Ransom v. SSA

Filing 19

MEMORANDUM OPINION AND ORDER; (1) The decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiffs 13 Motion for Summary Judgment is hereby DENIED; (3) Defendants 18 Motion for Summary Judgment is hereby GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith.. Signed by Judge David L. Bunning on 6/25/2018. (LST)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 17-160-DLB
CHRISTOPHER RANSOM
vs.

PLAINTIFF

MEMORANDUM OPINION & ORDER

NANCY A. BERRYHILL, Commissioner
of Social Security Administration
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DEFENDANT

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Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record and the parties’ dispositive motions, and for the reasons set forth
herein, will affirm the Commissioner’s decision.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On February 24, 2014, Plaintiff Christopher Ransom applied for disability

insurance benefits (“DIB”), alleging disability beginning on February 8, 2013. (Tr. 574,
598). Plaintiff was forty-one-years old at the time of the alleged disability onset date, and
he alleged that he was unable to work due to a back injury. Id.
Plaintiff’s application was denied initially, and again on reconsideration. (Tr. 482492; 495-506). At Plaintiff’s request, an administrative hearing was conducted on April
21, 2016, before Administrative Law Judge (“ALJ”) Andrew Gollin. (Tr. 58-102). On June
16, 2016, ALJ Gollin ruled that Plaintiff was not entitled to benefits. (Tr. 40-57). This
decision became the final decision of the Commissioner on August 18, 2017, when the

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Appeals Council denied Plaintiff’s request for review. (Tr. 1-7). In denying review, the
Appeals Council also declined to consider new medical evidence submitted by the Plaintiff
because it did “not show a reasonable probability that it would change the outcome of the
decision.” (Tr. 2).
Plaintiff filed the instant action on September 13, 2017, alleging the ALJ’s decision
“was contrary to law” and applied “incorrect standards.” (Doc. # 1 at 2). The matter has
culminated in cross-motions for summary judgment, which are now ripe for adjudication.
(Docs. # 13 and 18).
II.

DISCUSSION
A.

Overview of the Process

Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial evidence” is
defined as “more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make
credibility determinations.

Id.

Rather, the Court must “affirm the Commissioner’s

conclusions unless the Commissioner failed to apply the correct legal standard or made
findings of fact that are unsupported by substantial evidence.” McClanahan v. Comm’r of
Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006). If supported by substantial evidence, the
Commissioner’s findings must be affirmed, even if there is evidence favoring Plaintiff’s
side. Listenbee v. Sec’y of Health & Human Servs., 846 F.2d 345, 349 (6th Cir. 1988).

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Put another way, “[t]he findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different conclusion.”
McClanahan, 474 F.3d at 833 (citing Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
“This is so because there is a ‘zone of choice’ within which the Commissioner can act,
without the fear of court interference.” Buxton, 246 F.3d at 772.
To determine disability, the ALJ conducts a five-step analysis. Step One considers
whether the claimant has engaged in substantial gainful activity; Step Two, whether any
of the claimant’s impairments, alone or in combination, are “severe”; Step Three, whether
the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether
the claimant can still perform his past relevant work; and Step Five, whether a significant
number of other jobs exist in the national economy that the claimant can perform. The
burden of proof rests with the claimant on Steps One through Four. As to the last step,
the burden of proof shifts to the Commissioner to identify “jobs in the economy that
accommodate [Plaintiff’s] residual functional capacity.” See Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 474 (6th Cir. 2003); see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
B.

The ALJ’s Determination

At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since February 8, 2013, the alleged onset date of disability. (Tr. 45). At Step
Two, the ALJ determined that Plaintiff had the following severe impairments: lumbar disc
displacement and bulging; degenerative disc disease of the lumbar spine status post
anterior fusion of L5-S1. Id. The ALJ also determined that Plaintiff had one non-severe
impairment: depression. (Tr. 45-46). At Step Three, the ALJ concluded that Plaintiff did

