GREENWELL v. BERRYHILL

Filing 48

ENTRY ON JUDICIAL REVIEW - The court finds no legal basis to reverse the ALJ's decision. The final decision of the Commissioner is AFFIRMED. Michael G.'s appeal is DISMISSED. See entry for details. Signed by Judge Tanya Walton Pratt on 7/29/2019 (copy mailed per distribution list).(TMC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
MICHAEL G.,

)
)
Plaintiff,
)
)
v.
)
)
ANDREW M. SAUL, Commissioner of the Social )
Security Administration,
)
)
Defendant.
)

Case No. 4:18-cv-00102-TWP-DML

ENTRY ON JUDICIAL REVIEW
Plaintiff Michael G. 1 requests judicial review of the final decision of the Commissioner of
the Social Security Administration (the “SSA”), denying his application for Supplemental Security
Income (“SSI”) under the Social Security Act (the “Act”). For the following reasons, the Court
affirms the decision of the Commissioner.
I.

PROCEDURAL BACKGROUND

On February 20, 2014, Michael G. filed an application for SSI, alleging a disability onset
date of April 13, 2012. (Filing No. 13-2 at 12.) His application was initially denied on August 11,
2015, (Filing No. 13-4 at 2), and upon reconsideration on October 15, 2015, (Filing No. 13-4 at
9). Administrative Law Judge William C. Zuber (the “ALJ”) conducted a hearing on September
20, 2017, at which Michael G., unrepresented by counsel, and a vocational expert (“VE”), appeared
and testified. (Filing No. 13-2 at 43-77.) The ALJ issued a decision on November 30, 2017,
concluding that Michael G. was not entitled to receive benefits. (Filing No. 13-2 at 9.) The

To protect the privacy interests of claimants for Social Security benefits, consistent with the recommendation of the
Court Administration and Case Management Committee of the Administrative Office of the United States Courts, the
Southern District of Indiana has opted to use only the first name and last initial of non-governmental parties in its
Social Security judicial review opinions.

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Appeals Council denied review on February 22, 2018. (Filing No. 13-2 at 2.) On March 7, 2018,
Michael G. timely filed this civil action, asking the Court pursuant to 42 U.S.C. § 405(g) to review
the final decision of the Commissioner denying his benefits. (Filing No. 1.)
II.

STANDARD OF REVIEW

Under the Social Security Act, a claimant may be entitled to benefits only after he
establishes that he is disabled. Disability is defined as the “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A). To be found disabled, a claimant must
demonstrate that his physical or mental limitations prevent him from doing not only his previous
work but any other kind of gainful employment which exists in the national economy, considering
his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled
despite his medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the
claimant does not have a “severe” impairment that also meets the durational requirement, he is not
disabled. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a
claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). At
step three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve-month
duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii).

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If the claimant’s impairments do not meet or medically equal one of the impairments on
the Listing of Impairments, then his residual functional capacity will be assessed and used for the
fourth and fifth steps. See 20 C.F.R. § 416.920(a)(4)(iv)-(v). Residual functional capacity
(“RFC”) is the “maximum that a claimant can still do despite his mental and physical limitations.”
Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1) 2; Social
Security Ruling (“SSR”) 96-8p). At step four, if the claimant is able to perform his past relevant
work, he is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth and final step, it must be
determined whether the claimant can perform any other work, given his RFC and considering his
age, education, and past work experience. 20 C.F.R. § 416.920(a)(4)(v). The claimant is not
disabled if he can perform any other work in the relevant economy.
The combined effect of all the impairments of the claimant shall be considered throughout
the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the
claimant for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec’y
of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
When an applicant appeals an adverse benefits decision, this Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ
“is in the best position to determine the credibility of witnesses,” Craft, 539 F.3d at 678, this Court

The Code of Federal Regulations contains separate, parallel sections concerning Disability Insurance Benefits and
SSI, which are identical in most respects. Cases, as here, may reference the section pertaining to the other type of
benefits under the Act. Generally, a verbatim section exists establishing the same legal point with both types of
benefits. See, e.g., 20 C.F.R. § 416.945(a)(1). The Court will take care to detail any substantive differences that are
applicable to the case but will not always reference the parallel section when there is no substantive difference.

