Woods v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge Rudy Lozano on 9/30/15. (cc: Timothy F Woods). (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

TIMOTHY F. WOODS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

NO. 2:14-CV-83

OPINION AND ORDER
This

matter

is

before

the

Court

for

review

of

the

Commissioner of Social Security’s decision denying Disability
Insurance Benefits to Plaintiff, Timothy F. Woods.

For the

reasons set forth below, the decision of the Commissioner is
AFFIRMED.

BACKGROUND
In July of 2009, Plaintiff, Timothy F. Woods (“Woods”),
filed an application for Disability Insurance Benefits (“DIB”)
and

Supplemental

Security

Income

(“SSI”),

alleged to have begun on December 27, 2007.

for

a

disability

(Tr. 15, 280, 283.)

Woods’ claims were denied initially and upon reconsideration.
(Tr. 15, 127-30.)

Upon Woods’ written request, a video hearing

was held on January 11, 2011; Woods, who was represented by
attorney

Charles

F.

Marlowe

(“Attorney

Marlowe”),

and

a

vocational expert (“VE”), Mr. Harding, testified.
26.)

(Tr. 15, 101-

On January 28, 2011, the Administrative Law Judge (“ALJ”),

Curt Marceille, issued a decision that was unfavorable to Woods,
finding that he was not disabled.

(Tr. 15, 134-44.)

The Appeals

Council remanded the matter back to an ALJ, this time to ALJ
Edward Studzinski, for resolution of an issue involving medical
expert responses to interrogatories.

(Tr. 15, 149-50.)

Upon

remand, the ALJ was to proffer the medical expert responses to
interrogatories

in

accordance

with

Hallex

I-2-5-42,

obtain

additional evidence concerning Woods’ impairments with regard to
consultative examinations and existing medical evidence, and, if
warranted, give further consideration to Woods’ maximum residual
functional capacity (“RFC”).

(Id.)

On August 21, 2012, ALJ

Studzinski held a video conference hearing, at which Woods, who
was still represented by Attorney Marlowe, testified along a
medical expert and a VE.

(Tr. 15, 47-100.)

On October 11, 2012,

ALJ Studzinski issued a decision that was again unfavorable to
Woods, finding that Woods was not disabled during the relevant
time period.

(Tr. 15-27.)

On February 25, 2014, the Appeals Council denied Woods’
request for review.
Appeals

Council

(Tr. 1-5.)

stated

that,

in

In its notice to Woods, the
addition

to

considering

the

reasons Attorney Marlowe listed on the Order of Appeals Council
form, it also reviewed additional records provided after the
-2-

October 2012 hearing.1

(Tr. 2.)

The Appeals Council concluded

that the new information related to a later time period and did
not

affect

the

decision

about

whether

beginning on or before October 11, 2012.

Woods

was

(Id.)

disabled

The Appeals

Council advised Woods that if he wanted the Appeals Council to
consider whether he was disabled after that date, he would need
to apply again.

(Id.)

Accordingly, ALJ Studzinski’s decision

dated October 11, 2012, became the Commissioner’s final decision
in this matter.

Woods has initiated the instant action for

judicial review of the Commissioner’s final decision pursuant to
42 U.S.C. § 405(g).

RELEVANT FACTS2
From February 2013 to July 2013, Woods treated at the Center
for Pain Management, generally with Dr. Simon Ho.

(Tr. 699-707,

725-38.)

At his initial assessment on February 1, 2013, he was

found

ambulate

to

with

difficulty,

but

to

have

a

negative

straight-leg raise test bilaterally and to have 5/5 strength in
all extremities.

(Tr. 727.)

In late February, following an MRI,

Dr. Ho characterized Woods’ condition as failing to respond to
conservative measures “for at least three months.”

1

(Tr. 733.)

The Appeals Council listed each set of documents that it considered by
name.
2
The Court has borrowed liberally from the Commissioner’s brief for this
section of the order; Woods has not pointed to any relevant facts whatsoever
in support of his position.

-3-

Dr. Ho administered a cervical interlaminar epidural on March 5,
2013, which substantially reduced Woods’ reported pain.
734,

736.)

cervical

On

medial

May

20,

branch

2013,

Woods

block.

(Tr.

underwent
699.)

At

a
a

(Tr.

diagnostic
follow-up

appointment the next month, he related that his post-procedure
pain was 0 out of 10 at its lowest.