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not have an impairment or combination of impairments that met or medically equaled one
of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 47).
At Step Four, the ALJ found that Plaintiff possessed the residual functional
capacity (RFC) to perform work at the light exertional level, as defined in 20 C.F.R. §
404.1567(b), with the following limitations:
The claimant is limited to lifting/carrying no more than 15 pounds
occasionally and 10 pounds frequently. The claimant is limited to
standing/walking for no more than one hour at a time and for a total of no
more than five hours in an eight-hour workday. The claimant is limited to
sitting for no more than one hour at a time and for a total of no more than
six hours in an eight-hour workday. The claimant is limited to no more than
occasional climbing of ramps and stairs, balancing, stooping, crouching,
kneeling, and crawling. The claimant is limited to no climbing of ropes,
ladders, or scaffolds. The claimant is limited to no work involving
concentrated exposure to vibration. The claimant is limited to no work
involving hazardous machinery or equipment and no work involving
unprotected heights.
(Tr. 47). Based on this RFC and relying on the testimony of a vocational expert (“VE”),
the ALJ concluded that Plaintiff was not able to perform his past relevant work as a forklift
operator, material handler, or mixer. (Tr. 52). Therefore, the ALJ proceeded to Step Five
where he determined that there were other jobs that existed in significant numbers in the
national economy that the Plaintiff could have performed. (Tr. 28-29). Specifically, the
ALJ determined that the Plaintiff could perform the following occupations: cashier, general
office clerk, or rental clerk. (Tr. 53).
Although the determination that jobs at the light exertional level existed in
significant numbers in the national economy was sufficient to conclude the analysis, the
ALJ also considered the Plaintiff’s job prospects if he had the RFC to perform work at the
sedentary exertional level. Id. “Even if the [Plaintiff was] further limited to sedentary work
with the other restrictions identified” in the RFC, the ALJ found that “he would still be able
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to perform a significant number of jobs in the national economy. Id.

Accordingly, the

ALJ concluded that Plaintiff was not under a disability, as defined in the Social Security
Act. Id.
C.

Analysis

Plaintiff advances four arguments in his Motion for Summary Judgment. (Doc. #
13). First, Plaintiff claims that the ALJ erred in weighing the medical-opinion testimony.
(Doc. # 13-1 at 17). Second, Plaintiff appears to argue that the ALJ erred in assessing
his credibility. Id. at 2-5, 15. Third, Plaintiff advances a general argument that the RFC
is not supported by substantial evidence. Id. at 13-16. And lastly, the Plaintiff suggests
that remand is appropriate under Sentence Six because he has presented new, material
evidence. Id. at 18. The Court will consider each argument in turn.
1.

The ALJ did not err in weighing the medical-opinion testimony.

In social security disability cases, medical evidence may come from treating
sources, non-treating sources, and non-examining sources. 20 C.F.R. § 404.1527. A
treating source is the claimant’s “own acceptable medical source who provides [claimant],
or has provided [claimant], with medical treatment or evaluation and who has, or has had,
an ongoing treatment relationship with [claimant].” Id.; see also Abney v. Astrue, No.
5:07-cv-394-KKC, 2008 WL 2074011, at *11 (E.D. Ky. May 13, 2008). A non-treating
source is an acceptable medical source who has examined the claimant, but does not
have an ongoing treatment relationship with her, while a non-examining source has
provided medical or other opinion evidence in the case without examining the claimant.
Id.

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The Plaintiff takes issue with the ALJ’s decision to accord any weight to the medical
opinion testimony of Dr. Sadler, a non-examining source, as well as the ALJ’s decision to
give only some weight to the testimony of Dr. Wunder, a non-treating, examining source.
(Doc. # 13-1 at 14-15, 17). The Plaintiff also challenges the ALJ’s alleged “rejection” of
Dr. Jacquemin’s medical opinion. The Court will address the ALJ’s assessment of each
doctor’s medical-opinion evidence in turn.
a.

Dr. Jacquemin

First, it is unclear whether Dr. Jacquemin is a treating source or a non-treating,
examining source. The record characterizes Plaintiff’s relationship with Dr. Jacquemin
as a consultation with a new orthopedic surgeon, but it appears that the Plaintiff visited
Dr. Jacquemin several times. Therefore, the Court will assume that Dr. Jacquemin
qualifies as a treating source and analyze his medical opinion accordingly.
A treating source’s opinion is entitled to controlling weight if it is “‘well supported
by medically acceptable clinical and laboratory diagnostic techniques’ and ‘not
inconsistent with the other substantial evidence in the case record.’” Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)). If
a treating source’s opinion is not entitled to controlling weight, the ALJ must consider the
following factors in order to determine how much weight to give the opinion: (1) the length
of the treatment relationship and the frequency of the examination; (2) the nature and
extent of the treatment relationship; (3) the supportability of the opinion; (4) the
consistency of the opinion with the record as a whole; and (5) the specialization of the
treating source. Id. The ALJ must provide “good reasons” for giving less than controlling
weight to a treating source’s opinion. 20 C.F.R. § 404.1527(c)(2). Specifically, a decision

