Vance v. Commissioner Social Security Administration
Memorandum Opinion and Order: The decision of the Commissioner of Social Security is affirmed; plaintiff's complaint is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 9/30/14. (S,AA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JENNIFER L. VANCE,
CAROLYN W. COLVIN1,
Case No. 3:13CV1617
GEORGE J. LIMBERT
MEMORANDUM OPINION & ORDER
Plaintiff requests judicial review of the final decision of the Commissioner of Social Security
denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). ECF Dkt. #1. Plaintiff asserts that the Administrative Law Judge (“ALJ”) erred in his
decision because he failed to find that her impairments met Listing 1.04(A) and by finding that she
could perform modified light work. ECF Dkt. #11. She additionally and/or alternatively requests that
the Court remand her case based upon new evidence that she submitted. Id. at 20.
For the following reasons, the Court AFFIRMS the ALJ’s decision and dismisses Plaintiff’s
complaint in its entirety with prejudice. The Court also denies Plaintiff’s request for remand.
Plaintiff filed applications for DIB and SSI on July 7, 2010 alleging disability beginning July
14, 2009 due to “[c]rushed bones in top of neck, bad disc in back, carpal tunnel, tumor in right arm,
On February 14, 2013, Carolyn W. Colvin became the acting Commissioner of Social Security, replacing
Michael J. Astrue.
mental problems, stress.” Tr. at 152-161, 2472.
The Social Security Administration (“SSA”) denied Plaintiff’s applications initially and upon
reconsideration. Tr. at 71, 87-93, 95-97. Plaintiff requested a hearing before an ALJ which was held
on February 10, 2012. Id. at 27, 98.
On February 24, 2012, the ALJ issued a decision finding first that Plaintiff engaged in
substantial gainful activity from July 2009 through March 2010 as she returned to work after her
injury. Tr. at 13. The ALJ explained, however, that there was a continuous twelve-month period
during which Plaintiff did not engage in substantial gainful activity, so he proceeded onward in the
sequential analysis. Id.
The ALJ found at Step Two that Plaintiff had the severe impairments of adjustment
disorder/depressed mood, obesity, and degenerative disc disease (“DDD”). Tr. at 13. The ALJ further
found that none of Plaintiff’s severe impairments, either individually or in combination, met or
equaled a listed impairment in 20 C.F.R. Part 4, Subpart P, Appendix 1. Id. at 13-14. He found that
Plaintiff had the residual functional capacity (“RFC”) to perform light work with the following
modifications: the ability to alternate between sitting and standing, so long as she is not off task more
than ten percent of the workday; occasional climbing of ladders, ropes or scaffolds; occasional
stooping, kneeling, crouching and crawling; and limitations to work that is low stress, which he
defined as having occasional decision-making, “occasional setting[sic] in the work setting,” and no
strict production quotas. Id. at 15. Based upon this RFC, the ALJ found that Plaintiff could not return
to her past relevant work, but, relying upon the testimony of the vocational expert (“VE”), she could
perform other jobs existing in significant numbers in the national economy, such as the representative
Page references are to Page ID Numbers in the transcript of proceedings.
occupations of a repack room worker, office helper, or storage facility rental clerk. Id. at 19-20.
Plaintiff appealed the ALJ’s decision to the Appeals Council, but the Appeals Council denied
her request for review. Tr. at 1-7. The ALJ’s decision therefore became the final decision of the
Plaintiff appealed that decision to this Court on July 25, 2013. ECF Dkt. #1. Plaintiff, through
counsel, filed her brief on the merits on October 17, 2013. ECF Dkt. #11. Defendant filed her brief
on the merits on November 15, 2013, and Plaintiff filed a reply brief on November 27, 2013. ECF
Dkt. #s 12-13. The parties consented to the jurisdiction of the undersigned on August 6, 2014. ECF
SUMMARY OF MEDICAL EVIDENCE
On August 29, 2001, Plaintiff underwent a right carpal tunnel release surgery and on
September 12, 2011, she underwent a left carpal tunnel release surgery. Tr. at 314-316.
On November 9, 2007, chiropractor Autumn Keller evaluated Plaintiff and diagnosed her with
cervical strain/sprain. Tr. at 317-318. A cervical MRI performed on November 9, 2007 showed mild
DDD with small posterior disc osteophyte complexes at C4-C5, C5-C6, and C6-C7, with no evidence
of malalignment, stenosis, facet subluxation or cord compression. Id. at 319.
