Easley v. Kijakazi

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opinion should not be published and is not precedent except under the limited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.
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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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