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denying benefits “must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.” SSR 962p, 1996 WL 374188, at *5 (July 2, 1996).
The “treating physician rule” only applies to medical opinions. While a medical
expert may opine “on issues such as whether [claimant’s] impairment(s) meets or equals
the requirements of any impairment(s) in the Listing of Impairments,” as well as claimant’s
residual functional capacity or the application of vocational factors, such opinions are not
entitled to controlling weight. See 20 C.F.R. § 404.1527(d)(2) (stating that “the final
responsibility for deciding these issues is reserved to the Commissioner”). “Although the
ALJ may not entirely ignore such an opinion, his decision need only explain the
consideration given to the treating source’s opinion.” Turner v. Comm’r of Soc. Sec., 381
F. App’x 488, 493 (6th Cir. 2010) (internal citations omitted).
Plaintiff does not contest the ALJ’s weighing of Dr. Jacquemin’s medical opinion,1
instead he argues that the “ALJ rendered his denial based upon his rejection of an
objective fact … that [Plaintiff] did not have a psuedoarthrosis or a non-union of the
vertebrae.” (Doc. # 13-1 at 14, 17). The Plaintiff’s claim that the ALJ “rejected” Dr.
Jacquemin’s opinion, however, is belied by the record. In his review of the medical

1

Because Plaintiff has not made such an argument, it is deemed waived. See Kennedy v. Comm’r
of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (citing United States v. Elder, 90 F.3d 1110, 1118 (6th
Cir. 1996)) (“[I]ssues which are ‘adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.’”); see also Privett v. Colvin, No. 6:14-cv-113-DLB, 2015
WL 1281725, at *2 (E.D. Ky. Mar. 20, 2015) (“If the Court were to scour the record to determine if these
claims have merit, it would set a precedent that plaintiffs in this district can merely file a boilerplate brief
raising every possible basis for remand under the sun, in hopes that one shines through. Such a process
would undermine the ALJ’s role, waste judicial resources, and be completely at odds with the appropriate
standard of review.”).

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evidence, the ALJ noted that the Plaintiff had “underwent consultation with a new
orthopedic surgeon, Dr. John Jacquemin, who has recommended the claimant pursue a
spina cord stimulator or a revision surgery of his fusion surgery due to a suspected nonunion of the L5-S1 vertebrae.” (Tr. 49). Thus, the ALJ did not ignore or reject that
evidence. Instead, the ALJ relied on Dr. Jacquemin’s findings to accord lesser weight to
Dr. Wunder’s inconsistent clinical findings. (Tr. 50). In fact, the ALJ’s Hearing Decision
discusses Dr. Jacquemin’s findings throughout his analysis of the record evidence. (Tr.
49-50 at n.7, 8). Therefore, the Court finds that the ALJ appropriately considered—and
did not reject—Dr. Jacquemin’s medical opinion.2
b.

Dr. Wunder

Unlike testimony from a treating source, the medical-opinion evidence from a nontreating source is usually not entitled to as much weight. 20 C.F.R. § 404.1527(c)(2).
However, “[a]s a general matter, an opinion from a medical source who has examined a
claimant is given more weight than that from a source who has not performed an
examination.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013); see
also 20 C.F.R. § 404.1527(c)(1).

That said, “opinions from non-treating and non-

examining sources are never assessed for ‘controlling weight.’” Id. at 376.
Thus, when determining how much weight to accord a non-treating physician’s
opinion, the ALJ is guided by the 20 C.F.R. § 404.1527(d)(2) factors. Davenport v. Astrue,
No. 3:06-cv-402, 2008 WL 641131 at *6 (S.D. Ohio Mar. 4, 2008). Accordingly, the ALJ

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To the extent the ALJ did discount any portion of Dr. Jacquemin’s opinion, the ALJ provided good
reasons for doing so and reached a conclusion that is supported by substantial evidence. (Tr. 50 n.7) (“Dr.
Jacquemin also indicated there was probable non-union of the claimant’s L5-S1 fusion based on his review
of the radiological studies form late 2015 and early 2016, although this finding does not appear in any of
the radiolofical reports, including the lumbar CT study ordered by Dr. Jacquemin himself, and these reports
also note interval healing and stable surgical changes at the L5-S1 level.”).