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must accord the ALJ’s credibility determination “considerable deference,” overturning it only if it
is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations
omitted).
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate only where all factual issues have been resolved and the record
can yield but one supportable conclusion.” Id. (citation omitted).
III.

FACTUAL BACKGROUND

Michael G. was 40 years of age at the time he filed the application under review, (Filing
No. 13-5 at 2), alleging he could no longer work due to bipolar disorder, heart problems, diabetes,
depression, anxiety, back problems, and neuropathy in his legs and feet, (Filing No. 13-6 at 5). He
has completed the tenth grade, with a history of special education, and previously worked in
manual labor and as a tow truck driver. (Filing No. 13-6 at 6.) 3
The ALJ followed the five-step sequential evaluation set forth by the SSA in 20 C.F.R. §
416.920(a)(4) and ultimately concluded that Michael G. was not disabled. (Filing No. 13-2 at 33.)
At step one, the ALJ found that Michael G. had not engaged in substantial gainful activity 4 since
February 20, 2014, the application date. 5 (Filing No. 13-2 at 15.) At step two, the ALJ found that

The relevant evidence of record is amply set forth in the parties’ briefs, as well as the ALJ’s decision and need not
be repeated here. Specific facts relevant to the Court’s disposition of this case are discussed below.

3

Substantial gainful activity is defined as work activity that is both substantial (i.e., involves significant physical or
mental activities) and gainful (i.e., work that is usually done for pay or profit, whether or not a profit is realized). 20
C.F.R. § 416.972(a).

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5

SSI is not compensable before the application date. 20 C.F.R. § 416.335.

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he had the following severe impairments: degenerative changes of the lumbar spine status post
fusion surgery, obesity, diabetes mellitus type II with peripheral neuropathy, depression, anxiety,
and borderline intellectual functioning. Id. At step three, the ALJ found that Michael G. did not
have an impairment or combination of impairments that met or medically equaled the severity of
one of the listed impairments. (Filing No. 13-2 at 16.) After step three but before step four, the
ALJ concluded:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b), except: the claimant requires allowance of an option to sit or stand
every 30-45 minutes but is able to stand for 30-45 minutes at a time and sit for 3045 minutes at a time; the claimant is able to use his hands frequently for handling,
grasping, fingering and feeling, perform occasional stooping, crouching, kneeling,
crawling and climbing of ramps and stairs, and use his feet occasionally to operate
foot controls but is never able to climb ladders, ropes or scaffolding; the claimant
is able to sustain concentration, persistent and pace for periods of 2 hours at a time
to perform work involving simple, routine, 1-3 step tasks subject to any changes in
work routine or environment being rare and gradually introduced, having
occasional contact with supervisors and co-workers but no contact with the general
public, no fast-paced quota-driven tasks, and no work tasks that require reading.
(Filing No. 13-2 at 21.) At step four, the ALJ concluded that Michael G. did not have any past
relevant work to evaluate. (Filing No. 13-2 at 32.) At step five, the ALJ concluded, with the
assistance of the VE’s testimony and considering Michael G.’s RFC, age, education, and past
work, that there were jobs that existed in significant numbers in the national economy that he could
have performed through the date of the decision in representative occupations such as a hand
polisher, trimmer, and garment sorter. (Filing No. 13-2 at 32-33.)
IV.

DISCUSSION

Michael G. proceeds with his appeal without representation and has submitted various
documents with the Court, including motions, letters of support from his mother-in-law, letters
from his treating providers, medical records, his wife’s Family and Medical Leave Act (“FMLA”)

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certification to her employer, and an incomplete notice concerning a state benefit determination.
(See Filing No. 22-1; Filing No. 24-1; Filing No. 28-1; Filing No. 33-1; Filing No. 37; Filing No.
38; Filing No. 39; Filing No. 40; Filing No. 41; Filing No. 42; Filing No. 43.) Because Michael
G. proceeds pro se in this action, the Court will liberally construe his pleadings and consider any
issues raised by the submitted documents to the extent the Court finds it necessary to resolve the
appeal. See, e.g., Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).
A.