On May 22, 2009, Plaintiff presented to Dr. Hasan for medication review, an itchy ear canal
and neck pain. Tr. at 389. Dr. Hasan found a normal gait, normal extremity movements, no joint
instability and normal muscle strength and tone. Id. at 390. He noted tender muscles in the neck. Id.
He assessed otitis externa, myalga and myositis, insomnia and generalized anxiety disorder. Id.
On July 14, 2009, Plaintiff went to the emergency room after reporting that she slipped and
fell at work. Tr. at 320. She reported that she fell on her left side and she had left shoulder pain,
elbow pain and back pain. Id. X-rays of Plaintiff’s neck, left shoulder and left forearm showed no
evidence of an acute fracture or dislocation, but mild DDD with osteophyte formation in the cervical
spine and mild degenerative changes of the acromioclavicular joint in the left shoulder. Id. at 327.
An x-ray of her back showed degenerative changes of the facets at L3-L4 through L5-S1, grade I
anterolisthesis of L4 relative to L5 secondary to degenerative changes of the facets, and disc space
narrowing at L2-L3. Id. at 327-328. Plaintiff was diagnosed with shoulder strain, forearm strain,
lumbar sprain and neck sprain. Id. at 323. She was given Darvocet and discharged home. Id.
On October 15, 2009, Plaintiff underwent a MRI of her neck which showed: a broad-based disc
bulge with minimal paracentral protrusion at C3-C4 which indented the thecal sac and touched the
spinal cord without cord signal abnormality; broad-based disc bulge with facet degenerative changes
which touched the thecal sac and indented the spinal cord without cord signal abnormality; a broadbased disc bulge at C5-C6 with facet degenerative changes; a disc protrusion at C6-C7 with mild
bilateral neural foraminal narrowing with possible impingement of the nerve roots; and a disc bulge
at C7-T1. Tr. at 330. The overall impression was mulitlevel degenerative changes with possible nerve
root impingement at C6-C7 on the left. Id.
On December 7, 2009, Plaintiff participated in physical therapy and the therapist reported that
Plaintiff was working 12-hour shifts and the only thing she could not do at her job was wear an apron
because of the pressure it put on the back of her neck. Tr. at 334. Plaintiff complained of right
shoulder to elbow numbness, pinching and tightness to her cervical spine, and low back soreness. Id.
On January 12, 2010, Dr. Clark, a neurosurgeon, evaluated Plaintiff for her complaints of back
and neck pain following her slip and fall while on the job. Tr. at 368. Dr. Clark read Plaintiff’s
cervical MRI and concluded that it showed a ruptured C6-C7 disc with an extruded free fragment on
the right, causing root and cord compression, and a focal disc rupture on the left. Id. He indicated that
the individual reading the MRI indicated a left disc protrusion but missed the extruded free fragment,
which he opined was the main source of Plaintiff’s symptoms on the right side. Id. Dr. Clark opined
that Plaintiff’s motor, sensory and reflex examinations showed evidence of a clinical
myeloradiculopathy referable to the C6-C7 level and he described those findings as triceps weakness,
hypersthesias in the index and middle fingers of the right hand, and proximal leg weakness with slight
hyperreflexia. Id. at 369. He also indicated that when Plaintiff extended her head, the findings were
increased in severity. Id. Dr. Clark recommended that Plaintiff undergo an anterior cervical
microdiskectomy and fusion at C6-C7 because conservative therapy since July had failed to resolve
her symptoms. Id.
On March 6, 2010, Dr. Steinman of the Steinman Neurology Group performed an independent
medical evaluation of Plaintiff for the Bureau of Worker’s Compensation. Tr. at 337. He noted that
Plaintiff told him that after she slipped and fell on the job, she had a MRI of her neck and Dr. Clark
recommended that she undergo surgery. Id. As to her past medical history, Plaintiff reported her prior
carpal tunnel release surgeries, the removal of a tumor in her left forearm, and a prior work-related
injury affecting her neck and back when a garbage can on wheels flipped and struck her in the chin.
Id. at 338. Dr. Steinman noted that despite her current injuries, Plaintiff had not missed any time from
work and continued to work without restrictions, which included cooking, cutting and preparing food
for patients at the hospital and using skillets, pots and pans. Id.
Plaintiff informed Dr. Steinman that she had constant discomfort and pain in her neck that
radiated into her shoulders, more to the right than the left and to her elbow. Tr. at 338. She also
complained of low back pain that radiated into both lower extremities, more on the right than left side,
and numbness and tingling from her right shoulder to right elbow and from right hip to the toes on her
right foot. Id.
