Chisholm v. Commissioner of Social Security Administration

Filing 19

Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; this case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 3/12/18. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRENDA CHISHOLM,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL1,
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)

CASE NO. 1:16CV2917
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION
AND ORDER

Plaintiff Brenda Chisholm (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of Social Security Administration (“Defendant”) denying her applications for
Disability Insurance Benefits (“DIB”), Disabled Widow’s Benefits (“DWB”), and Supplemental
Security Income (“SSI”). ECF Dkt. #1. In her brief on the merits, filed on May 2, 2017, Plaintiff
asserts that: (1) the administrative law judge (“ALJ”) erred in the evaluation of the impact of her
peripheral vascular disease and in determining she had the capacity to perform light work; and (2)
that new and material evidence warrants remand. ECF Dkt. #14. Defendant filed a response brief
on July 17, 2017. ECF Dkt. #17. Plaintiff did not file a reply brief.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
I.

PROCEDURAL HISTORY
In January 2014, Plaintiff filed an application for DIB. ECF Dkt. #10 (“Tr.”) at 168.2 The

claim was denied initially and on reconsideration, and Plaintiff requested a hearing before an ALJ.
Id. at 73, 81. Prior to the hearing, Plaintiff filed applications for DWB and SSI, which were

1

On January 23, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security,
replacing Carolyn W. Colvin.
2

All citations to the Transcript refer to the page numbers assigned when the Transcript was filed in
the CM/ECF system rather than the page numbers assigned when the Transcript was compiled. This allows
the Court and the parties to easily reference the Transcript as the page numbers of the .PDF file containing
the Transcript correspond to the page numbers assigned when the Transcript was filed in the CM/ECF system.

consolidated with her DIB application. Id. at 179. The hearing was held on November 30, 2015.
Id. at 32. On January 22, 2016, the ALJ issued an unfavorable decision. Id. at 10. Following the
ALJ’s decision, the Appeals Council denied Plaintiff’s request for review. Id. at 1. Accordingly,
the ALJ’s January 22, 2016, decision stands as the final decision.
Plaintiff filed the instant suit seeking review of the ALJ’s decision on December 4, 2016.
ECF Dkt. #1. On May 2, 2014, Plaintiff filed a brief on the merits. ECF Dkt. #14. Defendant filed
a response brief on July 17, 2017. ECF Dkt. #17. Plaintiff did not file a reply brief.
II.

RELEVANT PORTIONS OF THE ALJ’S DECISION
In the decision, the ALJ indicated that Plaintiff met the insured status requirements of the

Social Security Act through September 30, 2011. Tr. at 16. The ALJ noted that it was previously
found that Plaintiff was the unmarried widow of a deceased insured worker and had reached the age
of fifty. Id. Continuing, the ALJ stated that Plaintiff met the non-disability requirements for DWB
set forth in § 202(e) of the Social Security Act. Id. The ALJ indicated that the prescribed period
ends on January 31, 2021. Id.
Next, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since
January 11, 2009, the alleged onset date. Tr. at 16. The ALJ found that Plaintiff had the following
severe impairments: peripheral artery disease with claudication and history of failed angiographies;
left great toe amputation; osteoarthritis of the left ankle; polymyalgia; asthma/chronic obstructive
pulmonary disease, secondary to smoking; and obesity. Id. Continuing, the ALJ indicated that
Plaintiff did not have an impairment or combination of impairments that met or medically equaled
the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at
18.
After consideration of the record, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1527(b) and 416.967(b), with
the following additional limitations: occasionally climb ramps and stairs; never climb ladders and
scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; never be exposed to unprotected
heights or moving mechanical parts; never operate a motor vehicle; and frequently be exposed to
humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme cold, or extreme heat. Tr. at 19.
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Following the RFC finding, the ALJ stated that Plaintiff was unable to perform any past relevant
work. Id. at 25.
The ALJ then indicated that Plaintiff was a younger individual on the alleged disability onset
date, but subsequently changed age category to an individual closely approaching old age. Tr. at
26. Continuing, the ALJ stated that Plaintiff had at least a high school education, was able to
communicate in English, and that the transferability of job skills was not material to the
determination of disability because the Medical-Vocational Rules supported a finding that Plaintiff
was not disabled. Id. Considering Plaintiff’s age, education, work experience, and RFC, the ALJ
determined that jobs existed in significant numbers in the national economy that Plaintiff could
perform. Id. Based on the reasons stated above, the ALJ found that Plaintiff had not been under a
disability, as defined in the Social Security Act, from January 11, 2009, through the date of the
decision. Id. at 27.
III.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to