Previous Decisions
Michael G. asserts that his rights have been violated because the SSA has not awarded him

benefits despite the fact he was previously awarded disability and still has all the same mental and
physical impairments. (Filing No. 22-1 at 8.)
Michael G. has filed several applications for benefits in the past, including in 2006, 2011,
and 2012. (Filing No. 13-3 at 30.) Michael G. submitted a prior determination finding him
disabled as of July 2006 due to chronic brain syndrome and an affective mood disorder. (Filing
No. 33-1 at 1.) He was awarded benefits on a past application, but the benefits were terminated
following an incarceration for shoplifting. (Filing No. 13-7 at 74.)
The SSA is not required to consider any past decision, favorable or unfavorable, that
covered a different period. The SSA’s policy provides for de novo review of a claim involving a
period of time that has not been adjudicated. The current claim involves a period that was not
covered by any previous decision. The SSA has issued clear guidance regarding how a prior SSA
decision may affect a later decision:
Under SSA policy, if a determination or decision on a disability claim has become
final, the Agency may apply administrative res judicata with respect to a subsequent
disability claim under the same title of the Act if the same parties, facts and issues
are involved in both the prior and subsequent claims. However, if the subsequent
claim involves deciding whether the claimant is disabled during a period that was
not adjudicated in the final determination or decision on the prior claim, SSA
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considers the issue of disability with respect to the unadjudicated period to be a new
issue that prevents the application of administrative res judicata. Thus, when
adjudicating a subsequent disability claim involving an unadjudicated period, SSA
considers the facts and issues de novo in determining disability with respect to the
unadjudicated period.
Effect of Prior Findings on Adjudication of a Subsequent Disability Claim Arising Under the Same
Title of the Social Security Act -- Titles II and XVI of the Social Security Act. AR 98-4(6) (S.S.A.
June 1, 1998), 1998 WL 283902, at *2 (emphasis added). In other words, the SSA considers the
application anew, rather than being beholden in any way to the outcome of an older decision. The
Seventh Circuit recently explained it was not aware of any authority "that requires an ALJ to use
the same RFC that a different ALJ used in denying the benefits for a prior period.” Penrod on
behalf of Penrod v. Berryhill, 900 F.3d 474, 477 (7th Cir. 2018). The ALJ was not required to
credit that Michael G. was disabled because a past claim had found him to be disabled any more
so than the ALJ was required to find him not disabled because a prior decision had found
unfavorably for Michael G. (See Filing No. 13-3 at 7 (the most recent unfavorable decision before
the current application, dated February 20, 2014.).)
During the hearing, Michael G. presented the same argument to the ALJ, asking how he
could be denied benefits when he had been approved in the past. (Filing No. 13-2 at 71.) The ALJ
accurately explained the governing standard, that he was limited to evaluating the evidence after
the most recent decision according to the current law. (Filing No. 13-2 at 72.) The Court finds
that the ALJ applied the correct standard.
B.

Combined Impairments
In a related argument, Michael G. asserts that he not only has all the same impairments he

had when he was previously awarded benefits, that “now he has more medical and mental
diagnoses that he did when he received social security befor[e].” (Filing No. 22-1 at 8.) Michael