Dr. Steinman reviewed Plaintiff’s medical history and radiology reports, including the notes
of Dr. Clark and the October 15, 2009 MRI. Tr. at 339. Upon such review, Dr. Steinman found no
evidence of a disc extrusion and he found no nerve root compromise. Id. at 338-339. He opined that
Plaintiff did not have a myelopathy, radiculopathy or disc extrusion. Id. at 341. He concluded that
Plaintiff had multilevel cervical degenerative joint and disc disease secondary to the natural and
normal aging process. Id. Based upon his physical examination and medical record review, he opined
that insufficient credible evidence existed to support a worker’s compensation request for a surgical
intervention, post-operative physical therapy, bone growth stimulation and cervical films with flexion
and extension views. Id.
On April 14, 2010, Plaintiff presented to Dr. Hasan for her complaints of inability to sleep at
night and numbness in her arm that radiated to her right leg. Tr. at 387. He conducted an examination
and found that Plaintiff had a normal gait, normal extremity movements, no joint instability and
normal muscle strength and tone. Id. at 388. However, he noted positive straight leg raising on the
right lower extremity and a tender low back. Id. He assessed lower back pain, lumbar radiculopathy,
generalized anxiety disorder and myalgia and myositis. Id.
Physical therapy notes dated July 17, 2009 through December 14, 2010 show that Plaintiff
continuously complained of neck pain with right forearm and finger and thumb numbness, headaches,
shoulder pain, and low back pain with right leg and left leg numbness. Tr. at 343-357, 392-417. It
was noted that Plaintiff continued with physical therapy mainly for pain management. Id. at 344.
Straight leg raising was positive on the right “at full lock out” on June 23, 2010. Id.
On September 7, 2010, Dr. Tanley, Ph.D, a neuropsychologist, performed a clinical interview
and evaluation at the request of the agency. Tr. at 358. In describing her health, Plaintiff explained
that she fell at work and a 400-pound garbage can hit her in the face. Id. She reported that she had
“two shattered bones with fragments” in her neck and she had lumbar problems, but the MRI was not
low enough to show what was wrong with her back. Id. She also indicated that she felt sad, she did
not sleep, and she had no motivation. Id. Dr. Tanley found that Plaintiff’s affect was appropriate and
while Plaintiff cried during the interview, she did not report suicidal or homicidal ideations and she
did not allege guilt, hopelessness, helplessness or worthlessness. Id. at 359. He found no evidence
of anxiety, and no evidence of delusions or paranoid ideations. Id. Dr. Tanley found that Plaintiff’s
memory was intact, she was alert and oriented, and she was operating at least at the low average level
of intellectual functioning. Id.
Based upon his examination, Dr. Tanley diagnosed Plaintiff with adjustment order with
chronic depressed mood and he opined that Plaintiff’s impairment did not impair her ability to
understand and follow simple instructions or her ability to maintain attention to perform simple,
repetitive tasks. Tr. at 360. He opined that her mental impairments caused mild limits in her ability
to relate to others, and moderately impaired her ability to withstand the stress and pressures of daily
work. Tr. at 360. He rated her global assessment of functioning at 60. Id.
On October 9, 2010, Dr. Clark wrote a letter indicating that he was going to proceed with
cervical surgery on Plaintiff which Worker’s Compensation had approved. Tr. at 363. On October
25, 2010, Plaintiff underwent the anterior cervical microdiscectomy and anterior cervical arthrodesis
for diagnoses of ruptured C6-C7 disc with bilateral pain, right greater than left. Id. at 376-377. She
thereafter participated in physical therapy. Id. at 455-470.
On November 9, 2010, Plaintiff presented to Dr. Hasan for medication renewal and a request
for Ambien for insomnia. Tr. at 385. Upon examination, he found that Plaintiff had a normal gait,
no joint swelling, normal movement in all extremities, no joint instability and normal muscle strength
and tone. Id. at 386. He diagnosed myalgia and myositis and lower back pain. Id.
On December 7, 2010, Plaintiff presented to Dr. Hasan for completion of her social security
paperwork and medication renewals. Tr. at 383. He conducted an examination and found that she had
a normal gait, muscle strength and tone and no joint instability. Id. He found that she had full range
of motion in her upper extremities and decreased range of motion in the bilateral lower extremities
due to hip pain. Id. Sensory examination was normal and no motor deficits were found in Plaintiff’s
lower or upper extremities. Id. at 384. Dr. Hasan diagnosed cervical disc degeneration, lumbar
radiculopathy, and myalgia and myositis. Id.
