Brown v. Commissioner of Social Security Administration

Filing 20

Memorandum of Opinion and Order. Plaintiff has not met her burden under the law, and the final decision of the Commissioner is AFFIRMED. Plaintiff's complaint is dismissed with prejudice. Magistrate Judge Thomas M. Parker on 6/11/2018. (Related document 1 ) (O,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHELLE BROWN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.

I.

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CASE NO. 1:17-cv-1309

MAGISTRATE JUDGE
THOMAS M. PARKER
MEMORANDUM OF OPINION
AND ORDER

Introduction
Plaintiff, Michelle Brown, seeks judicial review of the final decision of the

Commissioner of Social Security denying her application for supplemental security income
(“SSI”) under Title XVI of the Social Security Act (“Act”). The parties consented to my
jurisdiction. ECF Doc. 14.
Because the ALJ supported his decision with substantial evidence and applied the correct
legal standards, the final decision of the Commissioner must be AFFIRMED.
II.

Procedural History
Brown previously filed for SSI and for disability insurance benefits in August 2008,

alleging an onset date of April 24, 2008. (Tr. 141) Brown’s first disability claim was denied
initially and on reconsideration. (Tr. 141) On February 25, 2011, Administrative Law Judge
(“ALJ”) Gary J. Suttles determined that Brown had severe impairments of sleep apnea, bilateral
knee arthritis, hypertension and obesity. (Tr. 143) ALJ Suttles found that Brown had the
residual functional capacity to perform a limited range of sedentary work and that she could

perform her past work as a customer service representative. (Tr. 141-148) The Appeals Council
denied Brown’s request for further review and this court affirmed the Commissioner’s
conclusions on March 8, 2013. Brown v. Comm’r of Soc. Sec. Admin., No. 1:12-cv-1915, 2013
WL 872404, at *1 (N.D. Ohio March 8, 2013) (Magistrate Judge Limbert).
Brown re-filed for both Title II and Title XVI disability benefits in March 2011. (Tr.
165) ALJ Traci Hixon denied Brown’s second application for benefits on May 24, 2013. (Tr.
165-177) ALJ Hixson found that new and material evidence regarding Brown’s back, knee, and
foot pain supported the conclusion that she would have greater limitations than were established
in the prior ALJ’s decision. (Tr. 168-176) ALJ Hixson found that Brown could perform a
limited range of sedentary work. (Tr. 171) She considered Brown’s testimony that she required
a cane or crutches for balance. (Tr. 172) ALJ Hixson found that Brown was able to perform her
past relevant work as a telemarketer and appointment setter. (Tr. 176) The Appeals Council
denied Brown’s request for review (Tr. 183-188), and this court affirmed the Commissioner’s
decision. Brown v. Colvin, No. 1:14-cv-2410, 2016 WL 1071103 at *1 (N.D. Ohio Mar. 17,
2016) (Judge Nugent/Magistrate Judge Limbert)
Brown filed the instant protective application for SSI benefits on December 12, 2014
alleging a disability onset date of October 20, 2014. (Tr. 258) After Brown’s disability
application was denied initially and on reconsideration, (Tr. 189-212, 225-229) she requested an
administrative hearing. (Tr. 230) ALJ Keith J. Kearney heard the case on August 9, 2016 (Tr.
115-137) and denied Brown’s claim ion August 24, 2016. (Tr. 91-103) The Appeals Council
denied review on June 1, 2017, rendering the ALJ’s decision final. (Tr. 1-4) Brown filed this
action to challenge the Commissioner’s final decision. ECF Doc. 1.

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III.

Evidence
A.

Personal, Educational and Vocational Evidence

Brown was 54 years old on her alleged onset date. (Tr. 200) She graduated from high
school, had an Associate’s Degree in paralegal work, and a certificate in medical coding and
billing. (Tr. 485) Plaintiff’s past work included telemarketing and a job scheduling medical
appointments. (Tr. 102, 485)
B.