(Tr. 701.)

“substantial increase in functional capacity.”

He also noted a
(Tr. 701.)

Dr.

Simon Ho again performed the block procedure in July of 2013 and
again achieved similar results.
Also

beginning

in

(Tr. 703-06.)

February

of

2013,

Edgewater Systems for his depression.
Later

notes

generally

assessed

Woods

Woods

treated

with

(Tr. 709-24, 739-56.)
as

having

“moderate

symptoms” which generally improved with treatment and medication
(Tr. 711, 713, 715, 717, 719.)
Woods also treated at St. Mary’s Medical Center in March of
2013.

(Tr. 758.)

These records appear to be the inpatient

hospital records associated with Woods’ March 5, 2013, epidural
injection.

(Tr. 758-790.)

On September 26, 2013, Mrs. Rose Davis, M.A., a therapist,
completed a mental impairment questionnaire for Woods.
693-98.)

(Tr.

Mrs. Davis failed to indicate her frequency or length

of contact with Woods, but she opined that Woods had a GAF score
of 55, suffered poor concentration, mood swings, anger outbursts,
insomnia, rapid speech, blurred vision, severe back pain, and
-4-

neck pain.

(Tr. 693.)

Mrs. Davis marked every listed mental

ability or aptitude needed to do (unskilled or skilled) work as
“unable to meet competitive standards.”

(Tr. 695-96.)

She also

opined that Woods could be expected to miss more than four days
of work per month.

(Tr. 698.)

DISCUSSION
Review of Commissioner’s Decision
This

Court

has

authority

to

review

decision to deny social security benefits.

the

Commissioner’s

42 U.S.C. § 405(g).

“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive .
. . .”

Id.

Substantial evidence is defined as “such relevant

evidence as a reasonable mind might accept as adequate to support
a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quotation omitted).

In determining whether substantial evidence

exists, the Court shall examine the record in its entirety, but
shall

not

substitute

its

own

opinion

for

the

ALJ’s

reconsidering the facts or reweighing the evidence.
Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).

by

Jens v.

With that in mind,

however, this Court reviews the ALJ’s findings of law de novo and
if the ALJ makes an error of law, the Court “may reverse without
regard

to

findings.”

the

volume

of

evidence

in

support

of

the

factual

White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).

-5-

As a threshold matter, for a claimant to be eligible for
benefits

under

the

Social

Security

Act,

the

claimant

must

establish that he is disabled. To qualify as being disabled, the
claimant must be unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period

of

not

less

than

423(d)(1)(A) and 1382(a)(1).

twelve

months.”

42

U.S.C.

§§

To determine whether a claimant has

satisfied this statutory definition, the ALJ performs a five-step
evaluation:
Step 1:
Is
the
claimant performing
substantial gainful activity: If yes, the
claim is disallowed; if no, the inquiry
proceeds to step 2.
Step 2:
Is the claimant’s impairment or
combination of impairments “severe” and
expected to last at least twelve months? If
not, the claim is disallowed; if yes, the
inquiry proceeds to step 3.
Step 3:
Does
the
claimant have an
impairment or combination of impairments that
meets or equals the severity of an impairment
in the SSA’s Listing of Impairments, as
described in 20 C.F.R. § 404 Subpt. P, App.
1? If yes, then claimant is automatically
disabled; if not, then the inquiry proceeds
to step 4.
Step 4:
Is the claimant able to perform his
past relevant work? If yes, the claim is
denied; if no, the inquiry proceeds to step
5, where the burden of proof shifts to the
Commissioner.

-6-

Step 5:
Is the claimant able to perform any
other work within his residual functional
capacity in the national economy: If yes, the
claim is denied; if no, the claimant is
disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case, the ALJ found that Woods suffered from the
following

severe

impairments:

obesity.

(Tr. 18.)

severe”

impairments

degenerative

disc

disease

and

He also determined that Woods had “nonrelated

to

his

diabetes

mellitus,

hyperlipidemia, and hypertension, all of which were controlled.
(Id.)

The ALJ opined that Woods’ mental impairment of depression

did not cause more than minimal limitations in his ability to
perform basic mental work activities and was thus also “nonsevere.”

In making that determination, the ALJ noted that,

although the record indicated the claimant was diagnosed with
depression on July 31, 2012, by his primary care provider, the
record did not show that Woods had ever treated with or even met
with a psychiatric expert.