social security benefits. These steps are:
1.

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) and 416.920(b) (1992));

2.

An individual who does not have a “severe impairment” will not be found to
be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));

3.

If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));

4.

If an individual is capable of performing the kind of work he or she has done
in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));

5.

If an individual’s impairment is so severe as to preclude the performance of
the kind of work he or she has done in the past, 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) and 416.920(f) (1992)).
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Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon
v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and

makes a determination of disability. This Court’s review of such a determination is limited in scope
by §205 of the Act, which states that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). Therefore, this
Court’s scope of review is limited to determining whether substantial evidence supports the findings
of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation omitted). Substantial evidence is defined as “more than a scintilla
of evidence but less than a preponderance.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir.
2007). Accordingly, when substantial evidence supports the ALJ’s denial of benefits, that finding
must be affirmed, even if a preponderance of the evidence exists in the record upon which the ALJ
could have found plaintiff disabled. The substantial evidence standard creates a “‘zone of choice’
within which [an ALJ] can act without the fear of court interference.” Buxton v. Halter, 246 F.3d
762, 773 (6th Cir.2001). However, an ALJ’s failure to follow agency rules and regulations “denotes
a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon
the record.” Cole, supra, citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009)
(internal citations omitted).

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V.

LAW AND ANALYSIS
A.

RFC Finding

Plaintiff first asserts that the ALJ erred in the evaluation of the impact of her severe
peripheral vascular disease and in determining that she had the RFC to perform the standing and
walking required for light work. ECF Dkt. #14 at 9-19. Specifically, Plaintiff argues: (1) her
treating physician’s treatment notes prove that she cannot perform the standing and walking required
by light work; (2) the ALJ erred in the evaluation of her pain and its impact on her ability to stand
and walk; and (3) the record supports her use of a cane or walker. Id.
1.

