CHARLES BLEIL, Magistrate Judge
This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. STATEMENT OF THE CASE
Plaintiff Christine M. Kelsey brings this action pursuant to Section 405(g) of the Social Security Act, Title 42 of the United States Code, for judicial review of a final decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits under Title II of the Social Security Act. Kelsey applied for benefits on August 15, 2000, and alleges she has been disabled since January 1999. (Tr. 26, 77). She last met the insured status requirements on September 30, 2000. (Tr. 75).
The Social Security Administration denied Kelsey's application for benefits both initially and on reconsideration. Kelsey requested a hearing before an administrative law judge (the" ALJ"), and ALJ Randolph D. Mason held a hearing on March 14, 2002 in Fort Worth, Texas. (Tr. 462). Kelsey was represented by counsel. On April 5, 2002, the ALJ issued an unfavorable decision, finding that Kelsey was not disabled because she had the residual functional capacity (RFC) to perform a modified range of work not exceeding a sedentary level of exertion. (Tr. 20-27). The Appeals Council denied Kelsey's request for review of her case, leaving the ALJ's decision to stand as the final decision of the Commissioner. (Tr. 4).
Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. 20 C.F.R. § 404.1567(a), 416.967(a).
B. STANDARD OF REVIEW
The Social Security Act defines a disability as a medically determinable physical or mental impairment lasting at least twelve months that prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step analysis is employed. 20 C.F.R. § 404.1520. First, the claimant must not be presently working at any substantial gainful activity. Substantial gainful activity is defined as work activity involving the use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1527. Second, the claimant must have an impairment or combination of impairments that is severe. An impairment or combination of impairments is severe if it significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). At the third step, disability will be found if claimant's impairment or combination of impairments meets or equals an impairment listed in the appendix to the regulations. Id. § 404.1520(d). Fourth, if disability cannot be found on the basis of claimant's medical status alone, the impairment or impairments must prevent the claimant from returning to his past relevant work. Id. § 404.1520(e). And fifth, the impairment must prevent the claimant from doing any work, considering the claimant's residual functional capacity, age, education, and past work experience. Id. § 404.1520(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999).
At steps one through four, the burden of proof rests upon the claimant to show he is disabled. If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the process to show that there is other gainful employment the claimant is capable of performing in spite of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002).
A denial of disability benefits is reviewed only to determine whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision. Id. Conflicts in the evidence are for the Commissioner and not the court to resolve. Master son, 309 F.3d at 272. The court will not re-weigh the evidence, try the questions de novo, or substitute its judgment for the Commissioner's, even if the court believes the evidence weighs against the Commissioner's decision. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383.
C. ISSUES
1. Whether the ALJ gave appropriate weight to treating source opinions.
2. Whether the ALJ erred in finding Kelsey's mental impairment was not severe.
3. Whether there is new and material evidence warranting a remand for further administrative consideration.
D. ADMINISTRATIVE RECORD
1. Medical History
Kelsey had two cervical surgeries and one surgery on her lumbar spine in the early 1990s, and underwent surgery on her left shoulder in 1993. (Tr. 108-09, 413). In addition, Kelsey was hospitalized for a week in 1995 for bipolar disorder, and an adjustment disorder with mixed emotional features. (Tr. 130-61). She was discharged with a Global Assessment of Functioning score of 40 and a good prognosis with continued outpatient treatment. Despite her surgeries and hospitalizations, Kelsey continued to work until January 1999.
In November 1998, Kelsey saw physician Hai Van Pham for complaints of low back and shoulder pain after she stacked heavy loads at work. Vicodin had not helped her pain, and new prescriptions were given. (Tr. 266). Kelsey saw Pham again the following week and requested refills of her pain medications. Tenderness and muscles spasms were noted over her low back, but straight leg raising was negative. (Tr. 266). Motor strength was 5/5, and sensation was intact to touch. (Tr. 266). X-rays taken November 20, 1998 showed mild narrowing of the L5 disc space, and moderate degenerative changes of the lower lumbar facets. (Tr. 292). On January 5, 1999, Kelsey returned with continued complaints of back pain. Pham diagnosed chronic low back pain, gave Kelsey a letter for her employer, and instructed her to stay off of work. (Tr. 265).