(Id.)

The ALJ also pointed out that

Woods’ diagnosis was made approximately a month before the date
of his decision; the ALJ stated that Woods had failed to allege
that he was disabled due to depression, or any other mental
impairment, in his original disability report and that the record
did not establish that such impairment would last a full twelve
months.

(Id.)
-7-

Ultimately, the ALJ concluded that Woods did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

(Tr. 20.)

The ALJ also found that Woods had the RFC to perform:
less than light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b).
Specifically,
the claimant can lift and carry twenty pounds
occasionally and ten pounds frequently. The
claimant can stand or walk for one hour at a
time and stand and/or walk for four hours
total in an eight-hour workday. The claimant
must be allowed to sit for five minutes after
standing for an hour. The claimant can sit
for two hours at a time.
The claimant can
occisionally climb stairs and ramps, but
cannot climb ladders, ropes, and scaffolds.
The claimant can occasionally balance, stoop,
kneel, crouch, and crawl.
The claimant can
occasionally perform overhead reaching with
his upper extremities bilaterally.
The
claimant can frequently, but not constantly,
operate foot controls bilaterally.
The
claimant cannot work at unprotected heights
or perform work involving constant exposure
to unguarded, hazardous machinery.
(Id.)
After considering Woods’ age, education, work experience and
RFC, the ALJ relied upon the testimony of the VE and concluded
that Woods was not disabled and not entitled to benefits because
he was capable of making a successful adjustment to other work
that existed in significant numbers in the national economy.
(Tr.

26.)

Thus,

Woods’

claim
-8-

failed

at

step

five

of

the

evaluation process.
In
decision

his
was

complaint,
erroneous

Woods

states

because

that

the

“[a]dditional

submitted and not considered in this decision.”

Commissioner’s
evidence

was

(DE #1, p. 1.)

He does not identify what evidence he is referring to.

In his

pro se brief, Woods states, in full and verbatim, that he is:
appealing this case due to evidence not
admitted for the Commissioner to make this
decision. The rules state you must have the
condition continuously for a period of 12
months and unable to work.
First and far
most I’ve had this condition since December
2007.
As stated in my medical records my
condition is disabling me to do anything
physically and mentally.
The records which
was submitted October 2012 as stated in the
denial was not taken into consideration to
make this decision.
I am still seeking
medical attention for my physical and my
mental disabilities. If need be I can submit
more supporting documentation from the date
of October 2012 to present.
Your attention
to this matter would be greatly appreciated.
(DE #14, pp. 1-2.)

While Woods is not represented by counsel at

this time, he nonetheless bears the burden of showing that the
ALJ committed reversible error.

See Cadenhead v. Astrue, 410 F.

App’x 982, 994 (7th Cir. 2011) (pro se litigants “must present
arguments

supported

by

legal

authority

and

citations

to

the

record”); McLachlan v. Astrue, 392 F. App’x 493, 494 (7th Cir.
2010) (dismissing pro se appeal because the brief did “not refer
to facts in the record or contain an argument consisting of more
than

a

generalized

assertion

of

-9-

error”).

“A

generalized

assertion of error is not sufficient to challenge an adverse
ruling, . . . and undeveloped or unsupported contentions are
waived.”

Cadenhead, 410 F. App’x at 984 (citations omitted).

Woods has not presented any legal authority in support of his
position,
record.

and

he

has

not

provided

a

single

citation

to

the

He has not specified what evidence that was submitted

was allegedly not considered, and he has not identified any
evidence that was not submitted that should now be considered.
Such a generalized assertion of error, devoid of any supporting
facts, law, or citation to the record, is not sufficient to
challenge the ALJ’s adverse ruling, and the Court finds that all
of Woods’ undeveloped and unsupported arguments are waived.
the

extent

that

Woods

is

arguing

that

the

Appeals

To

Council

improperly rejected evidence that was submitted subsequent to the
October 2012 hearing held by ALJ Studzinski,3 the Court agrees
with the Commissioner that the evidence was properly categorized
as not material to the time period in question.
Pursuant

to

Social

Security

Administration

regulations,

“[i]f 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.”

20 C.F.R. §§ 404.970(b).

3

If the Appeals

This is how Woods’ argument is classified by the Commissioner in its
Memorandum in Support of the Commissioner’s Decision, and Woods has not filed
a reply to dispute or clarify that classification.

