earnings. When the agency stood by its calculation, Taylor sought review before an
Administrative Law Judge. As relevant here, Taylor testified before the ALJ that
the agency’s record of his prior earnings omits wages received in 1981 from
Children’s Home and Aid Society of Illinois (“Children’s Home”). Taylor produced a
letter from Children’s Home verifying his employment from February 18 through
October 12, 1981, but he presented no evidence that during this period he earned
more from Children’s Home than the $5,717 already credited to the agency’s record
of his earnings. Taylor conceded that without additional earnings his monthly
benefit was correctly calculated, and having been presented with no such evidence,
the ALJ upheld the agency’s benefit determination.
Taylor then sought review by the Appeals Council and submitted two
additional letters from Children’s Home verifying that his salary was $708 per
month during his employment, but still not showing total earnings greater than
$5,717. The Appeals Council denied review, explaining that the letters supported
the ALJ’s decision because earnings of $708 per month from February 18 through
October 12, 1981, corresponds to the $5,717 in 1981 wages from Children’s Home
already credited to his earnings record.
Taylor next turned to the district court and sought judicial review under 42
U.S.C. § 405(g). In response to the Commissioner’s motion for summary judgment,
Taylor again submitted new evidence, including copies of two Forms W-2, one
undated from Children’s Home showing $5,717 in earnings and one from Garden
Specialties, Inc., showing $6,464 in earnings in 1978. The district court noted that
Taylor’s submissions were not a part of the administrative record but, regardless,
only served to bolster the Commissioner’s decision because both match information
included already by the agency in his earnings record.
Like the district court we review the final decision of the Commissioner,
White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992), and where, as here, the
Appeals Council has declined to review the ALJ’s decision, the ALJ’s decision is the
final decision of the Commissioner, Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir.
2005). We defer to the ALJ’s findings if supported by substantial evidence. Boiles
v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation
omitted). In this case the ALJ considered, among other things, Taylor’s failure to
present evidence contradicting the agency’s record of his earnings and his
concession that without any additional income in his earnings record the
Commissioner’s calculation of his retirement benefit was correct. Substantial
No. 05-1710 Page 3
evidence therefore supports the ALJ’s conclusion that Taylor’s retirement benefit is
correctly calculated.
Taylor, though, appears to argue that we should order a remand so the
Commissioner may consider documents submitted to the district court as well as
allegations in his appellate brief about other earnings that he says are not included
in the agency’s record. But remand for consideration of additional evidence is
appropriate only upon a showing that there exists “new evidence which is material
and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.” 42 U.S.C. § 405(g); Perkins v. Chater, 107 F.3d 1290,
1296 (7th Cir. 1997). The information in the Forms W-2 that Taylor provided to the
district court is already included in the agency’s record of his earnings; the forms
support rather than undermine the Commissioner’s decision. See Jens v. Barnhart,
347 F.3d 209, 214 (7th Cir. 2003) (declining to direct remand for ALJ to evaluate
written documentation of claimant’s job description since ALJ had already
considered claimant’s testimony regarding duties of that position). And to the
extent that Taylor asserts, for the first time on appeal, that the agency incorrectly
credited wages from employers other than those mentioned to the ALJ or district
court, the information concerns past employment and cannot be characterized as
“new.” See Schmidt v. Barnhart, 395 F.3d 737, 742-43 (7th Cir. 2005) (explaining
information in existence or available to claimant at time of administrative
proceeding is not new). Therefore, Taylor is not entitled to remand under § 405(g).
AFFIRMED.