Medical Evidence1

On May 30, 2014, Brown saw rheumatologist Bijal Jayakar, M.D. (Tr. 366-370)
Physical examination showed normal gait, sensation, muscle strength and stable joints; but
limited range of motion in the shoulders and knees due to pain. (Tr. 368-369) Dr. Jayakar found
11 out of 18 tender points for fibromyalgia. (Tr. 369) He noted that Brown did not exhibit
symptoms of an acute gout attack, and that gout was not “crystal proven at this time.” (Tr. 369370) He recommended x-rays of the knees and shoulders; cortisone shots (which she declined);
physical therapy; weight loss; and checking of her uric acid levels. (Tr. 370)
X-rays of Brown’s shoulders taken on May 30, 2014 showed mild degenerative disc
disease of the bilateral acromioclavicular joint space with bursa side osteophytes. (Tr. 349-350)
Otherwise, there were no acute findings. (Tr. 349-350) The same day, x-rays of the knees
showed severe bilateral medial and patellofemoral compartment narrowing, left greater than
right. (Tr. 347-348)
On June 9, 2014, Brown saw Garrett LaSalle, M.D., (Tr. 332, 352) Examination showed
diffuse tenderness on palpation over both knees. There was no objective pathology on testing.

1

In her December 2014 application, Brown alleges a disability onset date of October 20, 2014. (Tr. 258)
The Commissioner has pointed out that some of the medical evidence in the record pre-dates the onset
date. ECF Doc. 18, Page ID# 580.

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Brown had full strength throughout her lower extremities. (Tr. 331) Based on the imaging, Dr.
LaSalle diagnosed bilateral knee osteoarthritis. He felt that significant obesity contributed to
Brown’s pain. (Tr. 332) Dr. LaSalle referred Brown to physical therapy; offered steroid
injections of her knees (which she refused); and ordered knee braces. (Tr. 332-334) He told her
he would address her shoulder pain on a subsequent office visit. (Tr. 332)
On June 25, 2014, Brown called Dr. Jayakar’s office and said she was having a gout
flare-up in her left big toe. He prescribed colchicine and allopurinol and ordered testing of her
uric acid level on a monthly basis. (Tr. 362)
A July 7, 2014 MRI showed degenerative changes from Brown’s T1 down to her L5
discs. Degenerative changes were most severe at L4-L5, L5-S1, and T11-12, where the MRI
showed disc bulging, loss of disc height, moderate foraminal and canal narrowing and facet
hypertrophy. (Tr. 340-41) Brown called Dr. LaSalle’s office after the MRI study, seeking the
results. Dr. LaSalle informed Brown that “the MRI showed arthritis (but this is common in
anyone over 40 years old, so it is nothing worrisome.) There was no compression of nerves or
the spinal cord noted.” (Tr. 359)
On September 25, 2014, Brown established care with Elizabeth Habjan, M.D. (Tr. 357)
Brown had begun using a cane. Brown told Dr. Habjan that the anti-inflammatory medication
Diclofenac was not helping and she still had severe pain in both knees. Physical examination
findings were mostly normal except for mild edema in the lower legs. Brown had normal range
of motion and muscle tone, and no tenderness. Dr. Habjan prescribed medication for
hypertension; allopurinol for gout; diclofenac sodium for degenerative joint disease; albuterol for
sleep apnea; and Vitamin D. (Tr. 358)

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Brown returned to see Dr. LaSalle on February 16, 2015. Dr. LaSalle noted that Brown
had not returned for a follow up appointment for chronic low back pain and right shoulder pain.
She had not visited bariatric medicine or physical therapy as recommended and she had not
followed up with rheumatology in May 2014. Brown had limitation of abduction of the right
shoulder to approximately 110 degrees before she showed significant limitation secondary to
pain. She had reproduction for pain in the right shoulder with internal rotation of the shoulder.
She was positive for Neer test and empty-can test. Dr. LaSalle felt that testing was clinically
consistent with a rotator cuff pathology, though May 2014 imaging demonstrated no acute
pathology. Brown’s knee pain had been present for approximately eight years and history and
imaging were consistent with osteoarthritis of both knees. Brown had had low back pain for
approximately seven years and previously had no historical or physical exam consistent with
myelopathy, cauda equine syndrome or radiculopathy. (Tr. 429) Dr. LaSalle restated his
previous recommendations and referrals and told Brown to return in six weeks. (Tr. 430)
A lab panel performed on March 19, 2015 showed elevated uric acid levels at 8.6.
Normal levels are between 2.0 and 7.0. (Tr. 416)
On April 10, 2015, x-rays of the knees showed tricompartmental degenerative changes
greater in the medial and patellofemoral compartments with subchondral sclerosis, osteophyte
formation, and loss of the joint space. There was no joint effusion or soft tissue swelling. (Tr.
420-422)
On April 22, 2015, Brown met with orthopedist Audrey Mackel, M.D., for knee pain.
Brown told Dr. Mackel that her knee pain was chronic and affected her ability to sleep, to
perform everyday tasks such as walking up or down stairs, to do housework and to stand from a
seated position. Physical examination showed that Brown’s knees were stable with normal