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G. lists numerous combined impairments or conditions, including chronic brain syndrome,
affective mood disorders, hypertension, arterial blockage in his neck, diabetes, urinary
incontinence, neuropathy, history of back surgery, an abdominal hernia, side effects from
medication, rectal bleeding, poor vision, chronic obstructive pulmonary disease, reading, writing,
and communication impairments, and generalized anxiety and stress. (Filing No. 22-1 at 8-12.)
The Court finds that the ALJ sufficiently evaluated the combined impairments that were
established by the relevant evidence pertaining to the current period at issue. The ALJ has a duty
to consider the impairments and functional effects of those impairments on a claimant’s RFC that
the evidence of record establishes. Clifford v. Apfel, 227 F.3d 863, 872-74 (7th Cir. 2000), as
amended (Dec. 13, 2000) (citing 20 C.F.R. § 404.1512(a) (Commissioner “will consider only
impairment(s) you say you have or about which we receive evidence.”)). The Seventh Circuit has
explained that “[c]onditions must not be confused with disabilities. The social security disability
benefits program is not concerned with health as such, but rather with ability to engage in full-time
gainful employment. A person can be depressed, anxious, and obese yet still perform full-time
work.” Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005). While Michael G. has submitted
evidence that he has numerous health conditions, he was not demonstrated that there were
functional limitations as a result of those conditions that were not properly evaluated by the ALJ.
The Court’s own review of the evidence does not find functional limitations that were not properly
evaluated by the ALJ. The Court will discuss any significant evidence of functional limitations
and how the ALJ properly evaluated the evidence below.
C.

Mental Impairments
Michael G. contends that he was awarded benefits in the past “for his mental health,”

(Filing No. 28-1 at 4), and that “his stress and depression has gotten much worse over the years,”

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(Filing No. 33-1 at 10).

His mother-in-law, writing on his behalf, takes issue with the

Commissioner’s response, which “stated that at one time Michael[’]s depression had got[ten]
better.” (See Filing No. 38 at 1-2.)
The Court finds that the ALJ’s conclusion that Michael G.’s mental health functioning had
improved with treatment was supported by substantial evidence. A mental condition that is
treatable and under control is not a valid basis for entitlement to benefits. Prochaska, 454 F.3d at
737. As explained above, according to the standard of review, the Court is not able to weigh the
evidence and reach its own conclusions. The Court is limited to evaluating whether there was
enough evidence to say that it was reasonable for the ALJ to reach a relevant conclusion based on
the evidence that was before him. The ALJ confronted evidence that Michael G.’s treating
psychiatrist, Rifaat S. El-Mallakh, M.D., had initially assessed Michael G. to have “marked
depression” in April 2015 when he began treatment. (Filing No. 13-2 at 17 (citing Filing No. 137 at 69).) The ALJ explained that after Michael G. completed participation in a blind, placebo
medication study and was definitively prescribed medications, he reported improvement and “Dr.
El-Mallakh consistently characterized the claimant’s impairment as being of ‘moderate’ severity
from July 2015 through December 2016.” (Filing No. 13-2 at 17 (citations omitted).) The ALJ
assessed Michael G. to have moderate limitations from his mental health impairments. (Filing No.
13-2 at 18-21.) Michael G. reported to his treating provider that his anxiety and depression
“symptoms improved” and that he denied homicidal and suicidal ideations and was “able to
maintain relationships” with others. (Filing No. 13-7 at 232.) On July 14, 2016, Dr. El-Mallakh
noted during a brief period that Michael G. had been unable to refill his prescriptions that he
reported “when he was taking medication he was doing well but [had] been feeling depressed at
times due to external stressors.” (Filing No. 13-8 at 38.) A mental status examination at the time

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showed Michael G. to have an appropriate, well-groomed appearance, relaxed, cooperative
behavior, appropriate eye contact, regular speech with clear, fluent articulation, goal directed
thought process, logical thought content, normal perception, oriented cognition, intact immediate
and short-term memory, attentive and focused attention, and good insight and judgment. (Filing
No. 13-8 at 39-40.) Dr. El-Mallakh’s diagnostic assessment was “Bipolar I disorder, most recent
episode depressed, moderate.” (Filing No. 13-8 at 40.) The evidence reasonably supported that
Michael G.’s mental health impairment had at one time responded well to medication and
improved to the point his functioning was moderately limited.
The evidence showing moderate limitations was also consistent with the assessments of
the state agency reviewing consultants, (Filing No. 13-3 at 42; Filing No. 13-3 at 63) and the
consultative examiner, (Filing No. 13-7 at 88-89 (despite evidence on the examination of July 23,
2015 that Michael G.’s attention was distractible and concentration scattered, the examiner
assessed no more than moderate limitations, defined as “still able to function satisfactorily.”)).
Accordingly, the Court does not find reversable error with the ALJ’s mental health assessment.
D.

