Gressler v. Commissioner of Social Security
OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
TERRY ALLEN GRESSLER,
Case No. 1:16-cv-987
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
Plaintiff brings this action under 42 U.S.C. § 405(g) seeking judicial review of a final
decision by the Commissioner of the Social Security Administration (Commissioner). Plaintiff
seeks review of the Commissioner’s decision denying his claim for disability insurance benefits
(DIB) under Title II of the Social Security Act. Section 405(g) limits the Court to a review of the
administrative record, and provides that if the Commissioner’s decision is supported by substantial
evidence, it shall be conclusive.
STANDARD OF REVIEW
The scope of judicial review in a social security case is limited to determining
whether the Commissioner applied the proper legal standards in making her decision and whether
there exists in the record substantial evidence supporting that decision. See Brainard v. Sec’y of
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo
review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and her findings are conclusive provided they
are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was thirty-nine years of age on the date of the ALJ’s decision. (PageID.85,
124.) He completed highschool and was previously employed as a machinist and as a computer
numerically controlled operator. (PageID.86, 111.) Plaintiff applied for benefits on February 4,
2014, alleging disability beginning June 20, 2013, due to a back injury. (PageID.124, 191–192.)
Plaintiff’s application was denied on June 6, 2014, and Plaintiff subsequently requested a hearing
before an ALJ. (PageID.140–145.) On June 29, 2015, Plaintiff appeared with his counsel before
ALJ Donna J. Grit for an administrative hearing at which time Plaintiff and a vocational expert (VE)
both testified. (PageID.78–116.) On July 17, 2015, the ALJ issued an unfavorable written decision
that concluded Plaintiff was not disabled. (PageID.58–77.) On July 8, 2016, the Appeals Council
declined to review the ALJ’s decision, making it the Commissioner’s final decision in the matter.
(PageID.25–31.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. § 404.1520(a-f).1 If the Commissioner can make a dispositive finding at
any point in the review, no further finding is required. See 20 C.F.R. § 404.1520(a). The regulations
also provide that if a claimant suffers from a nonexertional impairment as well as an exertional
impairment, both are considered in determining the claimant’s residual functional capacity (RFC).
See 20 C.F.R. § 404.1545.
Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));
An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. § 404.1520(d));
If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 404.1520(e));
If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed. (20 C.F.R. § 404.1520(f)).
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Grit determined that Plaintiff’s claim failed at the fifth step of the evaluation.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity since June 20,
2013, the alleged disability onset date. (PageID.63.) At step two, the ALJ determined Plaintiff had
the severe impairments of status post epidural and muscular abscess, status post lumbar
decompressive surgery, epidural fibrosis, anxiety, and depression. (PageID.64.) At the third step,
the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or
equaled the requirements of the Listing of Impairments. (PageID.64–66.) At the fourth step, the
ALJ determined Plaintiff retained the RFC based on all the impairments:
to perform sedentary work as defined in 20 CFR 404.1567(a) except
for the following non-exertional limitations. The claimant is unable
to perform crawling, kneeling, and climbing of ropes, ladders, and
scaffolds. He can perform occasional stooping, crouching, and
balancing. The claimant requires a sit/stand option that allows him
to change from sit to stand and stand to sit every 30 minutes. The
claimant can have no more than occasional exposure to vibration or
extremes of cold. He is unable to work at unprotected heights or with
dangerous moving machinery. The claimant can understand,
remember, and perform simple tasks and make simple decisions. He
can adapt to routine changes in the workplace.
(PageID.66.) Continuing with the fourth step, the ALJ found that Plaintiff was unable to perform
any of his past relevant work. (PageID.72.) At the fifth step, the ALJ questioned the VE to
determine whether a significant number of jobs exist in the economy that Plaintiff could perform
given his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could
perform other work as an inspector (1,100 regional and 52,000 national positions), as a final
assembler (1,200 regional and 54,000 national positions), and as a surveillance system monitor
(1,000 regional and 50,000 national positions.) (PageID.113–114.) Based on this record, the ALJ
found that Plaintiff was capable of making a successful adjustment to work that exists in significant
numbers in the national economy. (PageID.73.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from June 20, 2013,
the alleged disability onset date, through July 17, 2015. (PageID.73.)