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strength and muscle tone, varus deformity, medial and lateral joint line tenderness, and lateral
patellar tenderness. Dr. Mackel noted crepitus in both knees with flexion and extension. (Tr.
452) Dr. Mackel referred Brown to physical therapy. (Tr. 453)
Brown returned to Dr. LaSalle on November 2, 2015, nine months after her last
appointment. However, she left the office before seeing the doctor. (Tr. 436) Later, a nurse
called her and referred her to an orthopedist, recommended repeat x-rays, referred her again to
physical therapy, and prescribed a lidocaine ointment. (Tr. 436) A few days later, an x-ray of
the right shoulder showed degenerative joint disease of the acromioclavicular joint. Wellcorticated ossific density seen adjacent to the greater tuberosity suggested calcific tendinitis.
There was no acute fracture or dislocation, and a normal acromiohumeral interval and
glenohumeral joint space. (Tr. 442)
Brown went to the Cleveland Clinic emergency department on December 15, 2015
complaining of shortness of breath. (Tr. 444-445) Brown was noted as morbidly obese; she had
an antalgic gait and ambulated with a cane. She was found to have hypertension, swelling and
heart palpitations and was referred to the cardiology department. (Tr. 445-447)
On April 11, 2016, Brown returned to Dr. LaSalle with multiple pain complaints,
asserting it was most severe in her knees. Dr. LaSalle told her she was not a candidate for knee
surgery until she lost weight. (Tr. 474) Brown declined injection therapy for her knee pain. She
was noted to be well appearing and in no distress, with no evidence of effusions in the knees.
(Tr. 475) Dr. LaSalle prescribed Cymbalta and ordered knee braces. (Tr. 475-476)
In April 2016, Dr. LaSalle referred Brown to the Cleveland Clinic’s Department of
Behavioral Medicine. (Tr. 483) During her intake evaluation with Stanley Fireman, LISW,
Brown shared that she had been sexually abused as a child, but did not want to discuss her

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traumatic experience in detail. (Tr. 484) Brown also stated that she experienced mood changes,
feelings of frustration, anxiety, depression, anger, and trouble with sleeping. She had difficulty
concentrating and appeared tearful, depressed, and angry during parts of the evaluation. Mr.
Fireman also noted that Brown’s gait was “extremely slow and labored.” Brown admitted that
she required help from her family members with everyday tasks such as showering and with
most household chores. (Tr. 485) Mr. Fireman recommended that Brown return for
psychological counseling due to the severity of her psychological symptoms. (Tr. 486)
C.

Opinion Evidence
1.

State Agency Reviewing Physicians

On February 5, 2015 Elaine Lewis, M.D., reviewed Brown’s records including shoulder
and knee x-rays from May 2014 and completed an RFC assessment. (Tr. 192-196) She noted
severe impairments of sleep-related breathing disorders, osteoarthritis, spine disorders, essential
hypertension, and obesity. (Tr. 192-193) Dr. Lewis then adopted the RFC assessment from ALJ
Hixson’s May 2013 decision. (Tr. 192-196)
On May 22, 2015, Michael Lehv, M.D., reviewed Brown’s records, including the April
2015 x-rays of Brown’s knees, and completed an RFC assessment. (Tr. 205-209) Dr. Lehv also
adopted the RFC assessment from ALJ Hixson’s May 2013 decision.
2.