Beginning in early 1999, Kelsey sought treatment from physician Beatriz Parra. (Tr. 211-85). She complained of back and neck pain, shoulder pain, and problems with asthma and allergies. She had not returned to work since January because she felt unable to handle a job. Sitting, standing and any lifting aggravated the pain, and her medications were not helping. (Tr. 238). Parra made several adjustments to Kelsey's medications and advised her to stop smoking.
Kelsey also had a gastroenterology consult on February 15, 1999 because she was having progressively worse abdominal pain and bloating. (Tr. 253). She appeared miserable during the examination. She was tearful, emotionally labile, and stressed. Her gastroenterologist ordered additional testing, but diagnosed probable irritable bowel syndrome and thought that a concurrent depression was a significant contributor to Kelsey's symptoms. If further testing was normal, he recommended that Kelsey undergo a mental health evaluation and consider using anti-depressants. (Tr. 254).
A bone mineral density test performed April 26, 1999 showed mild osteoporosis in Kelsey's lumbar spine. (Tr. 284). Shoulder x-rays taken on June 15, 1999 showed minimal degenerative hypertrophic changes on the right, and chronic separation of the left shoulder with apparent old erosion of the left distal clavicle. (Tr. 282).
Kelsey's progress notes with Parra document consistent complaints of chronic low back and neck pain that had worsened in the past year and a half. (Tr. 211-26). Kelsey complained of severe aching and throbbing, especially in her low back and right leg, with tingling in her feet and thigh-especially at night. (Tr. 216). Kelsey also had a history of significant gastrointestinal complaints. (Tr. 216). Parra wrote a letter on Kelsey's behalf on August 9, 2000, noting that her patient had a failed back syndrome with chronic pain. (Tr. 213). Parra considered Kelsey's potential for rehabilitation to be poor, and had referred Kelsey for neurological evaluation with physician Geeta Rajan. (Tr. 213).
Rajan ordered additional diagnostic tests. Magnetic resonance imaging (an MRI) of Kelsey's lumbar spine on September 8, 2000 showed mild degenerative dessication at L4-L5 and L5-S1, with evidence of previous surgery at those sites. (Tr. 314). Alignment of the spine was normal, and vertebral body heights and disc spaces were well maintained. There was a thickened first sacral nerve roots bilaterally, more on the right, and an incidental mild central annular bulge at L5-S1 without canal stenosis or foraminal compromise. (Tr. 314). Rajan recommended physical therapy, but Kelsey was unable to afford the insurance co-payment for therapy. (Tr. 212, 313).
The state agency medical consultants who initially considered Kelsey's physical impairments found her capable of lifting twenty pounds occasionally, and sitting or standing for up to six hours per workday, (Tr. 162-69). Her complaints were deemed partially credible. The state agency medical consultants who reviewed Kelsey's mental impairment initially and on reconsideration in 2000 found the evidence before them was insufficient to allow for a medical determination of Kelsey's disability before her insured status expired. (Tr. 207). Another state agency physician evaluated Kelsey's history of diverticulitis, but stated that no determination of disability was possible because the available information was not sufficient. (Tr. 209).
Kelsey moved her care to the Green Oaks Clinic in 2001 with physicians Jennifer Speaker and Cynthia McNeely. After an initial examination on January 19, 2001, Kelsey was given mediation and a referral to a pain management clinic. (Tr. 401).
Kelsey failed to improve. On March 13, 2001, Kelsey was crying and reported extreme back pain. (Tr. 391). She was given a prescription for Prozac, and was referred to another pain management evaluation with physician Ashley Classen. Kelsey saw Classen on April 2, 2001. (Tr. 452). Kelsey complained of no quality of life due to depression and intractable pain. She had decreased range of motion in her cervical and lumbar spine. No gross sensory or motor deficit was noted, and Kelsey was able to move about with relative ease, but exhibited an antalgic gait. (Tr. 454). Classen ordered a cervical epidurogram and caudal epidurogram, with injection of an opiod local anesthetic and steroid, but they provided no relief. (Tr. 443-45, 451).
