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Social Security – Disability Benefits – ‘New’ Evidence

Deborah Elkins//May 27, 2010

Social Security – Disability Benefits – ‘New’ Evidence

Deborah Elkins//May 27, 2010//

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A Big Stone Gap U.S. District Court upholds a denial of social security disability benefits to a woman who formerly worked as a registered nurse, as the “new evidence” cited by claimant does not make any new findings or diagnoses.

Claimant argues the ALJ failed to fully consider findings of state agency neurologist Dr. Jack Scariano Jr., who conducted the neurological consultative exam. However, the ALJ discussed the doctor’s findings in her decision and adequately explained why some of his findings were given limited weight.

Dr. Scariano was consulted specifically to determine what limitations, if any, existed in claimant’s ability to use her arms or hands. The ALJ noted his objective findings were at odds with some of his conclusions. On one hand, Dr. Scariano performed an EMG/nerve conduction study on claimant’s upper extremities and the results were normal. He found claimant was able to carry small objects and sort, handle and use paper/files.

On the other hand, Dr. Scariano opined that claimant was unable to perform gainful employment. The ALJ rejected this finding because it was not consistent with objective physical findings of Dr. Scariano or with the form he completed of claimant’s physical capabilities. That form considered as a whole indicated claimant could perform sedentary work. The ALJ also rejected Dr. Scariano’s conclusion because only the commissioner has the authority to determine whether or not a person is able to attain substantial gainful employment. I find the ALJ did fully consider and evaluate Dr. Scariano’s report.

Claimant next argues the Appeals Council erred because it failed to give any reason for its finding that the newly submitted records from Dr. Nelson did not justify further administrative action. The Council is not expressly required by regs to state its rationale for denying review.

Finally, the court rejects claimant’s argument that Dr. Nelson’s latest records warrant a remand because they are new and material, and relate to the appropriate time period.

This court needs to carefully balance its duty to review the entire record with its obligations to abstain from making factual determinations. Previous courts have navigated this fine line by limiting the analysis of the additional evidence, focusing the inquiry on the narrow question of whether the new evidence is contradictory, presents material competing testimony or calls into doubt any decision grounded in the prior medical reports.

I find that Dr. Nelson’s records from February to June 2008 make no new findings or diagnoses. He treated claimant over a lengthy period of time and he did not indicate her health had deteriorated or otherwise changed since his previous examinations. All his objective findings are consistent with those he and other physicians made previously. This evidence does not contradict or call into doubt previous medical findings and thus does not require a remand for further consideration. I find the ALJ’s decision is supported by substantial evidence.

Denial of benefits affirmed.

Horn v. Astrue (Jones, J.) (Published) No. 2:09cv00044, May 18, 2010; USDC at Big Stone Gap, Va.; Joseph E. Wolfe for plaintiff; Eric P. Kressman for SSA. VLW 010-3-263, 10 pp.

VLW 010-3-263

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