Margaret Kravanya, D.O. - January 2016

On January 25, 2016, Dr. Margaret Kravanya completed a medical source statement
regarding Brown’s physical functional capacity.2 (Tr. 424-425) Dr. Kravanya opined that

2

Dr. Kravanya had a past treatment relationship with Brown. However, by January 2016 when Dr.
Kravanya completed the medical source statement, she was no longer treating Brown. The record reveals
Dr. Kravanya had not seen Browns since July 21, 2013. The check-box form she completed in January
2016 was similar to a form she completed in November 2012 in support of Brown’s prior application.
(Tr. 101)

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Brown had significant limitations in almost all aspects of her physical functioning. She opined
that Brown was able to occasionally lift five pounds; couldn’t stand or walk at all; and could sit
without interruption for fifteen minutes. She opined that Brown could rarely climb, balance,
stoop, crouch, kneel, and crawl. (Tr. 424) Dr. Kravanya described Brown’s pain as severe. She
opined that Brown was only occasionally able to reach, push, pull, or perform tasks requiring
gross or fine manipulation. She also opined that Brown was unable to perform repetitive, or
sustained activities because of her decreased range of motion in her spine shoulder and knees.
She also stated that Brown would need to take additional breaks “all day.” (Tr. 25) Dr.
Kravanya attributed these limitations to degenerative arthritis, gait abnormality, decreased range
of motion in Brown’s shoulders, knees, and spine, postural imbalance, decreased spinal range of
motion, and morbid obesity. (Tr. 424)
D.

Testimonial Evidence
1.

Testimony of Ms. Brown

Brown testified that, since her 2013 hearing, her pain had gotten progressively worse.
(Tr. 123, 128) She had a hard time taking care of herself due to pain. She could not wash the
dishes or prepare meals. Her husband was rarely home, and she did not have much help around
the house. (Tr. 123, 132) She spent most of her day lying around. (Tr. 124, 126) She listened
to the radio, watched television, or read. (Tr. 124, 133) She used a cane and a walker. (Tr. 124)
Nothing relieved her constant pain, and it got worse when she stood or walked. (Tr. 126)
Brown had pain in her right shoulder due to arthritis and a rotator-cuff issue. (Tr. 129) It
was difficult to raise her arm straight out and worse to lift it over her head. (Tr. 130) She had
difficulty lifting things and taking a shower. (Tr. 129-130) Brown said she took medicine for

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hypertension, Cymbalta for pain and depression, ibuprofen for pain, lidocaine ointment for pain
in her knees, allopurinol for gout, and used an inhaler for breathing. (Tr. 133-134)
2.

Vocational Expert’s Testimony

A vocational expert, Deborah Lee, also testified. (Tr. 135) Ms. Lee testified that an
individual who was off task 20% of the time due to pain would not be able to work. (Tr. 135)
IV.

Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the

existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(a). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy3….
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow the five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1. If the claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment must be
severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity, is suffering from a severe
impairment that has lasted or is expected to last for a continuous period of at
“‘[W]ork which exists in the national economy’ means work which exists in significant numbers either in
the region where such individual lives or in several regions of the country.” 42 U.S.C. § 423 (d)(2)(A).
3

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least twelve months, and his impairment meets or equals a listed impairment,
claimant is presumed disabled without further inquiry.
4. If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant work,
he is not disabled.
5. If claimant is unable to perform past relevant work, he is not disabled if, based
on his vocational factors and residual functional capacity, he is capable of
performing other work that exists in significant numbers in the national
economy.
20 C.R.F. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). Under this
sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v.
Comm’r of Soc. Sec. 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner
at Step Five to produce evidence that establishes whether the claimant has the RFC and
vocational factors to perform work available in the national economy. Id.
V.

The ALJ’s Decision
The ALJ’s August 24, 2016 decision contained the following findings relevant to this

appeal:
1. Ms. Brown had not engaged in substantial gainful activity since October 20,
2014, the alleged onset date. (Tr. 94)
2. She had severe impairments: obstructive sleep apnea; bilateral knee
osteoarthritis; lumbar spine osteoarthritis; bilateral shoulder degenerative joint
disease; hypertension; and obesity. And he found that gout was not a severe
impairment. (Tr. 94)
4. ALJ Kearney adopted the conclusions of the prior ALJ finding that Brown had
the residual functional capacity to perform sedentary work except that she
would require the option to alternate between sitting and standing every hour
for approximately 5 minutes without leaving the workstation; she could
occasionally climb ramps and stairs, but could never climb ladders, ropes or
scaffolds; she could only occasionally reach overhead, but could frequently
handle, finger, and feel. She could not be exposed to concentrated pulmonary

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irritants; could not work around hazardous conditions; and would require the
use of a cane when standing and walking. (Tr. 97)
5. Brown was capable of performing past relevant work as a telemarketer and
appointment setter. (Tr. 102)
Based on his six findings, the ALJ determined Brown had not been under a disability from
October 20, 2014 through the date of his decision. (Tr. 103)
VI.