The ALJ’s Evaluation of the Opinion Evidence.
In his first claim of error, Plaintiff contends the ALJ failed to properly apply the
treating physician rule to the opinion of Dr. William Baer. Specifically, Plaintiff contends that the
ALJ failed to provide good reasons for assigning less than controlling weight to the opinion. For
the reasons laid out below, the Court disagrees.
Dr. Baer’s Opinion.
In support of his application for benefits, Plaintiff submitted a sworn statement from
Dr. William Baer, his treating physician. (PageID.796.) In his statement, Dr. Baer reported he had
been treating Plaintiff for the last twelve years. In June 2013, Plaintiff developed a lumbar abscess
with symptoms of back pain that was refractory to over the counter medications. (PageID.798.)
Plaintiff was sent for an MRI but complications arose because it was too uncomfortable for Plaintiff
to lie on a table. Plaintiff went to the ER and was able to undergo testing. Those tests revealed an
infected abscess along the spinal tract that went from Plaintiff’s last thoracic vertebrae to the second
sacral vertebrae. (Id. at PageID.799.) The abscess had also migrated to the adjacent musculature.
(PageID.800.) Plaintiff subsequently underwent surgery from the T-11 through S-2 vertebrae.
(PageID.801.) Dr. Baer noted that as a result of the surgery there was a “very real” likelihood that
scar tissue from the surgery would eventually encase and potentially entrap or compromise
Plaintiff’s nerve roots. (PageID.801-802.) In fact, Plaintiff underwent an MRI in January 2014 that
found evidence of nerve root encasement. (PageID.803.) The MRI showed the abscesses had
resolved, but revealed extensive surgical change and scar tissue showing nerve root entrapment at
L4-5 and L5-S1. (PageID.803.)
Dr. Baer further stated that after surgery, Plaintiff attempted to return to work for two
to four hours a week, but was unable to tolerate it. (PageID.802.) Additional surgery was not
recommended because it would create additional inflammation and scar tissue. (PageID.804.)
Because of these entrapments, the doctor stated that Plaintiff “[m]ost definitely” was experiencing
pain. (PageID.804.) The doctor had tried various medications to treat this pain, with limited
Plaintiff’s attorney then asked the doctor several questions regarding Plaintiff’s
functional limitations. (PageID.805.) Dr Baer responded that Plaintiff could not return to his past
work because of his refractory pain and the increased possibility of sustaining further injury.
(PageID.805.) Regarding Plaintiff’s ability to lift or carry on a regular basis, the doctor responding
that anything over five to ten pounds was not an option. (PageID.806.) Plaintiff’s attorney then
asked whether Plaintiff would be capable of performing a range of sedentary work, which he defined
as sitting most of the day with lifting up to ten pounds and only occasional walking or standing. An
individual would further be unable to miss more than two days of work a month and would have to
be on task no less than ninety percent of the time. (PageID.806.) The doctor responded that it
would be “awfully difficult” for Plaintiff to do this work. He noted that Plaintiff could not sit or
stand for any extended period of time, which he defined as being as short as fifteen to thirty minutes.
(PageID.807.) Furthermore, Plaintiff’s ability to concentrate would be very difficult because of his
pain, and as such Plaintiff could not work more than two to four hours. (PageID.807.) The doctor
did not expect Plaintiff’s condition to improve. (PageID.807.)
The Treating Physician Doctrine Generally
By way of background, the treating physician doctrine recognizes that medical
professionals who have a long history of caring for a claimant and his maladies generally possess
significant insight into his medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.
1994). An ALJ must, therefore, give controlling weight to the opinion of a treating physician if: (1)
the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and (2) the opinion “is not inconsistent with the other substantial evidence in the case
record.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375–76 (6th Cir. 2013) (quoting 20 C.F.R.
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health & Human Servs., 1991 WL 229979 at *2
(6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Human Servs., 839 F.2d 232, 235 n.1
(6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is unsupported
by the medical record, merely states a conclusion, or is contradicted by substantial medical evidence.
See Cohen, 964 F.2d at 528; Miller, 1991 WL 229979 at *2 (citing Shavers, 839 F.2d at 235 n.1);
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286–87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must provide “good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
“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.” Id. This requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “‘are not well-supported by any objective findings’ and are ‘inconsistent with
other credible evidence’” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Id. at 376–77.