On December 23, 2010, Plaintiff underwent cervical spine x-rays which showed post-surgical
changes but satisfactory alignment and no evidence of instability on the limited flexion and extension
of the cervical spine. Tr. at 417.
On December 28, 2010, Dr. Clark wrote a letter to Dr. Hasan indicating that Plaintiff had only
complaints of dysesthesias relating to her neck surgery, which was normal, but she also complained
of persistent pain in and about her right hip which interfered with prolonged walking and standing.
Tr. at 428. Dr Clark reported that upon examining Plaintiff, she had tenderness and clinical findings
that suggested hip disease, although he advised her that he did not see a significant focus of nerve root
or spinal cord compression in the lumbar region, but she did have DDD. Id. He told Plaintiff to ask
Dr. Hasan for a referral to an orthopedic surgeon for evaluation of her right hip pain. Id.
On January 25, 2011, Dr. Clark wrote a letter to Dr. Hasan reiterating his prior notation from
December 28, 2010 that Plaintiff had hip joint disease. Tr. at 418. Dr. Clark indicated that a
reasonable basis existed to believe that Plaintiff’s hip injury was caused by her slip and fall at work.
Id. He also stated that Plaintiff’s cervical incision was healing well and she reported improvement in
her neck and arm function. Id. He recommended that Plaintiff call her attorney to appeal the denial
by Worker’s Compensation of her hip injury claim. Id. at 419. He recommended that Plaintiff be
evaluated by an orthopedic surgeon under her Worker’s Compensation claim. Id.
On January 31, 2011, Plaintiff presented to Dr. Hasan to complete her social security
paperwork. Tr. at 431. Plaintiff informed Dr. Hasan that she was unable to work due to stiffness and
pain and numbness in her neck, lower back, hips, legs, and shoulders. Id. She also reported that she
could not sleep, had anxiety and depression, and did not like to be around people. Id. Upon
examination, Dr. Hasan noted that Plaintiff had a normal gait, no joint swelling, no joint instability
and normal muscle strength and tone. Id. She had decreased range of motion in her bilateral lower
extremities due to pain in her hips. Id. He diagnosed cervical disc degeneration, lower back pain and
lumbar radiculopathy. Id. at 432.
On February 2 and 9, 2011, Dr. Ward, a clinical psychologist, interviewed, tested and
evaluated Plaintiff in order to determine whether she had a psychological disorder and whether it
resulted from her work injury. Tr. at 443. Dr. Ward found that Plaintiff had a flat affect and a
markedly depressed and anxious mood. Id. at 445. Dr. Ward related that Plaintiff had good verbal
skills and appeared to have average intelligence, but she seemed distant interpersonally. Id. Testing
revealed that Plaintiff was experiencing a very high degree of stress and had a significant degree of
suspiciousness and anger. Id. It also showed that Plaintiff was overly sensitive to criticism,
experienced low morale and had a very depressed mood. Id. Based upon testing and her interview
of Plaintiff, Dr. Ward opined that Plaintiff had Generalized Anxiety Disorder Not Otherwise Specified
and Major Depression, Single Episode, Severe with Psychosis. Id. at 446. Dr. Ward further opined
that Plaintiff’s psychological conditions were a direct and proximate result of her July 14, 2009 work
injury. Id. She concluded that Plaintiff was temporarily and totally disabled due to her marked
difficulties with concentration and frustration tolerance, and her mood impairment, excessive anxiety,
interpersonal impairments, low energy, and her markedly poor sleep and subsequent fatigue. Id.
On March 15, 2011, Dr. Clark wrote a letter to Dr. Hasan informing him that Plaintiff returned
to his office complaining of severe low back pain with lower extremity radiation. Tr. at 425. He
noted that Plaintiff had no complaints relative to her cervical spine surgery, but she complained of the
back pain and limited ability to walk. Id. Upon examination, he noted bilateral proximal leg
weakness greater on the right side. Id. He opined that the findings and Plaintiff’s history suggested
a possible small spinal canal for which he was ordering a lumbar MRI. Id.
