Graley v. Commissioner of Social Security

Filing 20

Opinion and Order signed by Judge James S. Gwin on 6/26/15 setting forth the grounds for adopting the Report and Recommendation of the Magistrate Judge, overruling plaintiff's objections and dismissal of the complaint. (Related Docs. 1 , 17 , 18 , 19 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
THOMAS A. GRALEY,
:
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN,
:
ACTING COMMISSIONER OF SOCIAL :
SECURITY,
:
:
Defendant.
:
:
-------------------------------------------------------

CASE NO. 1:14-CV-00728

OPINION & ORDER
[Resolving Docs. 1, 18]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Thomas Graley seeks review of the Social Security Administration’s (“SSA”) denial
of his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”).1/ Graley says that “new and material evidence” requires a remand to the SSA, and that the
Administrative Law Judge’s (“ALJ”) decision was not supported by substantial evidence.2/
Magistrate Judge Limbert recommended that Graley’s claim be dismissed with prejudice.3/
Graley has objected to Magistrate Judge Limbert’s Report and Recommendation (“R&R”).4/ For the
following reasons, the Court ADOPTS the R&R, OVERRULES Plaintiff’s objections, and
DISMISSES the complaint with prejudice.

1/

Doc. 1.
Doc. 13.
3/
Doc. 17.
4/
Doc. 18. Defendant has also filed a response to these objections. See Doc. 19.
2/

-1-

Case No. 1:14-cv-00728
Gwin, J.
I. Background
On March 19, 2012, Plaintiff Graley filed for DIB and SSI, claiming a disability onset date
of October 15, 2011.5/ After the SSA denied Graley’s claims, he sought and received a hearing from
an ALJ. The ALJ found that Graley had the following severe impairments: degenerative disc disease
of the cervical spine; obstructive sleep apnea; headaches/migraines; diverticulitis; hypertension; left
shoulder degenerative joint disease; anxiety disorder, NOS vs. post-traumatic stress disorder; major
depressive disorder; and cannabis abuse.6/
Nonetheless, on February 21, 2013, the ALJ concluded that Graley was not disabled. The
ALJ acknowledged that Graley’s impairments could cause the symptoms he described.7/ However,
the ALJ found Graley’s claims regarding the intensity, severity, persistence, and limiting effects of
his symptoms to be inconsistent with the objective medical evidence.8/ As part of the record, Graley
submitted a Department of Veterans Affairs (“VA”) determination that he was 40% disabled as of
2007. The ALJ gave this determination “minimal weight” because Plaintiff worked at levels “greatly
surpassing the limit of substantial gainful activity” until late 2011.9/
The ALJ ultimately determined that Graley had the residual functional capacity to perform
“light work” with some restrictions on overhead reaching. The ALJ proceeded to determine if there
were significant jobs in the economy that Graley could work, given his restrictions. The Vocational

5/

Doc. 11 at 215-29.
Id. at 18.
7/
Id. at 20. These symptoms included: back and neck pain, an inability to reach overhead or lift more than fifty
pounds, sleeping for long periods, bouts of diarrhea five to six times a day, lack of motivation and concentration, and
difficulty caring for himself. Id. at 39-51.
8/
Id. at 4-11.
9/
Id. at 24.
6/

-2-

Case No. 1:14-cv-00728
Gwin, J.
Expert (“VE”) testified that an individual with Graley’s age, work-experience, education, and
residual functional capacity with the stated restrictions could perform jobs in significant numbers
in both the state and national economy.10/
On August 12, 2013, six months after the ALJ issued her decision, the VA determined that
Plaintiff had a 100% disability rating with an onset date of February 29, 2012.11/ Plaintiff sought to
include this finding as evidence when the SSA’s Appeals Council was reviewing the ALJ’s decision.
The Appeals Council added the VA determination to the record, but upheld the ALJ’s decision.12/
Plaintiff sought judicial review of the SSA’s decision. Magistrate Judge Limbert
recommended that Plaintiff’s complaint be dismissed in full.13/ Plaintiff objects to the Magistrate
Judge’s recommendations on three grounds. First, that Magistrate Judge Limbert erred by finding
that the VA disability rating was not “new and material” evidence.14/ Second, that Magistrate Judge
Limbert incorrectly concluded that the ALJ had properly assessed Plaintiff’s credibility.15/ Third, that
Magistrate Judge Limbert erred because he found that the hypothetical questions the ALJ posed to
the VE accurately portrayed Graley’s limitations.16/
II. Legal Standards
The Federal Magistrates Act requires a district court to conduct de novo review of the