Noncompliance and Credibility
The ALJ also confronted evidence showing that Michael G.’s diabetes was poorly

controlled according to laboratory testing and that examinations had shown decreased sensation in
his feet with some “callous/corn formation, and mild acquired hammer toes.” (Filing No. 13-2 at
23.) The ALJ also gave Michael G. “the significant benefit of the doubt in finding specific
limitations in the use of the hands for frequent handling, grasping, fingering and feeling based on
the claimant’s established history of neuropathy, poor diabetic control and recent evaluation for
complaints of wrist pain.” (Filing No. 13-2 at 24.)

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However, the ALJ did not find Michael G.’s statements “concerning the intensity,
persistence and limiting effects of [his] symptoms” to be completely credible. (Filing No. 13-2 at
23.) As noted above, the Court must accord the ALJ’s credibility determination considerable
deference, overturning it only if it is patently wrong.
Here, the ALJ noted that despite the evidence of poor control of Michael G.’s diabetes,
there was no evidence of acute complications requiring urgent medical attention or hospitalizations
during the period at issue. (Filing No. 13-2 at 25.) And despite evidence of decreased sensation
in his feet, there was “no apparent corroboration in the medical evidence for the claimant’s alleged
need for use of any cane, scooter, wheelchair or other assistive devices for ambulation.” (Filing
No. 13-2 at 26; see Filing No. 13-2 at 64 (Michael G. testified he was prescribed a scooter and had
“walkers and canes and stuff.”).)
The ALJ also noted that despite complaints of worsening pain “24/7” during a
neurosurgical evaluation, the specialist recorded “only normal findings” on examination, including
intact motor function and gait. (Filing No. 13-2 at 25 (citing Filing No. 13-7 at 34-36).) The
Court’s review of the evidence does not show any objective evidence that Michael G.’s gait was
effected by his symptoms of neuropathy or related to his other physical impairments.
Moreover, the ALJ explained that all of Michael G.’s treating providers for his diabetes
had noted noncompliance with treatment recommendations, specifically with dietary habits and
drinking Mountain Dew. (Filing No. 13-2 at 25.) An ALJ can reasonably determine that a
claimant’s allegations are not credible when the claimant fails to follow treatment
recommendations. See Dixon v. Massanari, 270 F.3d 1171, 1179 (7th Cir. 2001) (discounting
evidence of elevated blood sugar levels, in part, because of the claimant’s failure to follow dietary
recommendations); see also Craft, 539 F.3d at 679 (noting that “failure to follow a treatment plan