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must consider: (1) the length of the treatment relationship and the frequency of the
examination; (2) the nature and extent of the treatment relationship; (3) supportability of
the opinion; (4) consistency of the opinion with the record as a whole; and (5) the
specialization of the treating source. Id.; 20 C.F.R. § 404.1527(c)(2). The ALJ reserves
the right to evaluate the claimant’s RFC and to apply vocational factors. 20 C.F.R. §
404.1527(d)(2). However, the ALJ must give his reasons for the weight he assigns each
medical opinion. SSR 96-5p, 1996 WL 362206 (July 2, 1996).
Dr. Wunder examined Plaintiff once—after the administrative hearing. (Tr. 51).
Therefore, Dr. Wunder is a non-treating but examining source. See Brooks v. Comm’r of
Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (citing 20 C.F.R. § 404.1502). Although
the Plaintiff repeatedly refers to Dr. Wunder as a “highly qualified disability examiner,”
(Doc. # 13-1 at 17), the ALJ detailed his reasons for according Dr. Wunder’s opinion only
“some weight.” (Tr. 51). Specifically, the ALJ explained that Dr. Wunder’s assessment
received only “some weight” for several reasons:
After his post-hearing exam of the claimant at the request of the claimant’s
attorney, Dr. Wunder reported the claimant was severely limited to the point
he could stand, walk, and sit for a total of no more than four hours per eighthour workday. On factor limiting the weight assigned to Dr. Wunder’s report
is that he heavily relied upon his clinical findings that are, as noted earlier,
inconsistent with the clinical findings from every other medical provider on
record, including findings from two orthopedic surgeons—one of whom [Dr.
Jacquemin] examined the claimant a week after Dr. Wunder. This included
recording pain behaviors, gait abnormalities, decreased reflexes, and
bilateral straight leg raise findings that are not present on other exams. The
undersigned also notes that Dr. Wunder also appeared to rely heavily on
the claimant’s subjective reports that he did very poorly after his spinal
surgery in mid-2013 despite multiple treatment records stating the claimant
reported near total relief of his back pain and total resolution of his radicular
symptoms for nearly a year following his surgery. In addition, Dr. Wunder’s
opinion statement contains some internal inconsistencies, i.e., he first
reports that the use of a cane is not medically necessary for ambulation and
then shortly thereafter states that the claimant cannot ambulate without a
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wheelchair, walker, cane, or crutches. This decision nevertheless gave Dr.
Wunder’s opinion some weight because the evidence does show some
deterioration in the claimant’s condition since Dr. Sadler reviewed the
record, but not nearly to the extent asserted in Dr. Wunder’s opinion
statement.
(Tr. 51) (internal citations omitted).
This explanation, which highlights external inconsistencies and internal
inconsistencies, is more than sufficient under 20 C.F.R. § 404.1527(d)(2). Therefore, the
Court finds no error in the ALJ’s assessment of Dr. Wunder’s medical opinion.
c.

Dr. Sadler

Dr. Sadler, a non-examining source, conducted a consultative review of Plaintiff’s
medical condition in August 2014. (Tr. 50). Dr. Sadler found that Plaintiff “was limited to
light work with minor postural restrictions and a restriction on his exposure to hazards.”
Id. In his Motion for Summary Judgment, the Plaintiff seems to suggest that the ALJ erred
by relying on Dr. Sadler’s medical opinion because she did not review all of the medical
evidence. (Doc. # 13-1 at 15). That argument is meritless.
First, the ALJ accorded only “some weight” to Dr. Sadler’s opinion. (Tr. 50).
Furthermore, the ALJ explicitly recognized that the Plaintiff’s condition had experienced
“some worsening since Dr. Sadler reviewed the record,” which was supported by
objective evidence of medical imaging, and therefore, the ALJ appropriately discounted
Dr. Sadler’s assessment.

Id.