10/

Id. at 25-26.
Id. at 744.
12/
Id. at 6.
13/
Doc. 17.
14/
Doc. 18 at 1.
15/
Id. at 4.
16/
Id. at 5.
11/

-3-

Case No. 1:14-cv-00728
Gwin, J.
claimant’s objections to a report and recommendation.17/ The Social Security Act provides for
judicial review of any final determination of the Commissioner.18/ But, “findings of the
Commissioner based on substantial evidence, shall be conclusive.”19/ Substantial evidence is
evidence that a reasonable mind would accept as adequate to support the challenged conclusion.20/
“If the ALJ’s decision is supported by substantial evidence, then reversal would not be warranted
even if substantial evidence would support the opposite conclusion.”21/
Even so, a district 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.”22/ Evidence is “new” if it was not in existence or available to the claimant at the
time of the administrative proceeding.23/ Evidence is “material” if there is a reasonable probability
that a different result would have been reached had it been introduced at the hearing.24/ “Good cause”
is demonstrated by “a reasonable justification for the failure to acquire and present the evidence for
inclusion in the hearing before the ALJ.”25/
III. Discussion

17/

28 U.S.C. § 636(b)(1).
42 U.S.C. § 405(g).
19/
Id.
20/
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).
21/
Bass v. Comm’r of Soc. Sec., 499 F.3d 506, 509 (6th Cir. 2007).
22/
42 U.S.C. 405(g) (commonly referred to as a Sentence Six Remand).
23/
Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483-84 (6th Cir. 2006).
24/
Id. at 484.
25/
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (citing Willis v. Sec’y for Health & Human Servs., 727
F.2d 551, 554 (6th Cir. 1984) (per curiam)).
18/

-4-

Case No. 1:14-cv-00728
Gwin, J.
A. New and Material Evidence
Plaintiff Graley objects to Magistrate Judge Limbert’s recommendation that Graley’s 100%
VA disability rating should not be considered new and material evidence. In particular, Graley argues
that Magistrate Judge Limbert’s reliance on Deloge v. Commissioner of Social Security26/ was
improper because the facts in Graley’s case are so different that Deloge ought not control.
In Deloge, the Sixth Circuit found that a social security claimant was not entitled to the
remand of his claim due to a subsequent VA determination that he was 100% disabled. The Sixth
Circuit held that “[t]he fact of a subsequent favorable assessment is not itself new and material
evidence under § 405(g); only the medical evidence that supported the favorable assessment can
establish a claimant’s right to remand.”27/
Graley is correct that the facts in his case are somewhat different. In Deloge, the SSA denied
the claimant’s application in 2005. The claimant received a 100% VA disability rating three years
later.26/ In Graley’s case, the VA and the ALJ were evaluating Graley’s disability at the same time.
Though the VA issued its finding after the ALJ made her decision on February 21, 2013, the VA
found that the onset of Graley’s disability was February 29, 2012. In short, the VA found that Graley
was 100% disabled for at least some months in which the ALJ found him to have no disability. But
this is not enough to satisfy the “new and material” standard.
The VA determination is not binding on the Commissioner.27/ Furthermore, the Sixth Circuit
“has not set forth a specific standard regarding the weight the Commissioner should afford a 100%

26/

540 Fed. App’x 517 (6th Cir. 2013) (per curiam).
Id. at 519.
26/
Id. at 518.
27/
20 C.F.R. § 404.1504; Ritchie v. Comm’r of Soc. Sec., 540 Fed. App’x 508, 510 (6th Cir. 2013).
27/

-5-

Case No. 1:14-cv-00728
Gwin, J.
disability determination by the VA.”28/ Therefore, the ALJ could give the VA’s subsequent disability
rating little weight. Indeed, the ALJ in this case gave Graley’s previous VA disability rating minimal
weight. As a result, there is no reasonable probability that the outcome would be different on
remand. Graley therefore cannot show that his new evidence is “material.”
Furthermore, Graley has not attached any new medical records related to the VA
determination, and has not pointed to any specific findings in the record that led to the VA
determination. Both VA and SSA could rely on substantial evidence in the same record and
reasonably come to opposite conclusions. Thus, Graley’s first objection is OVERRULED.
B. Credibility Determination
Plaintiff Graley objects to the Magistrate Judge’s recommendation that the ALJ’s credibility
determination was based on substantial evidence. Graley reiterates his position that objective medical
evidence supports his claims and that the ALJ’s finding that he had severe impairments cannot be
reconciled with the finding that Graley was not disabled. Graley claims that the ALJ ignored the
extensive list of diagnoses and treatment options that he undertook.29/
“[C]ourts generally defer to an ALJ’s credibility determination because, ‘[t]he opportunity
to observe the demeanor of a witness, evaluating what is said in light of how it is said, and
considering how it fits with the rest of the evidence gathered before the person who is conducting
the hearing, is invaluable and should not be discarded lightly.’”30/
“No symptom or combination of symptoms can be the basis for a finding of disability, no