Light Work

First, Plaintiff states that none of her treating physicians provided a treating-source
statement, she was not examined by the Social Security Administration, and the reviewing
physicians only addressed her condition prior to September 30, 2011, her date last insured. ECF
Dkt. #14 at 10. After discussing the relevant medical evidence, Plaintiff states that the medical
evidence and the ALJ’s finding of claudification as a severe impairment undermine the ALJ’s
determination that she could perform light work. Id. at 11. Plaintiff states that the ALJ only gave
persuasive weight to the findings of her surgeon, Sunita Srivastava, M.D., but did not address the
portions of Dr. Srivastava’s opinion, or other opinions, showing that she had significant restrictions
in her ability to stand and walk. Id. at 12. Continuing, Plaintiff avers that she was treated by
multiple doctors at the Cleveland Clinic, yet their opinions were not viewed as part of the intended
team approach to her treatment. Id. (citing Pater v. Comm’r of Soc. Sec., No. 1:15CV1295, 2016
WL 3477220, *16 (N.D. Ohio June 27, 2016)).
Plaintiff then asserts that the ALJ did not adequately consider that: testing showing moderate
disease of the lower extremities at rest bilaterally; bypass was advised; her left foot remained
swollen months after the toe was amputated; she continued to experience bilateral foot edema and
decreased motion of the left ankle; she attempted walking as recommended; her bilateral lower
extremity pain with ambulation was consistent with claudication; and she ambulated at times with
a rolling walker. Id. at 13. In sum, Plaintiff claims that the ALJ did not adequately account for the
evidence that conflicts with the RFC finding that she could perform light work. Id. at 14.
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Defendant contends that no doctor opined that Plaintiff had greater walking and standing
limitations as a result of her peripheral vascular disease. ECF Dkt. #17 at 9. Continuing, Defendant
asserts that the “opinions” Plaintiff refers to in her brief are, for the most part, her subjective
complaints. Id. As for the doctors’ statements that are not echoing Plaintiff’s subjective complaints,
Defendant states that the statements are not specific enough to undermine the ALJ’s findings
regarding Plaintiff’s ability to stand and walk. Id. First, Defendant indicates that Plaintiff states that
treatment notes show that she had the “ability to walk only 10 to 15 feet,” but that the treatment
notes actually state that she could only walk ten to fifteen feet before she experienced aching
discomfort in her lower extremities. Id. (citing Tr. at 348). Additionally, Defendant points out that
the statement about Plaintiff’s ability to walk was her own description rather than a doctor’s opinion
of her functioning, and thus was not an opinion that ALJ was required to weigh. Id. at 9-10 (citing
Tr. at 347-48). Defendant also states that Plaintiff’s characterization of tightness in her legs as a
medical opinion is also mistaken since it was based on her own reporting, not a doctor’s assessment,
and that she failed to include that she also reported improved leg symptoms at that same
appointment. Id. at 10 (citing Tr. at 415). Additionally, Defendant asserts that Plaintiff’s reliance
on her toe amputation is misplaced because it was a procedure, not an opinion, and that the ALJ
noted the amputation and that it was healing well two months later. Id. Defendant also states that
the ALJ discussed Plaintiff’s subsequent treatment, during which she was repeatedly urged to walk
and did walk independently. Id. (citing Tr. at 21-23).
Continuing, Defendant avers that even if the assessment of John Patzaki, D.O., indicating
“lifestyle limiting claudation” is considered a medical opinion, it does not undermine the RFC
finding because the ALJ limited Plaintiff to light work with additional physical limitations. ECF
Dkt. #17 at 10 (citing Tr. at 11, 341). Defendant states that the limitations assessed by the ALJ
recognized that PLaintiff’s lifestyle was limited by her physical impairments. Id. at 10-11.
Responding to the Plaintiff’s argument that the ALJ “cherry picked” evidence from the record,
Defendant asserts that the ALJ thoroughly reviewed all of the evidence and resolved any conflicts
therein. Id. at 11.