Law & Analysis
A.

Standard of Review

This court’s review is limited to determining whether there is substantial evidence in the
record to support the ALJ’s findings of fact and whether the ALJ applied the correct legal
standards. See Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (“decision must
be affirmed if the administrative law judge’s findings and inferences are reasonably drawn from
the record or supported by substantial evidence, even if that evidence could support a contrary
decision.”); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Substantial evidence
has been 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.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of
Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
The Act provides 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) and 1383(c)(3).
The findings of the Commissioner are not subject to reversal merely because there exists in the
record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762,
772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535,545 (6th Cir. 1986); see also Her v.
Comm’r of Soc. Sec., 203 F.3d 288, 389-90 (6th Cir. 1999) (“Even if the evidence could also
11

support another conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached.” See Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997). This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984).
In addition to considering whether substantial evidence supported the Commissioner’s
decision, the court must determine whether proper legal standards were applied. Reversal is
mandatory when incorrect legal standards are applied. See e.g. White v. Comm’r of Soc. Sec. 572
F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006)
(“Even if supported by substantial evidence, however, a decision of the Commissioner will not
be upheld where the SSA fails to follow its own regulations and where that error prejudices a
claimant on the merits or deprives the claimant of a substantial right.”)
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough
evidence in the record to support the decision, [where] the reasons given by the trier of fact do
not build an accurate and logical bridge between the evidence and the result.” Fleischer v.
Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996); accord Shrader v. Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS 157595 (E.D.
Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the court cannot determine if it was
discounted or merely overlooked.”); McHugh v. Astrue, No. 1:10-cv-734, 2011 U.S. Dist. LEXIS
141342 (S.D. Ohio Nov. 15, 2011); Gilliams v. Astrue, No. 2:10-CV-017, 2010 U.S. Dist.
LEXIS 72346 (E.D. Tenn. July 19, 2010); Hook v. Astrue, No. 1:09-cv-19822010, 2010 U.S.
Dist. LEXIS 75321 (N.D. Ohio July 9, 2010).

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B.

Residual Functional Capacity and Drummond Analysis

Plaintiff argues that the ALJ erred in his application of Drummond v. Comm’r, 126 F.3d
837 (6th Cir. 1997) and Acquiescence Ruling 98-4(6) by concluding there was no new and
material evidence of disability since Brown had last presented a claim for benefits. In
Drummond, the Sixth Circuit held that prior non-appealed decisions of the Commissioner are
binding on the claimant and the Commissioner unless new and material evidence or changes in
the law require a different ruling. Drummond, 126 F.3d at 841. SSA Ruling 98-4(6), 1998 SSR
LEXIS 5 therefore mandates:
When adjudicating a subsequent disability claim with an adjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
such a finding from the final decision by an ALJ or the Appeals Council on the
prior claim in determining whether the claimant is disabled with respect to the
adjudicated period unless there is new and material evidence relating to such a
finding or there has been a change in the law, regulations or rulings affecting the
finding or the method for arriving at the finding.
AR 98-4(6), 1998 SSR LEXIS 5, *5, 1998 WL 283902, at *3.
Plaintiff bears the burden to show circumstances have changed since the prior ALJ's
decision “by presenting new and material evidence of deterioration.” Drogowski v. Comm'r of
Soc. Sec., 2011 U.S. Dist. LEXIS 115925, 2011 WL 4502988, at *8 (E.D. Mich.) report and
recommendation adopted, 2011 U.S. Dist. LEXIS 110609, 2011 WL 4502955 (E.D. Mich.).
New evidence is evidence that was “not in existence or available to the claimant at the time of
the administrative proceeding that may have changed the outcome of the proceeding.” Coakley
v. Comm'r of Soc. Sec., 2014 U.S. Dist. LEXIS 37448, at *55 (S.D. Ohio) (citing Schmiedebusch
v. Comm'r of Soc. Sec., 536 F. App'x 637, 647 (6th Cir. 2013)). Evidence is considered material
if there is a reasonable probability that the Commissioner would have reached a different