If the ALJ affords less than controlling weight to a treating physician’s opinion, the
ALJ must still determine the weight to be afforded such. Gayheart, 710 F.3d at 376. In doing so,
the ALJ must consider the following factors: (1) length of the treatment relationship and frequency
of the examination; (2) nature and extent of the treatment relationship; (3) supportability of the
opinion; (4) consistency of the opinoin with the record as a whole; (5) the specialization of the
treating source; and (6) other relevant factors. Id. (citing 20 C.F.R. § 404.1527). While the ALJ is
not required to explicitly discuss each of these factors, the record must nevertheless reflect that the
ALJ considered those factors relevant to his assessment. See, e.g., Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007); Undheim v. Barnhart, 214 F. App’x 448, 450 (5th Cir. 2007).
Analysis of the ALJ’s Decision.
After summarizing Dr. Baer’s opinion, the ALJ gave it partial weight. (PageID.72.)
While she agreed with the doctor that Plaintiff could not return to his past work, the ALJ found the
doctor’s other opinions all were inconsistent with the doctor’s treatment notes and other record
evidence. In arguing that the ALJ failed to provide good reasons for this determination, Plaintiff
notes three things: Dr. Baer had years of experience in treating Plaintiff, the doctor referenced
objective studies in rendering his opinion, and Plaintiff continues to experience symptoms.
(PageID.895.) None of these considerations warrant relief. The experience and treatment history
of Dr. Baer is not in question. The ALJ clearly understood the doctor qualified as a treating
physician. (PageID.71.) Nor did the ALJ discount the opinion because the doctor had failed to
support his opinions with citations to the record. (PageID.71.) Rather, the ALJ found that the
doctor’s opinions were inconsistent with the doctor’s own findings. While it is plain that Plaintiff
continues to experience symptoms from his impairments, the ALJ’s determination that the record
is inconsistent with the extreme limitations offered by Dr. Baer is well supported.
After undergoing surgery on his back Plaintiff began to improve. (PageID.303.) He
was discharged in good condition with instructions for no bending or twisting, and no lifting over
ten pounds. He further could not tolerate any sitting for longer than thirty minutes. (PageID.304.)
Plaintiff was instructed to follow up with his surgeon, Dr. John Keller, in two weeks. (PageID.304.)
At that July 17, 2013, visit, Plaintiff was described as doing “fairly well” though he still had a fair
amount of back pain. (PageID.395.) Because there were some continuing issues with his wounds,
Plaintiff was referred to the wound clinic for treatment, which Dr. Keller thought would help aid
Plaintiff’s recovery and reduce his pain. (PageID.394–395.) It appears that Dr. Keller was correct.
At his first visit with the clinic, Plaintiff complained of severe pain when his wound was
manipulated. (PageID.487.) But he had a normal gait, and his extremity muscle strength was
grossly intact and equal. (PageID.490.) By July 31, 2013, Plaintiff reported he was doing well and
was in much less discomfort. (PageID.555.) A month later, on August 22, 2013, Plaintiff’s wife
stated Plaintiff was almost asymptomatic and neurologically intact, and his wound was healing
nicely. (PageID.439.) Plaintiff himself denied any pain. (PageID.636.) This continued through the
following month, where it was noted that there was no pain present. (PageID.704.) On October 9,
2013, Plaintiff was discharged from the wound clinic because he had achieved complete healing.
Dr. Keller subsequently referred Plaintiff to Dr. James Ellis for physical
At Plaintiff’s first visit with Dr. Ellis, on October 11, 2013, he complained of residual
back pain. But Plaintiff expressed a desire to return to a light duty job in two or three weeks. Dr.
Ellis noted that Plaintiff was able to sit for about twenty minutes without any problem. Though he
was stiff, he was also able to get up and walk without any difficulty. He could heal and toe walk,
but had difficulty doing even a partial squat. (PageID.760.) The doctor ordered a course of physical
therapy. (PageID.760.) On November 1, 2013, both Plaintiff’s pain and functional use were
He felt seventy percent better and wanted to return to work.