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The argument presented by Plaintiff is without merit. Plaintiff sets forth evidence that she
claims was not adequately considered by the ALJ, essentially arguing that the ALJ’s decision was
not based on substantial evidence. However, the substantial-evidence standard requires the Court
to affirm the Commissioner’s findings if they are supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Cole, 661 F.3d at 937 (internal
citation omitted). Accordingly, when substantial evidence supports the ALJ’s denial of benefits,
that finding must be affirmed, even if a preponderance of the evidence exists in the record upon
which the ALJ could have found the claimant disabled.
A review of the decision shows that the ALJ went into great detail when discussing the
record of Plaintiff’s physical impairments. See Tr. at 19-25. Plaintiff relies heavily on her own
subjective complaints for evidence that the ALJ did not consider, however, for the reasons discussed
below, the ALJ properly found that she was less than fully credible. See ECF Dkt. #14 at 11 (citing
Tr. at 343, 347-48, 415). As such, the ALJ did not err when Plaintiff’s subjective complaints were
not specifically addressed in the decision. Plaintiff does cite some treatment notes regarding her
impairments, however, the ALJ was not obligated to specifically address every item in the record
and the Court is required to affirm the Commissioner’s findings if they are supported by such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Cole, 661
F.3d at 937 (internal citation omitted).
The ALJ’s decision is supported by substantial evidence. After carefully addressing the
medical evidence presented in this case, the ALJ explained the weight assigned to each opinion.
Tr. at 19-25. The ALJ also made several notable findings, including: Dr. Srivastava’s April 2015
assessment that Plaintiff had no limitations in activity; Plaintiff’s history of medication and
treatment noncompliance, as well as gaps in treatment; and Plaintiff’s activities of daily living,
which undermined the level of impairment described in her testimony. Id. at 24-25.
Further, Plaintiff does not explain how the ALJ failed to recognize the intended team
approach to her treatment at the Cleveland Clinic. See ECF Dkt. #14 at 12. The ALJ detailed
Plaintiff’s treatment at the Cleveland Clinic, including the fact that she was seen by multiple
physicians over the course of said treatment. See Tr. at 20-24. Plaintiff claims that the ALJ failed
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to take into consideration a portion of these treatment notes citing the findings of “lifestyle-limiting
claudation” and the “ability to walk only 10 to 15 feet.” ECF Dkt. #14 at 12 (citing Tr. at 341-42,
347-48). As discussed above, the treatment note indicating that Plaintiff was only able to walk ten
to fifteen feet was based on her own subjective complaint. See Tr. at 347-48. As far as the finding
of lifestyle-limiting claudation, Plaintiff fails to explain how the ALJ did not account for such a
finding. Indeed, the ALJ limited Plaintiff to light work with additional restrictions, reflecting that
she was more limited than an individual of her age without any physical impairments. See Tr. at 19.
Accordingly, Plaintiff has failed to show that the ALJ’s decision is not supported by substantial
evidence.
2.