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decision if he or she had considered the new evidence. Coakley, 2014 U.S. Dist. LEXIS 37448,
at *55 (citing Sizemore v. Sec'y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988)).
Here, plaintiff argues there was new, material evidence showing worsening arthritic
degeneration of her shoulder and knees, and the new impairment of gout. However, this “new
evidence” was similar to evidence introduced at her prior hearings and already considered by the
Commissioner in the prior ALJ decisions. Thus, it is unlikely that the Commissioner would have
reached a different decision even in light of the new evidence. Substantial evidence supported
the ALJ’s finding that there was no new and material evidence establishing a change in the
claimant’s residual functional capacity.
The ALJ’s decision addressed each of Brown’s alleged impairments and explained his
finding that the evidence did not support a more restrictive RFC than the one assigned by ALJ
Hixson in 2013. Regarding Brown’s chronic back, knee and shoulder pain, the ALJ noted that
there was no objective clinical evidence of worsening. Diagnostic imaging studies had remained
essentially stable since the prior decision. The ALJ discussed x-ray and MRI studies from both
before and after the previous decision which contained similar findings and which exhibited no
acute changes over time. (Tr. 99) Brown disagrees, but the ALJ must evaluate the record before
him; and, here, the conclusion is inescapable that the ALJ performed a thorough review of the
record and explicitly discussed the very records Brown also argues about.
Similarly, the ALJ noted Brown’s physical examinations showed little material change
since the ALJ’s 2013 decision. There was no evidence of greater loss of strength, sensation,
reflexes, or other evidence of motor or neurological deficits. Brown was using a cane before and
after the last decision. She continued to have some positive findings consistent with
musculoskeletal pain including tenderness and range of motion difficulties in her shoulders, “but