28/

LaRiccia v. Comm’r of Soc. Sec., 549 Fed. App’x 377, 387 (6th Cir. 2013).
Doc. 13 at 17.
30/
Keeton v. Comm’r of Social Sec., 583 Fed. App’x515, 531 (6th Cir. 2014) (quoting Beavers v. Sec’y of
Health, Ed. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (second alteration in original).
29/

-6-

Case No. 1:14-cv-00728
Gwin, J.
matter how genuine the individual’s complaints may appear to be, unless there are medical signs and
laboratory findings demonstrating the existence of a medically determinable physical or mental
impairment(s) that could reasonably be expected to produce the symptoms.”31/
The ALJ evaluated Plaintiff’s statements regarding his pain and functional limitations and
found them to be inconsistent with the objective medical evidence in the record.32/ An ALJ can
conclude that severe impairments exist, but that these impairments do not disable a claimant.
The ALJ provided support for her decision to give lesser weight to Graley’s own testimony.
Graley complained to doctors of neck, back and shoulder pain, but did not make a claim to treating
doctors about an inability to lift and reach.33/ The ALJ relied on the impressions and reports of the
physicians in relation to those complaints which indicated that Graley only had mild symptoms.34/
The ALJ found Graley’s testimony that he had diarrhea up to six times a day as a result of
diverticulitis to conflict with physicians’ notes indicating Graley was responding well to conservative
treatment of the condition.35/
Although Graley indicated that he had difficulty grooming, taking care of himself, and
concentrating, the ALJ credited the impressions of examining physicians who had come to the
opposite conclusion.36/ Furthermore, the ALJ found inconsistencies in Graley’s own statements
regarding his home life. Assessing daily activities is proper when an ALJ is making a credibility

31/

SSR 96-7p, 1996 WL 374186 (July 2, 1996).
Doc. 11 at 20-24. For pain or other subjective complaints to be considered disabling, there must be (1)
objective medical evidence of an underlying medical condition, and (2) objective medical evidence that confirms the
severity of the alleged disabling pain arising from that condition, or objectively, the medical condition is of such severity
that it can reasonably be expected to produce such disabling pain. Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir.
1994).
33/
Doc. 11 at 385, 481, 484, 501, 551.
34/
Id. at 10.
35/
Id. at 116, 637.
36/
Id. at 429, 574, 738.
32/

-7-

Case No. 1:14-cv-00728
Gwin, J.
determination.37/
In conclusion, the ALJ relied on objective medical evidence in assessing Graley’s credibility.
The ALJ’s decision to give Graley’s testimony relatively little weight was therefore not erroneous.
Thus, Graley’s second objection is OVERRULED.
C. Accurate Hypothetical
Plaintiff Graley’s final objection is that the ALJ presented an incomplete hypothetical to the
VE. Graley says the hypothetical did not properly take into account his own credibility and the new
and material evidence of the VA disability determination.38/ Hypothetical questions the ALJ poses
to the VE must accurately portray the claimant’s physical and mental limitations in order to be
considered as substantial evidence.39/
However, Graley’s third objection is simply another way of restating the first two. Because
the VA disability determination was not new and material, and because the ALJ’s credibility
assessment was based on substantial evidence, the hypothetical posed to the VE was not incomplete.
As a result, Graley’s third objection is OVERRULED.
IV. Conclusion
For the foregoing reasons the Court ADOPTS the recommendation of the Magistrate Judge,
OVERRULES Plaintiff’s objections, and DISMISSES the complaint with prejudice.
IT IS SO ORDERED.

s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: June 26, 2015

37/

20 C.F.R. § 404.1529.
Doc. 18 at 5.
39/
Smith v. Halter, 307 F.3d 377 (6th Cir. 2001).
38/

-8-