Although the ALJ determined that such “worsening

merit[ed] further restrictions of the [Plaintiff’s] functioning as described in the residual
functional capacity,” the ALJ concluded that “the record at the hearing level [did] not merit
greater limitation.” (Tr. 50-51). Because the ALJ detailed his reasons for giving Dr.
Sadler’s opinion some weight in accordance with 20 C.F.R. § 404.1527(c), the Court finds

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no error in the ALJ’s weighing of Dr. Sadler’s medical opinion.
2.

The ALJ did not err in assessing Plaintiff’s credibility.

Although relevant to the RFC assessment, a claimant’s description of his or her
symptoms is not enough, on its own, to establish the existence of physical or mental
impairments or disability. SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). When
evaluating a claimant’s symptoms, the ALJ must determine whether there is an underlying
medically determinable impairment that could be reasonably expected to produce the
alleged symptoms. Id. Once that is established, the ALJ must “evaluate the intensity,
persistence, and limiting effects of the individual’s symptoms to determine the extent to
which the symptoms limit the individual’s ability to do basic work activities.” Id.
If the Plaintiff’s complaints regarding the intensity and persistence of his symptoms
are unsupported by objective medical evidence, the ALJ must make a credibility
determination “based on a consideration of the entire case record.” Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (quoting SSR 96-7p, 1996 WL 374186 at
*4). “The entire case record includes any medical signs and lab findings, the claimant’s
own complaints of symptoms, any information provided by the treating physicians and
others, as well as any other relevant evidence contained in the record.” Id. “Consistency
between a claimant’s symptom complaints and the other evidence in the record tends to
support the credibility of the claimant, while inconsistency, although not necessarily
defeating, should have the opposite effect.” Id. at 248.
After making a credibility determination, the ALJ must explain that decision with
enough specificity “to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for the weight.”

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20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at *2. “Blanket assertions that the
claimant is not believable will not pass muster, nor will explanations as to the credibility
which are not consistent with the entire record and the weight of the relevant evidence.”
Rogers, 486 F.3d at 248. Once the ALJ has made the credibility determination, the
reviewing court must give great weight and deference to that conclusion. Id.
While not argued directly, the Plaintiff’s Motion for Summary Judgment expends a
significant amount of time paraphrasing and regurgitating—and occasionally attempting
to supplement—his hearing testimony, and thus, appears to take issue with the ALJ’s
credibility determination. (Doc. # 13-1 at 2-6). In addition, the Plaintiff asserts that he
“vehemently disputes” the contents of Dr. Kakarlapudi’s treatment notes (Doc. # 13-1 at
15-16), which reported that Plaintiff was “doing great with very minimal, if any back pain
and no radicular symptoms.”

(Tr. 48-49).

The Plaintiff also takes issue with the

thoroughness of the ALJ’s questioning at the administrative hearing, claiming that the ALJ
should have provided Plaintiff the opportunity to clear up potential inconsistencies or
misconceptions about Plaintiff’s attempt to go to school and the reasons that plaintiff
switched pain-management practices. (Doc. # 13-1 at 15-16). Any alleged error with the
ALJ’s credibility determination is belied by the record.
At Step Four, the ALJ found that the Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms.” (Tr. 48).
However, the ALJ determined that Plaintiff’s “statements concerning the intensity,
persistence, and limiting effects of [his] symptoms” were not credible because they were
“not entirely consistent with the medical evidence and other evidence in the record.” Id.
The ALJ thoroughly explained why Plaintiff’s symptoms were inconsistent with the