14

there were no significant changes from the prior decision that would warrant additional postural
or manipulative limitations.” (Tr. 99) The ALJ also noted Brown’s treatment regimen had
remained essentially unchanged since the earlier claim denial. (Tr. 100)
Brown argues that the evidence showed a worsening of her shoulder condition. She
points to x-rays taken in 2014 and in 2015 arguing that the later x-rays showed additional calcific
tendinitis or an inflammation of the rotator cuff caused by buildup of calcium. (Tr. 472)
However, despite this additional finding on the 2015 x-rays, Brown cites no evidence that this
additional condition negatively impacted her functional capability. Brown also argues that Dr.
LaSalle expressed that her shoulder had worsened in his treatment notes. (Tr. 429) But Dr.
LaSalle’s treatment notes are equivocal; it is unclear whether he observed a worsening condition.
In his February 2015 treatment notes. And Dr. LaSalle noted that there were no acute findings in
Brown’s shoulder x-rays from May 2014. He stated that her complaints were consistent with
rotator cuff pathology, but the x-rays which Brown now argues show objective findings
consistent with rotator cuff pathology were not taken until November 2015, long after her
February visit with Dr. LaSalle. Moreover, even with Dr. LaSalle’s finding of rotator cuff
dysfunction, there is no indication that this condition adversely impacted Brown’s ability to
function during the alleged disability period.
Moreover, as pointed out by the ALJ, Brown did not follow the treatment plan formed by
Dr. LaSalle to address her complaints of pain. The ALJ noted that Brown only treated with Dr.
LaSalle approximately every six months. He also noted that:
[t]here has been no change in the frequency or intensity of the claimant’s
treatment that would signal a significant worsening of the claimant’s symptoms
and functional limitations. Generally, her treatment was conservative, and
consistent with intermittent pain management visits with Dr. LaSalle, with no use
of opioid pain medications. She continued to be noncompliant with referrals for
physical, rheumatology (since May 2014), and bariatric treatment. In addition,
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she continued to refuse treatment measures that would be expected to provide
relief of her pain, including epidural steroid injections and viscosupplementation,
citing only an aversion to needles as her resistance to this treatment, rather than
other limitations on access to this medical care.
(Tr. 100)
Regarding her knee pain, Brown cites a treatment note from Dr. LaSalle stating that her
knee pain was gradually worsening. (Tr. 352) However, the cited note appears to be Brown’s
statement, not a finding by Dr. LaSalle. Brown further points to a prescription of Cymbalta and
knee braces as evidence of worsening knee pain. However, as pointed out by the Commissioner,
Dr. LaSalle prescribed Cymbalta in June 2014 – before her alleged onset date, but Brown did not
fill her prescription and did not start taking it until 2016. (Tr. 332, 475) And knee braces had
been prescribed prior to the 2013 ALJ decision; ALJ Hixson’s decision mentioned them. (Tr.
173) Thus, the fact that Brown wore knee braces did not constitute new and material evidence
that her knee condition had worsened.
Even Brown’s own allegations regarding her disabilities had not changed significantly.
The ALJ explained:
During the prior application and appeal, the claimant alleged disability due to
chronic widespread pain and swelling, which she testified affected her shoulders,
knees, feet, and low back. The claimant reported that she could sit for
approximately five minutes and stand for only one minute before needing to
change positions or lie down, and she noted that she required a cane or crutches
for balance at all times. Additionally, she stated that her symptoms had worsened
since February 2011, and she now had difficulty caring for her personal needs.
The claimant testified that she could lift a gallon of milk, but she could not
perform overhead reaching, and she stated that she sometimes experience spasms
in her hands. Moreover, the claimant described ongoing drowsiness and dizziness
related to a combination of poor sleep and medication side effects.
The claimant’s current allegations regarding her limitations have generally
remained the same, although she vaguely testified that her pain has “gotten worse
every year,” although she did not describe functional limitations that have
worsened over the course of the unadjudicated period. She testified that she has
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constant, widespread pain, especially in her knees and lumbar spine, which limit
her mobility and her ability to perform even daily household tasks. She indicated
that she uses a walker to move about in her home, but uses a cane and knee braces
when she is outside of her home. She reported that she has received minimal
relief of pain from her current treatment, including use of a TENS unit and
NSAID pain medications. She reported that she could lift, but not carry a gallon
of milk. She continued to report difficulty raising or reaching with the right arm.
She indicated that she has sleep disturbance related to her pain, and naps during
the day. She related that the most comfortable position is lying down, which she
does at most times throughout the day.
(Tr. 98)
Finally, Brown contends that the ALJ erred in failing to find gout to be a new, severe
impairment. However, the ALJ did consider Brown’s gout, noting that there was only one
incidence in the record of elevated uric acid levels supportive of gout. The ALJ also found that
there was no evidence of “an ongoing presence of medical signs or symptoms related to gout that
would cause additional work-related limitations.” (Tr. 94) Brown largely cites her own
complaints to medical providers that she was having gout pain. ECF Doc. 16, Page ID# 570.
However, treatment notes from May 2014 state that Brown had no symptoms of gout at that time
and that her diagnosis for gout was “not crystal proven.” (Tr. 369-370) Brown later called Dr.
Jayakar’s office and told them she was having a gout flare in her big toe on June 25, 2014 (Tr.
362), and there is one record showing elevated uric acid levels on March 19, 2015. (Tr. 416)
However, there are no other records showing any complaints to any medical providers of gout
symptoms or flare ups. Accordingly, the ALJ’s finding that there was no evidence that gout was
causing ongoing medical signs or symptoms that would have caused additional work-related
limitations was supported by substantial evidence. Further, because the ALJ considered Brown’s
claims regarding gout, any error in his failure to conclude gout was a severe impairment was
harmless at most.

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Brown has failed to present new and material evidence showing that her impairments had
worsened to the point that her RFC had changed following the 2013 ALJ decision. ALJ
Kearney’s decision to adopt the RFC of ALJ Hixson was supported by substantial evidence in
the record. The ALJ correctly applied the holding of Drummond and SSA Ruling 98-4(6).
VII.

Conclusion
Because the ALJ properly determined that the new evidence presented by plaintiff did not

support a finding that plaintiff’s condition had changed since the ALJ’s 2013 decision, he was
bound by that prior decision. The ALJ’s finding regarding plaintiff’s residual functional capacity
was supported by substantial evidence in the record. Plaintiff has not met her burden under the
law, and the final decision of the Commissioner is AFFIRMED. Plaintiff’s complaint is
dismissed with prejudice.
IT IS SO ORDERED.

Dated: June 11, 2018
Thomas M. Parker
United States Magistrate Judge

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