In April 2001, Kelsey reported headaches that were so severe she could not see. Kelsey has been blind in her right eye since childhood, (Tr. 388, 459), but vision screening indicated her vision was 20/20 in her left eye. It was thought that her complaints of vision loss were psychosomatic. (Tr. 388).
On July 11, 2001, Classen tried to place an opiod catheter to deliver pain medication and assess the possibility of implanting an internal morphine pump, but Kelsey developed significant side effects, including nausea and vomiting and the catheter was removed. (Tr. 446-47). Postoperative diagnoses included persistent intractable cervical and lumbar polyneuropathy; severe persistent cervicogenic headache; postlaminectomy and post fusion neuropathic pain syndrome; failed surgical back syndrome; arachnoiditis; osteoporosis; and failed conservative management. (Tr. 448). Classen referred Kelsey back to the Green Oaks clinic in August 2001 because she had no further therapy to offer her other than the indefinite use of oral opiods. (Tr. 451).
Neuropathy refers to a functional disturbance or pathological change in the peripheral nervous system. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1212 (29th ed. 2000). Polyneuropathy is neuropathy of several peripheral nerves simultaneously. Id. at 1432.
Arachnoiditis is inflammation of the arachnoidea. The spinal arachnoidea is a delicate membrane covering the spinal cord. Id. at 120.
Kelsey saw physician Krishnababu Chunduri for neurological evaluation on June 22, 2001. Kelsey complained of significant neck pain that radiated into both shoulders and her left arm, and significant low back pain that sometime radiated into the lower extremities, especially her right lower extremity, with tingling and numbness. (Tr. 407, 413). A general physical examination was normal. Chunduri observed no focal muscle wasting, and Kelsey had good strength in all muscle groups. Sensation was unremarkable, and Kelsey had a natural gait. (Tr. 414). Chunduri ordered MRI scans of Kelsey's cervical and lumbar spines, which were performed June 29, 2001. The cervical MRI was unremarkable, while the MRI of Kelsey's lumbar spine showed abroad-based disc protrusion at L5-S1, but was otherwise unremarkable. (Tr. 407, 409-12). Chunduri also ordered an electromyography (EMG) and nerve conduction velocity study, which was performed July 26, 2001. The study was normal, with no evidence of cervical or lumbar radiculopathy, nerve entrapment syndrome, peripheral neuropathy or primary muscle disease. (Tr. 407). Chunduri was unsure of the etiology of Kelsey's chronic neck and low back pain, but recommended a new pain medication and a referral back to the pain clinic if her medications continued to provide no relief. (Tr. 403).
Speaker sent Kelsey for updated MRI studies in February 2002. The MRI of Kelsey' s lumbar spine showed narrowing of the left lateral recess at L4-L5, which could be attributable to a synovial cyst or an extruded disc fragment; evidence of previous surgery at L4-L4 and L5-S1, without evidence of recurrent or residual disc herniation; epidural scar formation within the right SI lateral recess; moderate L5 neural foraminal narrowing due to endplate spur and disc bulging; and a small annular tear at L4-L5. (Tr. 439-40). The cervical MRI showed the C5-C6 fusion without evidence of failure, and very mild posterior endplate spur formation at C4-C5 and C6-C7 without visible neural impingement. (Tr. 441-42). Myelograms were suggested to investigate whether there was any subtle nerve root impingement.
Myelograms and post myelogram computed tomography (CT) scans of Kelsey's cervical and lumbar spines were performed in March 2002. There was decreased filling of the C7 root sleeves without accompanying disc herniation; decreased filling of the left S1 root sleeves without obvious accompanying disc herniation; and a mild annular bulge of the L4-L5 disc without herniation. (Tr. 456).
2. Administrative Hearing
Kelsey was born April 4, 1954. She completed the tenth grade in school, but later obtained her GED. Kelsey stopped working in January 1999. (Tr. 464-65). She has work experience as a department store sales associate, and as a stock clerk with General Dynamics. She has also worked as a home health aide, and obtained her certification as a nurse's aide. (Tr. 468).