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can support an adverse credibility finding where the claimant does not have a good reason for the
failure”). Michael G.’s mother-in-law contends that “[w]hen Michal started drinking Mt. Dew
years ago he did not know it would cause him to become a diabetic. After becoming diabetic
Michael quit drinking regular Mt. Dew and began drinking diet Mt. Dew.” (Filing No. 38 at 1.)
The record supports the ALJ’s reading of the evidence rather than Michael G.’s mother-in-law’s
contention. On October 22, 2014, the record indicated Michael G. “[d]rinks 4- regular Mountain
Dew[s] daily.” (Filing No. 13-7 at 20.) “Diet modification discussed at length – [a]dvised to stop
sodas.” (Filing No. 13-7 at 22.) On September 23, 2015, he was “still drinking Mt. Dew.” (Filing
No. 13-7 at 198.) On September 27, 2016, Michael G. “said that he does not eat a bunch of sweets
but does drink a lot of coke.” (Filing No. 13-8 at 105.) On February 17, 2017, he “drinks 4 to 5
Mountain Dew[s] daily and water makes him thirsty. He can drink cold water in a water bottle.
He can drink tea but it has to be sweetened.” (Filing No. 13-8 at 115.) His treating provider stated
the following:
I explained to him how drinking Mountain Dew could cause his sugar to go up and
weight gain. I suggested [to] him to try to drink cold water or iced tea with Stavia.
I discussed at length with him that [I] don’t think, in my opinion, that he needs
FMLA. He has many correctable factors that are in his control. I could assist him
with Insulin adjustment and have provided him with recommendations about his
dietary habits, [i.e.] minimizing Mountain Dew.
At this point, respectfully, I don't see any limitations for him from the diabetes
mellitus standpoint. I don’t feel comfortable filling FMLA out at this time. For his
other comorbidities, he will need to discuss with his other providers. He agreed.
(Filing No. 13-8 at 117.) On July 11, 2017, the records continued to show—despite repeated
recommendations to the contrary—that Michael G. “drinks about 3 to 4 regular Mountain Dew[s]
daily.” (Filing No. 13-8 at 127.)

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Michael G.’s subjective statements concerning his functional limitation were sufficiently
undermined by specific evidence of record that he failed to follow treatment recommendations for
his most serious impairment, a lack of corroboration of any use of ambulatory aids, and objective
clinical signs that did not correspond with his alleged symptoms. As the Seventh Circuit explained
in Hall v. Berryhill, 906 F.3d 640, 644 (7th Cir. 2018), reh’g denied (Dec. 18, 2018), “the ALJ’s
credibility determination here was not ‘patently wrong’ because the ALJ found Hall ‘not fully
credible’ for many specific reasons supported by the evidence.” Id. (citing Schaaf v. Astrue, 602
F.3d 869, 875 (7th Cir. 2010). Accordingly, the Court does not find any basis to overturn the
ALJ’s credibility determination.
E.

Supportive Opinion Evidence
The ALJ confronted the numerous treating opinions that were supportive of Michael G.’s

claim. (See Filing No. 13-2 at 30-31.) The ALJ accurately described that a treating opinion must
be “well-supported and not internally inconsistent with other pertinent clinical evidence.
However, speculation as to employability carries no special significance, and the ultimate
determination of disability is specifically reserved to the Commissioner pursuant to SSR 96-5p.”
(Filing No. 13-2 at 30.) The Seventh Circuit has consistently explained that a claimant “is not
entitled to disability benefits simply because a physician finds that the claimant is ‘disabled’ or
‘unable to work.’ Under the Social Security regulations, the Commissioner is charged with
determining the ultimate issue of disability.” Clifford, 227 F.3d at 870 (citing 20 C.F.R. §
404.1527(e)).
Many of the supportive opinions were no more than conclusive assertions of disability.
(See, e.g., Filing No. 13-8 at 60 (Stephanie M. Swincher, A.P.R.N., stated “[t]he patient is

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permanently and totally disabled and will never be gainfully employed.”).) The ALJ had no duty
to give any significant weight to the numerous conclusive statements.
The Court also finds that the ALJ provided good reasons for discounting the weight of the
treating opinions that offered more specific statements about Michael G.’s functioning. The
regulations instruct the ALJ to consider “consistency” with “the record as whole” when
determining the weight that should be given a medical opinion. 20 C.F.R § 416.927(c)(4). The
regulations also instruct the ALJ to consider the “supportability” of a medical opinion, which refers
to the relevant evidence presented by the source to support the opinion, including “particularly
medical signs and laboratory findings.” 20 C.F.R. § 416.927(c)(3). The Seventh Circuit has held
that a treating source statement can be discounted if not properly explained and the treating notes
do not provide any further clarification or support with objective signs. See Schaaf, 602 F.3d at
875. The ALJ explained that Ms. Swincher’s “several opinions are not supported by the objective
contents of Ms. Swincher’s own treatment records” and “the weight of the total medical and other
evidence from all sources received at the hearing level.” (Filing No. 13-2 at 30.) The ALJ
explained that the opinions of Stacy M. Garcia, A.R.N.P., were discounted for the same reasons.
Id. Dr. El-Mallakh’s opinions were also discounted based on the consistency and supportability
factors. (Filing No. 13-2 at 30-31.)
Without elaborating on every treating source statement, the Court’s review of the evidence
does not find any reason to disturb the ALJ’s weighing of the opinion evidence. The evidence of
record supported the ALJ’s contention that the various opinions were not consistent with the record
as whole or the respective treating source’s own examination findings. For example, Ms. Garcia
provided a letter of support on July 8, 2016, that Michael G. was “unable to carry out routine, fulltime employment [due to] the extent of his chronic conditions.” (Filing No. 13-7 at 229.)