(PageID.762.) He was now able to squat without any difficulty and had a negative straight leg raise
test. (PageID.762.) Plaintiff was released to work four hours a day with a ten pound lift restriction.
It was noted that after two weeks Plaintiff would be able to increase his hours and weight limits.
(PageID.763.) Two weeks later, however, while Plaintiff report his symptoms had improved, he also
noted they had amplified. (PageID.764.)
The following year, during January 2014, Plaintiff reported his pain was worse and
his functional ability had decreased. He was still doing his light duty job, but only two hours a day.
(PageID.766.) But a physical examination demonstrated he still had full hip knee and ankle range
of motion, as well as a negative straight leg raise test. (PageID.767.) An MRI was ordered and
Plaintiff’s prescriptions were adjusted. The MRI revealed mild epidural fibrosis in the recesses of
the L4-5 vertebrae that abutted the traversing L5 nerve roots and, in the recess at the L5-S1 level,
it abutted and traversed the right S1 nerve foot. There was moderate right L4-L5 nerual foraminal
On January 29, 2014, Plaintiff reported his legs were “a lot better” but complained
of constant back pain. It was noted he was working two hours a day. But, rather than the light duty
restrictions he had been given, he described he was doing work that was “quite heavy” and
unpredictable. (PageID.769.) Plaintiff’s medications were adjusted and another course of therapy
was ordered. (PageID.770.)
In March, Plaintiff complained his functional use had not changed
and he was not any better. He reported he was working four hours a day and that, despite his
restrictions, he was frequently pushing one hundred pound weights. (PageID.772.) Plaintiff had
increased pain with flexion and extension and could bend only to the mid knee. He still, however,
had a negative straight leg raise test and full strength. (PageID.773.) On March 31, 2014, Plaintiff
reported his pain was worse. The therapist found that there were no pain behaviors, and his strength
had increased, but he did have intensified pain. (PageID.775.) That said, Plaintiff stood during the
examination and was able to move around freely. Dr. Ellis noted it was unlikely Plaintiff would ever
return to his current job and stated that he could see Plaintiff on an as needed basis. (PageID.776.)
Plaintiff underwent a consultative examination with Dr. Grant Hyatt, an orthopaedic
surgeon, on April 14, 2014. After conducting a physical examination, Dr. Hyatt noted that
Plaintiff’s gait and stance reflected an antalgic component relative to weightbearing on the right
lower extremity. (PageID.822.) There was tenderness to palpation over the paraspinal columns, and
limited range of motion was noted. (PageID.822.) Dr. Hyatt concluded that Plaintiff was restricted
to a lift/carry limit of twenty to twenty-five pounds, should avoid repetitive bending, twisting and
stooping and that he should be able to change positions “from time to time.” (PageID.824-825.)
He also concluded that Plaintiff had not reached maximum medical improvement. (PageID.825.)
At bottom, these records are consistent with the ALJ’s determination that Plaintiff
could not return to his past relevant work. Though he purported to return to “light duty” work,
Plaintiff does not appear to have followed those restrictions and in fact performed heavy work, albeit
not for a full eight-hour workday. Plaintiff’s complaints of increased pain must be viewed through
this lens. Clearly, Plaintiff is unable to do such heavy work. But those records do not support Dr.
Baer’s opinions that Plaintiff could not do sedentary work. Plaintiff’s wound had completely healed,
and several objective tests returned normal results. These are consistent with, not contrary to, the
ALJ’s decision. Accordingly, substantial evidence supports the ALJ’s observation that Dr. Baer’s
extreme limitations were inconsistent with the objective record. Plaintiff’s first claim of error is
At the administrative hearing, Plaintiff alleged that he was impaired to an extent far
greater than as ultimately recognized by the ALJ. After summarizing Plaintiff’s arguments, the ALJ
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this
(PageID.62.) Plaintiff notes that the above language is similar to that used across many ALJ
decisions and further claims that by using such “boilerplate” language to discount his credibility,
the ALJ’s decision is unsupported by substantial evidence. Plaintiff’s argument is without merit.