Kelsey testified that she was taking Celex for depression. She complained that her upper body was always tight, and she had headaches constantly, while her low back problems made her legs numb. She rated her average pain level as a seven or eight on a scale often (with ten being the worst pain). Her medications lowered her pain to a level of five or six. (Tr. 470). She was currently using Vicodin four times a day, and wore a Duragesic patch on her leg. She testified that her medications made her sleepy and upset her stomach. Kelsey took Phenergan for nausea. Her physician had tried to insert a pain catheter in her back the previous summer, but it made her ill and had to be removed. (Tr. 471).
Kelsey lived with her adult daughter. Kelsey was able to drive, but her daughter did most of the shopping. Kelsey was able to do some housework and laundry, but did not clean the floors and could not scrub the bathtub. (Tr. 473). Her daughter did most of the cooking. Kelsey had no hobbies. She watched an hour or two of television a day, but it tended to make her headaches worse. In addition, focusing on the television or reading materials bothered her left eye, and also made her headaches worse. (Tr. 474, 477).
Kelsey estimated that she could walk for about twenty minutes and sit for about half an hour before she needed to change positions. She also testified that she must lay down several times a day to alleviate the pain and discomfort. (Tr. 474-75, 480). Her left shoulder still hurt despite having surgery on it, and she had decided not to have the same surgery on her right shoulder because the surgery was too painful and had not helped. (Tr. 475-76). She testified that she would be unable to do any work that required her to use her shoulders or arms repeatedly or over her head. Kelsey also had asthma and allergies. (Tr. 478).
Vocational expert Barbara Dunlap testified that Kelsey's work as a retail sales associate was semi-skilled and light or medium work activity; her work as a stock clerk was a job that required heavy exertion according to the Dictionary of Occupational Titles: and a home health aide is a semiskilled work that can require medium or heavy exertion. (Tr. 482-83). The ALJ asked Dunlap to consider the following hypothetical:
Assume an individual at the time in question, with a high school equivalent education, the past work, as you have described, and at the time in question, 44 years of age, and let's assume this hypothetical person is only capable of sedentary work, needing frequent opportunities to sit or stand, no excessive dust, fumes or other lung irritants and no overhead work. Would there be any other work in the national economy? First, to which the skills would transfer?
(Tr. 484). Dunlap testified that the sales clerk and stocking positions would provide transferable skills to work as a sedentary check cashier, with 3,000-5,000 jobs available in Texas and 60,000 to 80,000 available nationally. There were also semi-skilled jobs as an appointment clerk, receptionist, or information clerk, with 5,000-6,000 such jobs in Texas and 80,000-100,000 jobs nationally. Dunlap noted that there were also suitable unskilled positions as a small parts assembler, telemarketer, or sorter/inspector. (Tr. 484).
Dunlap testified that the jobs she had identified would require that the worker be able to read printed matter, but would not exclude a person who had vision in only one eye. (Tr. 486). The jobs also required handling and fingering, but did not require extended reaching except for work as a sorter/inspector. (Tr. 487-88). All of the jobs did require repetitive use of the hands and fingers, and a person who was unable to use their hands and fingers for a task in front of them could not perform the jobs Dunlap had identified, nor could a person who needed to lie down several times a day for an hour or more. (Tr. 487).
3. ALJ Decision
The ALJ found that Kelsey had not engaged in substantial gainful activity since her alleged onset date and that her insured status had expired on September 30, 2000. The ALJ further found that Kelsey's back disorder and neck disorder constituted severe impairments, but did not meet or medically equal the criteria of any listed impairment. Kelsey instead retained the residual functional capacity for sedentary work with the option of sitting or standing, but she needed to avoid lung irritants and overhead work. (Tr. 26). The ALJ reviewed Kelsey's mental health history, but found only mild restriction in Kelsey's daily activities and social functioning, mild concentration deficiencies, and no episodes of decompensation. He concurred with the opinion that Kelsey's functional mental limitations were essentially non-severe. (Tr. 24). Based on the vocational expert testimony, the ALJ found that Kelsey was capable of performing work existing in significant numbers in the regional and national economies, and therefore, was not disabled.