-10-

Council determines that the evidence is new and material, it must
evaluate

the

entire

record,

including

the

newly

submitted

evidence, to determine if the ALJ’s decision is contrary to the
weight of the evidence.

Id.

A district court is tasked with

analyzing whether the Appeals Council made an error of law in
refusing that review, but “[i]n the absence of any such error . .
. the Council’s decision whether to review is discretionary and
unreviewable.”
1997).

Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir.

The Seventh Circuit has explained that “whether [an]

ALJ’s decision is supported by substantial evidence is not the
same question as whether the Appeals Council properly rejected
[an] appeal.”

Farrell v. Astrue, 692 F.3d 767, 770-71 (7th Cir.

2012).4
When it relates to that particular decision by the Appeals
Council, “new and material” evidence is defined as:
1. Not part of the claim(s) record as of the
date of the ALJ decision;
2. Relevant, i.e., involves or is directly
related to issues adjudicated by the ALJ; and
3. Relates to the period on or before the
date of the ALJ decision, meaning it is: (1)
dated before or on the date of the ALJ
decision, or (2) post-dates the ALJ decision
but is reasonably related to the time period
adjudicated by the ALJ.
4

Sentence six of 42 U.S.C. § 405(g) is not applicable where, as here, the
evidence the claimant wanted the court to consider was not “new” to the
district court because it had already been submitted to and rejected by the
Appeals Council. Farrell, 692 F.3d at 770.

-11-

Lomax v. Colvin, 13–CV–331–JDP, 2014 WL 4265842, at *13 (W.D.Wis.
Aug. 28, 2014) (citing HALLEX I–3–3–6).5
Here, it is undisputed that the evidence was new to the
administrative record at the time of Woods’ application to the
Appeals Council, so the question at issue is whether the newly
submitted evidence was material.
the

Supplemental

Certification

After review of the evidence in
filed

by

the

Commissioner

(DE

#18), the Court agrees with the Commissioner that the Appeals
Council was correct in noting that such information was “new
information about a later time” and thus does “not affect the
decision

about

whether

[Woods]

before October 11, 2012.”

was

disabled

beginning

on

or

None of the additional evidence cited

by the Appeals Council speaks to Woods’ condition as it existed
at the time of the ALJ’s decision, nor is it reasonably related
to the time period adjudicated by the ALJ.

See Johnson v. Apfel,

191 F.3d 770, 776 (7th Cir. 1999) (citing Anderson v. Bowen, 868
F.2d 921, 927 (7th Cir. 1989)) (“the evidence must ‘relate to the
claimant’s condition during the relevant time period encompassed
by the disability application under review.’”).

Woods does not

identify any information that would reasonably have changed the
ALJ’s conclusion that he was disabled beginning on or before
October 11, 2012.

The evidence contained within the Supplemental

Certification describes treatment that Woods received anywhere
5

HALLEX is the Social Security Administration's internal Hearings, Appeals,
and Litigation Law Manual.

-12-

from four to eleven months after the date of the decision.

It

does not diagnose a previously undiagnosed condition, provide an
opinion expanding upon a relevant diagnosis as it existed during
the adjudicative period, or seek to fill any evidentiary gaps.
As such, it was not error for the Appeals Council to determine
that

the

newly

submitted

evidence

did

not

affect

the

ALJ’s

decision.
Woods presents no further argument and does not identify any
other defect in the ALJ’s reasoning.

As noted above, even pro se

litigants must present arguments supported by legal authority and
citations to the record, and a generalized assertion of error is
insufficient to challenge an ALJ’s ruling.

See Cadenhead, 410 F.

App’x at 984, 994; McLachlan v. Astrue, 392 F. App’x at 494.
This Court finds that the ALJ provided substantial evidence in
support of his decision.

Woods was represented by counsel during

the administrative proceedings and had an adequate opportunity to
present all relevant evidence to the ALJ during the time period
in question and to fully develop the underlying medical record.
Because Woods has failed to demonstrate that the ALJ committed
error at any step of his analysis, his appeal must be dismissed
and the ALJ’s decision must be affirmed.

-13-

CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is AFFIRMED.

DATED: September 30, 2015

/s/ Rudy Lozano, Judge
United States District Court

-14-