Credibility

Next, Plaintiff asserts that the ALJ erroneously concluded that her reported symptoms were
not entirely credible. ECF Dkt. #14 at 14. Plaintiff states that it appears that the ALJ dismissed her
complaints of pain primarily because of the objective evidence, medical noncompliance, and her
continued smoking. Id. at 16. Continuing, Plaintiff avers that the objective evidence supports her
allegations of pain and that there is no evidence that her supposed medical noncompliance impacted
her pain. Id. at 16-17. Plaintiff then reiterates portions of her hearing testimony regarding her
abilities. Id. at 17. Additionally, Plaintiff claims that the ALJ’s emphasis on isolated instances
where she failed to walk as much as recommended and continued smoking is misleading and distorts
the evidence without also considering that she later attempted to walk, participated in physical
therapy, and underwent an amputation and additional surgeries. Id. Plaintiff again argues that the
ALJ engaged in a selective reading of the record. Id. Finally, Plaintiff states that while her pain
may not be consistent with total disability, it does prohibit prolonged standing and walking,
restricting her to sedentary activities and providing for a finding of disability pursuant to the
Medical-Vocational Rules. Id. at 18.
Defendant maintains that the ALJ considered Plaintiff’s subjective complaints of pain and
reasonably found them not fully believable. ECF Dkt. #17 at 11. Continuing, Defendant properly
asserts that ALJs are not required to accept a claimant’s subjective complaints and the findings about
a claimant’s credibility are afforded great weight and deference. Id. (citing Jones v. Comm’r of Soc.
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Sec., 336 F.3d 469, 476 (6th Cir. 2003)). Defendant avers that while Plaintiff cites some pieces of
medical evidence she claims support her complaints, she engages in the same “cherry picking” for
which she chides Defendant. Id. at 12. However, according to Defendant, the question is not
whether there is substantial evidence to support Plaintiff’s allegations, but is instead whether the
ALJ’s conclusions are supported by substantial evidence. Id. at 13 (citing Jones, 336 F.3d at 477).
Continuing, Defendant claims that some of the evidence cited by Plaintiff is not persuasive, noting
that Plaintiff cited a planned arterial bypass procedure, but failed to note that the procedure was
never performed and that Dr. Srivastava indicated that her condition was not severe enough to justify
the surgery. Id. (citing Tr. at 409).
Next, Defendant states that the ALJ also discounted Plaintiff’s statements due to her long
history of treatment and medication noncompliance, which is a proper factor in determining
credibility. ECF Dkt. #17 at 13 (citing Social Security Ruling (“SSR”) 96-7p). Defendant asserts
that Plaintiff: was frequently noncompliant with her walking program, but reported improvement
when compliant; missed physical therapy appointments and had not scheduled therapy as
recommended; was frequently noncompliant with various medications; and continued to smoke, and
refused to reduce her smoking, despite being repeatedly informed that quitting could help relieve
her symptoms and improve her overall health. Id. at 13-14 (citing Tr. at 53-54, 293, 306, 308, 342,
363-65, 372, 415, 440, 448, 458-59, 469, 501). Regarding Plaintiff’s contention that there was no
evidence her supposed noncompliance impacted her pain, Defendant states that her doctors
presumably would not have prescribed the treatments if they did not think it would benefit her. Id.
at 14. Defendant asserts that the ALJ was entitled to make the reasonable inference that compliance
with treatment would have improved Plaintiff’s symptoms. Id. (citing Kyle v. Comm’r of Soc. Sec.,
609 F.ed 847, 854-55 (6th Cir. 2010)). Finally, Defendant states that if Plaintiff was truly as limited
as she alleged, it would be expected that she follow recommendations designed to lessen her pain.
Id. (citing Strong v. Soc. Sec. Admin., 88 Fed.Appx. 841, 846 (6th Cir. 2004)).
The ALJ’s determination regarding Plaintiff’s credibility is supported by substantial
evidence. When evaluating the intensity and persistence of a claimant’s symptoms, ALJs are to
consider all of the available evidence from medical and non-medical sources, including: medical
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opinions; the objective medical evidence; daily activities; the location, duration, and frequency of
pain; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of
medications; treatment received for symptoms other than medication; measures taken to relieve pain
symptoms; and other factors concerning the functional limitations and restrictions due to pain.3 See
20 C.F.R. § 404.1529(c)(2)-(4).
At the hearing, Plaintiff testified that she had extreme limitations. For example, Plaintiff
stated that: her daughter and grandchildren ran her errands and did her laundry; she did not “go[]
anywhere really” because she was scared of falling; and she did nothing without her walker. Tr. at
41-42, 47, 50. In the decision, the ALJ found Plaintiff’s activities of daily living and testimony to
be partially credible concerning her symptoms of impairment and overall allegations of disability.
Id. at 24. Continuing, the ALJ stated:
[Plaintiff] testified that she sometimes walks across the street and shops at the dollar
store, and enjoys watching TV, playing cards with her grandchildren, socializing with
neighbors, as well as talking, texting, and playing games on her phone. While
[Plaintiff] testified that she must walk across the street with a walker as she has fallen
in the past, the longitudinal medical record does not reveal any prescription or
recommendation that [Plaintiff] use a cane or walker. Additionally, in July 2015,
pain management noted [Plaintiff] was steady without assistive devices.
Id.
The ALJ also indicated that Plaintiff had a long history of medication and treatment
noncompliance, as well as some gaps in treatment, which demonstrated a possible unwillingness to
do what was necessary to improve her condition. Tr. at 24. As an example, the ALJ cited treatment
notes indicating that Plaintiff was noncompliant with her blood pressure medication and was only
interested in having her bus pass renewed when she appeared for treatment. Id. (citing Tr. at 300).
The ALJ also cited numerous other occasions on which Plaintiff reported that she was noncompliant
with medications. Id. Additionally, the ALJ stated that as of the date of the hearing, Plaintiff had
not scheduled physical therapy appointments despite several referrals and recommendations to begin
therapy. Id. The ALJ also noted that Plaintiff had been routinely advised to stop smoking since

3

Plaintiff also refers to SSR 16-3p, however, this regulation became effective on March 28, 2016,
over two months after the ALJ issued the decision, and is therefore not applicable in this case. See ECF Dkt.