E. DISCUSSION
1. Treating Physician Opinions
Kelsey contends that the ALJ did not assign appropriate weight to the opinions of her treating physicians.
The opinions, diagnoses, and medical evidence of a treating physician who is familiar with the claimant's impairments, treatments and responses, should be given great weight in determining disability. See Leggett v. Chafer, 67 F.3d 558, 566 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). The Commissioner assigns controlling weight to the opinion of a treating physician if well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527; Martinez v. Chafer, 64 F.3d 172, 176 (5th Cir. 1995). The determination of disability always remains the province of the ALJ, and the ALJ can decrease the weight assigned to a treating physician's opinion for good cause, which includes disregarding statements that are brief and conclusory, unsupported by acceptable diagnostic techniques, or otherwise unsupported by the evidence. See id § 404.1527(e); Leggett, 67 F.3d at 564; Greenspan, 38 F.3d at 237.
Before rejecting a treating source opinion, the ALJ must consider the factors outlined in Section 404.1527(d) of the Administration's administrative regulations, including: the length of the treatment relationship, frequency of examination, nature and extent of the treating relationship, evidence supporting the opinions, the consistency of those opinions, and medical specialization. See 20 C.F.R. § 404.1527; Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). See also SOCIAL SECURITY RULING 96-2p, 96-5p. Even if a treating source opinion is not entitled to controlling weight under the regulations, that does not mean the opinion should be completely rejected. In many cases, the opinion may be entitled to the greatest weight and should be adopted even if it does not satisfy the test for controlling weight. SOCIAL SECURITY RULING 96-2p.
Kelsey asserts that the opinion of treating physician Beatriz Parra was entitled to great weight, but without foundation, the ALJ assigned the opinion no weight. Parra wrote a letter in August 2000 in which she stated that Kelsey suffered from failed back syndrome and was a poor candidate for rehabilitation or a return to work. The ALJ, however, found that Parra provided no diagnostic evidence that would support this assessment. (Tr. 22).
Kelsey criticizes the ALJ's reasoning, and notes that there are numerous progress reports documenting her treatment history with Parra. However, the objective tests performed in 1999 and 2000 yielded relatively minimal findings. The ALJ also noted that another examining physician, Chunduri, had been unable to pinpoint the etiology of Kelsey's complaints of chronic and severe pain in her neck and low back.
Kelsey criticizes the ALJ for stating that Chunduri found "no etiology," when Chunduri's exact words were that he was "not sure of the etiology." (Tr. 23, 407). There is no rule that prohibits the ALJ from paraphrasing the opinions found in the medical reports, nor does the ALJ's choice of words indicate that the ALJ was under any misunderstanding about the relatively minimal findings in the diagnostic studies Chunduri had ordered, which had failed to reveal the cause or causes of Kelsey's symptoms.
Kelsey also complains of the ALJ's failure to adopt the opinions offered by physician Jennifer Speaker, who began treating Kelsey in January 2001 and referred her to pain management specialists because of her reports of severe and chronic pain. Kelsey's insured status, however, expired in September 2000, and Speaker's opinions about Kelsey's condition after that date are not relevant. Moreover, the ALJ addressed the later medical records and the new diagnostic studies performed in 2002 that showed evidence of narrowing at the left L5 lateral recess, but no evidence of stenosis or herniation.
The ALJ did not deny that Kelsey was in pain, but also noted that not all pain is disabling or incompatible with certain levels of work activity. (Tr. 24). See, e.g., Rodriguez v. Bowen, 857 F.2d 275, 278 (5th Cir. 1988). It is within the discretion of the ALJ to determine the disabling nature of a claimant's pain, and his findings on this issue are afforded considerable deference. See id. at 279; Jones v. Heckler, 702 F.2d 616, 621-22 (5th Cir. 1983). The ALJ noted that the diagnostic evidence was negative for stenosis and herniation, and only mild osteoporosis was seen in bone density tests. Kelsey has not demonstrated that the ALJ erred in assessing the degree of limitation imposed by her pain, or in rejecting treating source opinions that Kelsey was disabled as that term is used in the Social Security Act.