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However, her examination of Michael G. the previous day was completely normal, including
ambulation, judgment, mood and affect, recent and remote memory, lung functioning, motor
strength and tone, movement of all extremities, and gait and station. (Filing No. 13-7 at 233.) The
ALJ also provided specific references to the record to support his findings. For example, the ALJ
noted that Dr. El-Mallakh provided a letter of support on September 20, 2017, concerning Michael
G.:
He is unable to work due to his psychiatric and medical problems. Specifically, his
ability to concentrate, and perform intellectual tasks is limited and creates problems
with any task that requires cognitive ability. Furthermore, his ability to perform
physical work is very limited due to pain and weakness of his spine. He cannot
maintain either intellectual or physical activities for any length of time.
(Filing No. 13-8 at 173.) However, Dr. El-Mallakh specifically supported the opinion by stating
that Michael G. had “several herniated discs.” Id. The ALJ pointed out that none of the imaging
of Michael G.’s spine was consistent with Dr. El-Mallakh’s characterization. (Filing No. 13-2 at
31 (citing e.g., Filing No. 13-7 at 24 (MRI showed a concentric disc bulge at L3-4, but no
herniation was noted)).) The psychiatrist’s opinion was also inconsistent with his own mental
status examinations that showed improvement—including even when Michael G.’s medications
were interrupted—indicating he had an appropriate, well-groomed appearance, relaxed,
cooperative behavior, appropriate eye contact, regular speech with clear, fluent articulation, goal
directed thought process, logical thought content, normal perception, oriented cognition, intact
immediate and short-term memory, attentive and focused attention, and good insight and
judgment. (See Filing No. 13-8 at 39-40 (July 14, 2016); Filing No. 13-8 at 36-37 (October 6,
2016)).
Accordingly, the Court does not find error based on the ALJ’s treatment of the opinion
evidence.

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F.

Evidence Submitted to the Court
Similarly, the Court will not detail every piece of evidence that Michael G. has submitted

along with his judicial review appeal. Except where the evidence is duplicative of evidence that
was admitted and exhibited by the ALJ, Michael G. did not submit the evidence to the SSA that
he now attaches to his federal appeal (for example, along with his appeal to the Appeal Council).
The Seventh Circuit has explained that “[a] reviewing court may order additional evidence to be
taken before the Commissioner 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.’” Schmidt v. Barnhart, 395 F.3d 737, 741-42 (7th Cir. 2005) (quoting 42 U.S.C. §
405(g) (sentence six)). “Evidence is ‘new’ if it was ‘not in existence or available to the claimant
at the time of the administrative proceeding.’” Schmidt, 395 F.3d at 742 (quoting Perkins v.
Chater, 107 F.3d 1290, 1296 (7th Cir. 1997)). “New evidence is ‘material’ if there is a ‘reasonable
probability’ that the ALJ would have reached a different conclusion had the evidence been
considered.” Schmidt, 395 F.3d at 742 (quoting Johnson v. Apfel, 191 F.3d 770, 776 (7th Cir.
1999)). “Thus, new evidence is material only if it is relevant to the claimant’s condition ‘during
the relevant time period encompassed by the disability application under review.’” Schmidt, 395
F.3d at 742 (quoting Kapusta v. Sullivan, 900 F.2d 94, 97 (7th Cir. 1990)). Furthermore,
cumulative evidence is not considered new under the Act. Sears v. Bowen, 840 F.2d 394, 399 (7th
Cir. 1988).
Most of the treatment evidence that Michael G. has submitted along with his federal appeal
pertain to his functioning after the period at issue covered by the ALJ’s decision. (See e.g., Filing
No. 22-1 at 5 (letter from Ms. Garcia dated July 3, 2018 that Michael G. now requires an emotional