#14 at 15.
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2010, yet she continued to smoke half a pack of cigarettes per day. Id. Continuing, the ALJ
indicated that Plaintiff: had not tried her walking regimen; refused invasive therapy because she did
not feel that here ambulation limitations were so severe as to warrant the therapy; and provided
inconsistent reports at the hearing and in 2014 regarding taking anti-depressants, despite the medical
record failing to evidence any reports of depression since September 2010. Id. Based on the above,
the ALJ found:
While there is no doubt that severe medical impairments exist, the extent of
[Plaintiff’s] daily activities coupled with continued treatment noncompliance tends
to undermine the level of impairment [Plaintiff] described in her testimony.
Id.
The ALJ reasonably found Plaintiff less than fully credible. As stated above, the ALJ
thoroughly reviewed the evidence in this case, as contemplated in 20 C.F.R. § 404.1529(c)(2)-(4),
and then sufficiently explained why Plaintiff was determined to be less than fully credible. The ALJ
indicated that Plaintiff testified to severe limitations and a high level of pain, yet had a history of
noncompliance with treatment and medication recommendations, performed activities of daily living
inconsistent with her alleged limitations, and continued to smoke heavily despite being advised
frequently that her condition would likely improve if she quit. See Tr. at 24. Additionally, the ALJ
pointed out that as recently as July 2015, approximately four months prior to the hearing, Plaintiff
had presented for pain management and displayed a gait that was steady without assistive devices.
Id. (citing Tr. at 484). Plaintiff has failed to show that the ALJ erroneously concluded that her
reported symptoms were not entirely credible.
3.

Cane and/or Walker

Plaintiff next asserts that the record supports her use of a cane or walker. ECF Dkt. #14 at
18. Specifically, Plaintiff states that she testified that she ambulated with a walker or cane and the
ALJ recognized that she had a medically determinable impairment that could produce the pain
symptoms. Id. (citing Tr. at 20, 49-50, 60-61). Plaintiff states that “[n]o physician has stated that
[she] does not need a cane or walker, even though she can walk on occasion without assistive
devices.” Id. Continuing, Plaintiff avers that the evidence does not support a conclusion that she

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did not require a cane or walker, and remand is necessary to determine whether an assistive device
is medically necessary and should be included in the RFC finding. Id. at 19.
Defendant contends that Plaintiff’s walker had not been prescribed and her alleged need for
a walker has little support in the medical records. ECF Dkt. #17 at 14-15. Continuing, Defendant
states that while Plaintiff presented on two occasions with a walker, she also presented to doctors
without an assistive device and with a steady gait. Id. at 15 (citing Tr. at 439, 450, 469, 484, 501).
Defendant also states that no notes were made regarding Plaintiff’s use of an assistive device and
no such device was recommended over the course of multiple visits with Dr. Srivastava. Id. (citing
Tr. at 458-59, 476, 491-92). Further, Defendant notes that Dr. Srivastava stated that Plaintiff had
no limitations during an appointment. Id. (citing Tr. ast 459). Finally, Defendant asserts that SSR
96-9p states:
To find that a hand-held assistive device is medically required, there must be medical
documentation establishing the need for a hand-held assistive device to aid in walking
and standing, and describing the circumstances for which it is needed.
Id.
Plaintiff’s argument is without merit. While Plaintiff asserts that a cane or walker was
medically necessary, she fails to cite any medical evidence in support of this claim. Instead, Plaintiff
argues that no physician stated that she did not need a cane or walker. The absence of medical
evidence indicating that Plaintiff did not need to use a cane or walker does not support her assertion
that she needed to use an assistive device, but rather supports the more reasonable conclusion that
no physician felt that she needed an assistive device to ambulate. Additionally, while Plaintiff
testified that she could not ambulate without a cane or walker, the record establishes that she
appeared at medical appointments without a assistive device and was able to ambulate. See Tr. at
450, 459, 469, 484. Moreover, the ALJ properly determined that Plaintiff was less than fully
credible, as discussed above, and was therefore not obligated to accept her testimony as wholly
truthful. Accordingly, the Court declines to remand this case to determine whether an assistive
device was medically necessary.
B.