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medical evidence:
While the claimant denied any improvement after his spinal fusion, these
claims are notably inconsistent with the available medical records. The
claimant indeed reported feeling “miserable” with sever back pain prior to
his spinal fusion surgery [on] July 29, 2013. However, the claimant told his
orthopedic surgeon, Dr. Kakarlapudi, that he was doing great with “very
minimal, if any” back pain and no radicular symptoms. Dr. Kakarlapudi
recorded similar statements from the claimant on four separate occasions
between September 11, 2013, and January 22, 2014. The claimant
additionally made similar statements [to] other medical providers during an
emergency room visit on February 5, 2014.
Treatment notes indicate the claimant began complaining of back pain
again in mid-2014, but these reports are similarly inconsistent with
claimant’s allegations in this case. The fre pain management records from
2014 note that the claimant reported some back pain with non-dermatomal
right thigh pain about once per week. The claimant then switched pain
management practices in early 2014 for reasons that are not entirely clear.
When the claimant first met with his new pain management physician, Dr.
Atluri, in January 2015, Dr. Alturi prescribed a conservative pain medication
regimen—5 mg Percocet, twice per day—for reports of back pain radiating
to his left him. Dr. Alturi’s practice then maintained the claimant on the
same conservative medication regiment until at least December 2015. IT
was not until the claimant began complaining of increased pain radiating to
his left hip/thigh in late December 2015 or early 2016 that his medical
provider(s) increased his medication dosage. The claimant also underwent
consultation with a new orthopedic surgeon, Dr. John Jacquemin, who has
recommended the claimant pursue a spinal cord stimulator or a revision
surgery of his fusion surgery due to a suspected non-union of the L5-S1
vertebrae.
Other reports throughout the medical record undermine the claimant’s
allegations that he has been bedridden since the alleged onset date. For
example, the claimant told Dr. Kakarlapudi in January 2014 that he was
“going back to school” and trying to find a new less rigorous job. The
claimant similarly told a nurse from his pain clinic in mid-2014 that he
“recently started class for business management.” Even the claimant’s own
pre-hearing reports conflict with the testimony that he and [his significant
other] offered at the hearing. The claimant, for instance, noted that he
regularly walked around his house throughout the day to avoid getting stiff
in a report[ ] filed in March 2014. The claimant additionally reported that he
would “occasionally go out for a little while,” prepare simple meals, shop for
groceries twice per month, take care of pet dogs, wash some dishes, sit on
his porch on a daily basis, and occasionally visit family and friends.

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In addition to these reports conflicting with the claimant’s testimony, the
objective medical evidence from the treatment record is not entirely
consistent with his claims…
(Tr. 48-49) (internal citations and quotation marks omitted).
As detailed above, the ALJ found that Plaintiff’s activities of daily living and the
objective medical evidence did not comport with Plaintiff’s allegations of pain and
limitation. Therefore, the ALJ concluded that Plaintiff’s statements regarding the intensity,
frequency, and limiting effects of his symptoms were not entirely credible.

Having

reviewed the ALJ’s credibility assessment, which carefully detailed the inconsistencies
between Plaintiff’s daily activities, subjective complaints of pain, and the objective medical
evidence, the Court finds no error.
3.

The ALJ’s RFC findings are supported by substantial evidence.

A RFC is “an administrative assessment of the extent to which an individual’s
medically determinable impairment(s), including any related symptoms, such as pain,
may cause physical or mental limitations or restrictions that may affect his or her capacity
to do work-related physical and mental activities.” SSR 96-8p, 61 Fed. Reg. 34474,
34475 (July 2, 1996). Stated another way, the RFC is “what an individual can still do
despite his or her limitations.” Id. “In assessing the total limiting effects of [the claimant’s]
impairment(s) and any related symptoms, [the ALJ] will consider all of the medical and
nonmedical evidence” in the record. 20 C.F.R. § 404.1545(e). The ALJ is only required
to incorporate those limitations that he finds credible in the RFC assessment. Irvin v. Soc.
Sec. Admin., 573 F. App’x 498, 502 (6th Cir. 2014) (citing Casey v. Sec’y of Health &
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)).

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The Plaintiff generally complains that the ALJ’s RFC determination is not
supported by substantial evidence. (Doc. # 13-1 at ). In support of this vague complaint,
the Plaintiff advances two arguments. Each argument will be address in turn.
First, the Plaintiff suggests that it is easy to “cherry pick some inconsistencies” in
any voluminous medical record and “use that against a claimant.” (Doc. # 13-1 at 17).
Id. at 13. This argument amounts to an allegation that the ALJ engaged in selective
inclusion of certain evidence to support his RFC finding. Such an “allegation is seldom
successful,” however, “because crediting it would require a court to re-weigh record
evidence.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014). That is
not the role of this Court. “When deciding under 42 USC § 405(g) whether substantial
evidence supports the ALJ’s decision, [courts] do not try the case de novo, resolve
conflicts in evidence, or decide questions of credibility.” Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).
Despite the “quite deferential” standard of review, the ALJ must still make all
determinations “based upon the record in its entirety.” Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 249 (6th Cir. 2007). When constructing a claimant’s RFC, the ALJ must
take into account all relevant medical and other evidence. 20 C.F.R. § 404.945(3).
Assessing the record as a whole “helps to ensure that the focus in evaluating an
application does not unduly concentrate on one single aspect of the claimant’s history, if
that one aspect does not reasonably portray the reality of the claimant’s circumstances.”
Rogers, 486 F.3d at 249. If the ALJ examined the record as a whole and the ALJ’s
decision is supported by substantial evidence, then this Court must affirm the ALJ’s
decision, even if the Court might have decided the case differently. Listenbee, 846 F.2d

15

at 349.
Here, the ALJ took all relevant medical evidence into account.