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support animal for daily functioning related to his mental health).) The evidence of his functioning
that post-dates the ALJ’s decision is not relevant to the period under review.
Michael G. has also submitted several documents that are cumulative of the evidence that
was specifically considered by the ALJ. For example, he submitted: (1) a conclusive statement of
disability like the ones discounted by the ALJ and referencing the conditions that were specifically
evaluated in the decision, (see Filing No. 24-1 at 2 (“unable to obtain/retain gainful employment
due to chronic conditions including back pain ([history] of surgical intervention), diabetes type 2
(uncontrolled), diabetic neuropathy, hypertension (poorly controlled)”)); (2) glucose reading
showing poor control of his diabetes, (see Filing No. 28-1 at 18-24); and (3) a partial notice from
the State of Indiana that he had been found medically frail, (see Filing No. 33-1 at 3-7). The ALJ
addressed the full notice in the decision, which did not provide any necessary substantiation as to
the basis of the determination that would be relevant to the ALJ’s disability determination. (Filing
No. 13-2 at 31.) SSR 06-03p (S.S.A. Aug. 9, 2006), 2006 WL 2329939, at *6, makes clear that
the SSA is not bound by disability determinations made by other governmental agencies, but rather
makes the determination based on its own legal guidance. Michael G. also submitted an FMLA
certification to his wife’s employer dated February 16, 2018 that she has been helping him with
“all” his activities of daily living since December 9, 2015. (Filing No. 22-1 at 17.) The record
before the ALJ included a functional report from Michael G. that he received daily assistance from
his wife, despite her not living with him. (Filing No. 13-6 at 67.) The ALJ acknowledged that
Michael G. alleged engaging in limited activities of daily living but found it difficult to attribute
the degree of limitation to his medical condition “in view of the relatively weak medical evidence
and other factors discussed in this decision.” (Filing No. 13-2 at 28-29.) This cumulative evidence
is not considered new under the Act.

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The Court does not find that any of the evidence meets the requirements of the Act as new
and material, such that it would be necessary for the Court to remand the claim to the SSA to
consider the evidence. To the extent that the evidence reflects his functioning after the period
covered by the ALJ’s decision, Michael G. may opt to file another application for benefits to have
that evidence properly considered by the SSA.
V.

CONCLUSION

“The standard for disability claims under the Social Security Act is stringent.” WilliamsOverstreet v. Astrue, 364 F. App’x 271, 274 (7th Cir. 2010). For the reasons stated above, the
Court finds no legal basis to reverse the ALJ’s decision. The final decision of the Commissioner
is AFFIRMED. Michael G.’s appeal is DISMISSED.
SO ORDERED.
Date: 7/29/2019

DISTRIBUTION:
Michael G.
275 Woodridge Drive
Charlestown, Indiana 47111
Regina S. Edwards
UNITED STATES ATTORNEY’S OFFICE - Louisville
717 West Broadway
Louisville, Kentucky 40202
Catherine L. Gibbons
SOCIAL SECURITY ADMINISTRATION
[e-mail]
L. Jay Gilbert
UNITED STATES ATTORNEY’S OFFICE - Louisville
717 West Broadway
Louisville, Kentucky 40202
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Jean Marie Godfrey
SOCIAL SECURITY ADMINISTRATION
[e-mail]
Julian Clifford Wierenga
UNITED STATES ATTORNEY’S OFFICE (Indianapolis)
[e-mail]

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