New Evidence

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Plaintiff also asserts that new and material evidence warrants remand of this case. ECF Dkt.
#14 at 19. The alleged new and material evidence is records from January 2016 relating to a right
femoral puncture, placement of a catheter in the aorta, pelvic angiogram, and placement of a catheter
in the left femoral artery with left lower runoff. Id. Continuing, Plaintiff asserts that the evidence
is new as the procedure was performed shortly before the hearing and was not available to her at the
time of the hearing. Id. at 20. Plaintiff claims that the evidence is material since there is a
reasonable probability that a different conclusion would have been reached if the evidence had been
available at the time of the hearing since the ALJ was influenced by the fact that she had declined
invasive surgery. Id. at 21.
Defendant asserts that evidence received by the Appeals Council is not considered for
substantial evidence review and can only be used to justify a remand under sentence six of 42 U.S.C.
§ 405(g). ECF Dkt. #17 at 15 (citing Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 685
(6th Cir. 1992)). Continuing, Defendant states that contrary to Plaintiff’s contention, the records at
issue were considered by the Appeals Council as the exhibit list included the exhibit at 12F. Id.
Next, Defendant argues that even if this evidence was not considered by the Appeals Council, it does
not justify remand. Id. at 16. Defendant asserts that the procedure was diagnostic and did not
indicate a worsening of Plaintiff’s condition. Id. Further, Defendant states that Plaintiff had the
same procedure performed two times prior to January 2016, in September 2013 and December 2013,
and the January 2016 testing produced similar results. Id.
Plaintiff’s argument is without merit. As an initial matter, it appears that the Appeals
Council did consider the alleged new and material evidence when denying Plaintiff’s request for
review.4 Contrary to Plaintiff’s assertion, the Appeals Council considered Exhibit 12F, listed as
containing twenty-nine pages, which included the records of the January 2016 procedure. See Tr.

4

Notably, Plaintiff, who was represented by counsel, does not indicate that she notified the ALJ of
the procedure performed on January 8, 2016. See ECF Dkt. #14. The ALJ issued the decision on January
22, 2016, two weeks after Plaintiff underwent the procedure that produced the alleged new and material
evidence. Tr. at 10. Plaintiff now asks the Court to remand this case based on evidence that was created after
the hearing, but prior to the ALJ’s decision being issued. Plaintiff does not state that the ALJ was afforded
an opportunity to consider this evidence prior to issuing the decision.

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at 5. The Appeals Council explained that it was not considering eighty-three pages of records from
April 3, 2016 to August 8, 2016. Id. at 2. Rather, the Appeals Council indicated that it considered
the additional evidence listed on the Order of Appeals Council, which included the Cleveland Clinic
records from November 10, 2015, to January 9, 2016. Id. at 5.
Moreover, the record shows that Plaintiff underwent two procedures similar to the procedure
performed in January 2016. See Tr. at 358, 360, 559. Plaintiff has failed to show how the January
2016 procedure constitutes material evidence as the ALJ was aware of these two prior procedures
performed in 2013 when the decision was issued. The Court finds that there is not a reasonable
probability that Defendant would have reached a different disposition if the evidence from January
2016 was presented to the ALJ. See Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711
(6th Cir. 1988). At the time of the ALJ’s decision, Plaintiff had undergone procedures that were
similar in nature to the January 2016 procedure, which the ALJ was aware of at the time of the
hearing. See Tr. at 358, 360, 559. Plaintiff has failed to show that this evidence is material and,
accordingly, the Court declines to remand this case.
VI.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the ALJ and dismisses the

instant case in its entirety with prejudice.

Date: March 12, 2018

/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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