The ALJ

methodically examined the entirety of the record when assessing Plaintiff’s RFC. (Tr. 4752). The ALJ explained the guidelines for evaluating Plaintiff’s symptoms and then
detailed his reasoning for concluding that Plaintiff’s subjective complaints were not
entirely credible. (Tr. 48-50). The ALJ detailed Plaintiff’s medical history and evaluated
all objective medical evidence and explained his reasons for weighing the medical-opinion
testimony of the relevant medical sources.

(Tr. 48-52).

The ALJ also considered

Plaintiff’s work history and his reported activities of daily living. Id.
The Plaintiff points to no helpful evidence that the ALJ ignored.3 While the ALJ
weighed the evidence contrary to how the Plaintiff preferred, the ALJ did not “fail[ ] to
mention” or “analyze” the “evidence in the record.” Minor v. Comm’r of Soc. Sec., 513 F.
App’x 417, 436 (6th Cir. 2013). Thus, the ALJ did not engage in any type of improper
cherry-picking. Instead, he properly considered the record as a whole. Accordingly, the
Court finds no error in the scope of the ALJ’s analysis.
Second, the Plaintiff claims that “there is only one objective medical conclusion
supported by substantial evidence, that being that [Plaintiff] had a non-union of his
vertebrae as a result of the first surgery” and that the ALJ failed to accept that “undisputed
evidence.” (Doc. # 13-1 at 14). Presumably, Plaintiff is arguing that the diagnosis of a
non-union required the ALJ to find that he was disabled. That argument, however,
amounts to a request that the Court conduct a de novo review of the record, a task far
beyond the Court’s limited role in determining whether the ALJ’s finding is supported by

3

Again, Plaintiff’s allegation that the ALJ ignored his non-union diagnosis is not supported by the
record. (Tr. 49-50 at n.7, 8).

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substantial evidence. See Roberts v. Astrue, No. 1:09-cv-1518, 2010 WL 2342492, at *9
(N.D. Ohio June 9, 2010). Again, an administrative decision is not subject to reversal
merely because substantial evidence would have supported the opposite conclusion.
Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996). Substantial evidence exists to
support the ALJ’s decision, and the Court’s review must stop there.
4.

There is no new, material evidence that requires the case to be
remanded.

Typically, new evidence forms the basis for a new application, but is irrelevant to
the Court’s substantial evidence review.

The Sixth Circuit has held that “evidence

submitted to the Appeals Council after the ALJ’s decision cannot be considered part of
the record for purposes of substantial evidence review.” Miller v. Comm’r of Soc. Sec.,
811 F.3d 825, 838 (6th Cir. 2016) (citing Foster v. Halter, 279 F.3d 348, 357 (6th Cir.
2001)). Accordingly, the Court is “not in the position to consider new evidence in ‘deciding
whether to uphold, modify, or reverse the ALJ’s decision.’” Miller, 811 F.3d at 839 (citing
Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). However, “consideration
of new evidence may be appropriate on remand if the claimant can show that the new
evidence ‘is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.’” Miller, 811 F.3d at 839 (citing 42 U.S.C.
§ 405(g)). Although Plaintiff fails to specifically request remand pursuant to Sentence Six
of § 405(g), the Court will construe his arguments regarding new evidence as such.4

4

Plaintiff’s other arguments, which concerned whether substantial evidence supported the ALJ’s
decision, sought remand under Sentence Four of § 405(g). “Section 405(g) plainly authorizes two types of
remand: (1) a post-judgment remand in conjunction with a decision affirming, modifying, or reversing the
decision of the Secretary (a sentence-four remand); and (2) a pre-judgment remand for consideration of
new and material evidence that for good cause was not previously presented to the Secretary (a sentencesix remand).” Faucher v. Sec’y Health & Hum. Serv., 17 F.3d 171, 174 (6th Cir. 1994); see also Melkonyan
v. Sullivan, 501 U.S. 89, 100 (1991) (concluding that Congress’ intended to limit the district court’s authority
to enter remand orders to these two types). While a Sentence Four remand divests the district court of