Meaningful appellate review of an ALJ’s credibility determination requires more
than a blanket assertion by an ALJ that “the claimant is not believable.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 248 (6th Cir. 2007). Put differently, the ALJ’s credibility evaluation “must be
sufficiently specific 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 that weight.” Id. The thrust of
Plaintiff’s claim is that the above quoted language is too vague to discount his credibility. If all the
ALJ had done was to provide a summation of the evidence from this case and then discount
Plaintiff’s allegations using the above paragraph, as Plaintiff appears to contend is the case, Plaintiff
may well have a valid claim. See Gonzalez v. Comm’r of Soc. Sec., No. 1:06–CV–687, 2008 WL
584927, at *6 (W.D. Mich. Jan. 17, 2008). But that is not what the ALJ did here, and the mere use
of this language to introduce a larger credibility discussion is not reversible error. Indeed, as the
Sixth Circuit has recognized, the “chief concern with the popularity [of boilerplate language] is the
risk that an ALJ will mistakenly believe it sufficient to explain a credibility finding, as opposed to
merely introducing or summarizing one.” Cox v. Comm’r of Soc. Sec., 615 F. App’x 254, 260 (6th
Cir. 2015) (emphasis in original). In this case, the ALJ’s discussion went far beyond the use of the
above language. Throughout her decision, the ALJ found inconsistencies between Plaintiff’s
allegations and the objective record evidence. (PageID.67–68.) The ALJ also found Plaintiff’s
testimony was inconsistent with the record regarding his activities of daily living. (PageID.70.) The
ALJ then concluded:
While the evidence also indicates the claimant has a good work
history, the longitudinal record is inconsistent with the extent of his
alleged symptoms and limitations. The claimant has had ongoing
pain complaints, but these complaints are not supported by the
objective evidence of record. The claimant has had generally normal
objective examination findings and while there is some mental health
symptoms involved as well, the evidence does not indicate he would
be unable to perform simple tasks, make simple decisions, and adapt
to routine changes.
(PageID.70.) Thus it is plain that the ALJ provided several reasons for finding Plaintiff’s
allegations were less than fully credible. These reasons were specific enough to permit the Court
to undertake a meaningful review. Furthermore, the reasons articulated by the ALJ are supported
by substantial evidence and Plaintiff has not alleged otherwise. Accordingly, this claim fails.
Sentence Six Remand
As part of his request to obtain review of the ALJ’s decision, Plaintiff submitted to
the Appeals Council additional evidence which was not presented to the ALJ. The Appeals Council
received the evidence into the record and considered it before declining to review the ALJ’s
determination. This Court, however, is precluded from considering such material. In Cline v.
Comm’r of Soc. Sec., 96 F.3d 146 (6th Cir. 1996), the Sixth Circuit indicated that where the Appeals
Council considers new evidence that was not before the ALJ, but nonetheless declines to review the
ALJ’s determination, the district court cannot consider such evidence when adjudicating the
claimant’s appeal of the ALJ’s determination. Id. at 148; see also Bass v. McMahon, 499 F.3d 506,
512–13 (6th Cir. 2007) (quoting Cline, 96 F.3d at 148).
If Plaintiff can demonstrate, however, that this evidence is new and material, and that
good cause existed for not presenting it in the prior proceeding, the Court can remand the case for
further proceedings during which this new evidence can be considered. Cline, 96 F.3d at 148. To
satisfy the materiality requirement, Plaintiff must show that there exists a reasonable probability that
the Commissioner would have reached a different result if presented with the new evidence.
Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). Plaintiff bears the
burden of making these showings. See Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477,
483 (6th Cir. 2006).
Despite referencing the above authority, Plaintiff fails to satisfy his burden of
showing the evidence was new, material, and that good cause existed for failing to submit it to the
ALJ. Instead, Plaintiff notes that the evidence dated after the ALJ’s decision documents a
“worsening” of Plaintiff’s back condition. (PageID.897.) To the extent Plaintiff argues his
condition has worsened since the ALJ’s decision, his recourse is in the filing of a new application
for benefits, not a sentence six remand. Plaintiff’s request for a sentence six remand is therefore
For the reasons articulated herein, the Court concludes that the ALJ’s decision is
supported by substantial evidence. Accordingly, the Commissioner’s decision is AFFIRMED.
A separate judgment shall issue.
Dated: August 7, 2017
/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE
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