2. Mental Impairment
Kelsey complains of the ALJ's failure to give proper consideration to her mental impairment in making his decision. The ALJ acknowledged that Kelsey had a history of depression, but determined that her mental impairment was essentially non-severe, having caused only mild restriction in Kelsey's daily activities and social functioning, mild deficiencies in concentration, and no episodes of deterioration or decompensation. (Tr. 24).
Kelsey asserts that the ALJ relied on a selective view of the record and flimsy reasoning in finding her mental impairment was not severe. She contends that there is evidence that she complained of vision loss that her doctor thought was "psychosomatic" because her vision tested as 20/20, and that this incident should have been considered in the evaluation of her mental impairment. Kelsey also notes that her gastroenterologist suggested that her gastric problems could be aggravated by her mental state, but the ALJ did not address this evidence either.
The ALJ mentioned this report in his decision, but also noted that during this same visit Kelsey reported an improvement in her mood. (Tr. 388). Moreover, this incident occurred in April 2001. Her insured status expired in September 2000.
The ALJ noted that Kelsey's medical records occasionally mentioned depression, but she had not reported depression to her treating physicians as a contributing factor in her disability or testified about her depression. In answer to the ALJ's questions, Kelsey testified that she was taking an anti-depressant, but gave no detailed testimony about her depression or how it affected her on a functional level. Instead, she is relying on evidence of a hospitalization four years before her alleged onset date. According to the medical records, Kelsey stopped working due to pain, not because a mental impairment interfered with her work.
Kelsey also asserts that the ALJ misrepresented the record and reported that he was concurring with the state agency physicians in finding Kelsey's depression was not severe, when in fact, the state agency physicians found there was insufficient information on which to make a decision about Kelsey's mental impairment. To the extent the ALJ has misstated the reports of the state agency consultants, Kelsey has shown no harm as a result and has not provided evidence that her mental impairment during the 1999-2000 time period caused more than the mild functional restrictions that the ALJ found.
3. New Evidence
Kelsey asserts that her case must be reversed and remanded for the consideration of new and material evidence she has appended to her brief. She attaches thirty-three pages of medical records analyzing her complaints of pain after the time of the ALJ's decision, including a letter from treating physician Jennifer Speaker dated October 18, 2002 in which Speaker opined that Kelsey suffered from severe degenerative disc disease that had been present for over two years and required sedating medications and frequent rest periods. (App. at 12). Any significant improvement was considered doubtful. The new records also indicate that Kelsey had additional surgery on her low back in the Spring of 2003. (App. at 1).
No surgical report is included in the appendix, but follow-up visits with her treating physicians at the Green Oaks Clinic indicate that Kelsey continued to have back pain. (App. at 1).
The court will remand an action upon a showing that there is new evidence that is material and there is good cause for the failure to produce the evidence in the earlier proceedings. 42 U.S.C. § 405(g); Ripley v. Chafer, 67 F.3d 552, 555 (5th Cir. 1995); Leggett v. Chater, 67 F.3d 558, 567 (5th Cir. 1995). New evidence is material if it relates to the time period during which the disability benefits were denied and there is a reasonable probability that this new evidence would change the outcome of the administrative proceedings. Ripley, 67 F.3d at 555. Merely because evidence is of recent origin does not constitute good cause for a remand. Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987). The reviewing court may not remand a case for consideration of new evidence showing only the subsequent deterioration of a previously non-disabling condition. Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985).
The new evidence Kelsey presents, particularly the records from her new surgeon, pertain to events occurring two or more years after the expiration of her insured status. Although Speaker has asserted that Kelsey's degenerative disease existed even during the period predating the expiration of her insured status, Speaker did not begin treating Kelsey until after her insured status expired. Moreover, evidence of mild to moderate degenerative changes in Kelsey's spine was already seen in the diagnostic studies performed before Kelsey's insured status expired, and those studies are part of the administrative record before the ALJ. Remand is not warranted because Kelsey is seeking administrative consideration of records that are either cumulative of information already before the ALJ or that reflect her medical condition well after the date her insured status expired in September 2000.
RECOMMENDATION
It is recommended that the decision of the Commissioner be affirmed.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until December 22, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual findings and legal conclusions accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
ORDER
Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until December 22, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.