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Sentence Six addresses situations “where a claimant submits new evidence that
was not presented to the ALJ but would alter the ALJ’s ultimate decision.” Courter v.
Comm’r of Soc. Sec., 479 F. App’x 713, 725 (6th Cir. 2012). Sentence Six states:
“The court … may at any time order additional evidence to be taken before
the Commissioner of Social Security, but only upon a showing that there is
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; and the
Commissioner of Social Security shall, after the case is remanded, and after
hearing such additional evidence if so ordered, modify or affirm the
Commissioner’s findings of fact or the Commissioner’s decision, or both…”
42 U.S.C. § 405(g). “[T]he burden of showing that a remand is appropriate is on the
claimant.” Foster, 279 F.3d at 357 (citing Oliver v. Sec’y of Health & Human Servs., 804
F.2d 964, 966 (6th Cir. 1986)).
In his Motion for Summary Judgment, Plaintiff claims that the Appeals Council
erred by refusing to consider evidence submitted subsequent to the hearing, which
“provided further corroboration that there was a non-union of the spinal vertebrae even
though the evidence was material and not available at the time the hearing took place.”
(Doc. # 13-1 at 18).
Plaintiff’s evidence does not warrant a remand under Sentence Six. Evidence is
“new only if it was not in existence or available to the claimant at the time of the
administrative proceeding.” Foster, 279 F.3d at 357. Because the medical records came
into existence after the administrative hearing, the evidence is “new” and “good cause”
exists to excuse Plaintiff’s “failure to acquire and present the evidence for inclusion in the
hearing before the ALJ.” Id. Nevertheless, even though the evidence is “new,” it is not

jurisdiction “except to the extent necessary to resolve the application of attorney’s fees,” the court retains
jurisdiction when remanding the case pursuant to Sentence Six. See Booth v. Astrue, No. 11-cv-191-JBC,
2012 WL 3027112, at *3 (E.D. Ky. July 24, 2012) (citing Smith v. Halter, 246 F.3d 1120 (8th Cir. 2001));
Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 841 (6th Cir. 2006).

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“material.” “[E]vidence is ‘material’ only if there is ‘a reasonable probability that the
Secretary would have reached a different disposition of the disability claim if presented
with the new evidence.’” Id. (quoting Willis v. Sec’y of Health & Human Servs., 727 F.2d
551, 554 (1984)); see also Bass, 499 F.3d at 513.
Plaintiff claims that the “evidence is material since it shows the further
corroboration that [Plaintiff] did have a non-union that took place after the first surgery.”
(Doc. # 13-1 at 18). But, evidence regarding the possible non-union was already in the
record at the time of the ALJ’s hearing. In fact, the ALJ referenced the alleged non-union
twice in his decision. (Tr. 49, 50 n.7). The value of the new evidence, according to
Plaintiff, is that it is “corroborative.” (Doc. # 13-1 at 18). “[M]erely cumulative” evidence,
however, is “not ‘material’ within the meaning of 42 U.S.C. § 405(g) and contain[s] nothing
that would cause the ALJ to change his opinion.” Young v. Sec’y of Health & Human
Servs., 925 F.2d 146, 149 (6th Cir. 1990). “Therefore, a remand to consider” this new,
corroborative evidence is “unnecessary” because there is not a significant possibility that
the additional evidence would change the Commissioner’s decision. Id.
III.

CONCLUSION
For the reasons stated herein, the Court concludes that the ALJ’s finding that

Plaintiff was not disabled for purposes of the Social Security Act was supported by
substantial evidence. Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

The decision of the Commissioner is found to be supported by substantial

evidence and is hereby AFFIRMED;
(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 13) is hereby DENIED;

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(3)

Defendant’s Motion for Summary Judgment (Doc. # 18) is hereby

GRANTED; and
(4)

A Judgment in favor of Defendant Commissioner will be entered

contemporaneously herewith.
This 25th day of June, 2018.

K:\DATA\SocialSecurity\MOOs\Covington\17-160 Ransom MOO.docx

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