On April 5, 2011, Plaintiff had a lumbar spine MRI which was compared to her prior October
14, 2010 MRI and showed no significant difference from the prior exam. Tr. at 433. The April 5,
2011 MRI showed significant disc dessication and subtle loss of disc at L2-L3 which was unchanged
from the prior exam. Id. The MRI also showed a right side eccentric disc bulge at L3-L4 that effaced
the right lateral recess and neural foramen, which was also unchanged from the prior exam. Id. At
L4-L5, the MRI showed a very mild degree of diffuse posterior disc bulge at the midline with minimal
narrowing of the right side neural foramen and at L5-S1, the disc was well-preserved with no spinal
canal stenosis. Id.
On April 12, 2011, Dr. Clark wrote another letter to Dr. Hasan indicating that he evaluated her
on March 15, 2011 for bilateral proximal leg weakness, greater on the right. Tr. at 422. He indicated
that Plaintiff had weakness with lifting her thigh when in the seated position, climbing stairs and
arising from a seated position. Id. He noted that Plaintiff paid for a MRI by installment plan after
Worker’s Compensation denied her request and he found that the MRI showed neural foraminal
narrowing with root entrapment at L3-L4 and L4-L5 bilaterally, greater on the right. Id. While
suggesting the possibility and complexity of a surgery, Dr. Clark indicated that he was not urging
immediate surgical intervention. Id. He cited the Worker’s Compensation denial and the slow
progression of the condition which in half of cases is relieved by epidural steroid treatments injected
into the neural foraminas. Id. He referred Plaintiff to a pain clinic for said injections. Id. If injections
failed, Dr. Clark recommended anterior lumbar surgery at L3-L4 and L4-L5. Id.
On June 7, 2011, Dr. Clark wrote Dr. Hasan a letter explaining that Plaintiff had told him that
her worker’s compensation claim had not been resolved and they were unable to proceed with surgery
until it was resolved. Tr. at 478. He also indicated that Plaintiff’s pain had progressed in severity and
had a burning, tingling, dysesthetic character which extended to her feet. Id. He noted that standing
for Plaintiff for more than ten minutes was intolerable, as well as walking for more than five to ten
minutes. Id. She also reported that she was uncomfortable in bed and was frequently awakened when
she turned in bed because it triggered radiating pain into both of her legs. Id. Dr. Clark also noted
that Plaintiff had developed a psychological reaction to her illness, as well as almost constant acid
indigestion, which he believed was stress-related and related to her ongoing pain. Id.
On June 26, 2011, Dr. Ward wrote a letter to Plaintiff’s attorney responding to counsel’s
request that she review a June 11, 2011 psychological report by a Dr. Kuna concerning Plaintiff’s
psychological conditions and their relationship to her work injury in 2009. Tr. at 438. Dr. Ward
explained that she first evaluated Plaintiff on February 9, 2011 and opined that Plaintiff met the
criteria for the diagnosis of Generalized Anxiety Disorder and Major Depression and was temporarily
and totally disabled. Id. She recommended that Plaintiff undergo psychotherapy and Plaintiff
participated on March 29, 2011, April 6, 2011, April 19, 2011, and June 15, 2011 and had excuses for
other missed appointments. Id. Dr. Ward indicated that Plaintiff presented at sessions markedly
depressed, tearful, agitated and anxious and was preoccupied with her work injury and problems
relating to that injury, including relationship problems and financial problems as her employer was
making it difficult for her to get the medical care that she needed. Id.
Dr. Ward expressed concern over statements made by Dr. Kuna in his report. Tr. at 438. She
questioned his opinion that Plaintiff did not have a depressive disorder or an anxiety disorder or that
she needed therapy. Id. She also questioned his finding that Plaintiff had dyslexia and took three and
a half hours to complete his test. Id. She explained that Plaintiff did not take such time to complete
her test and had no trouble reading and responding to the items on that test. Id. at 438-439. Dr. Ward
did agree with Dr. Kuna that Dr. Ward erred in diagnosing Plaintiff with Generalized Anxiety
Disorder Not Otherwise Specified as no such diagnosis existed, but only because she should not have
added “Not Otherwise Specified” to the end of her diagnosis. Id. at 439. She outlined the criteria for
Generalized Anxiety Disorder and Major Depression and set forth the findings that led her to conclude
that Plaintiff met those diagnoses and they stemmed from Plaintiff’s 2009 work injury. Id.
On June 30, 2011, Plaintiff presented for individual psychotherapy with Dr. Ward. Tr. at 437.
The treatment goals were to stabilize Plaintiff’s mood and anxiety and to enhance her pain
management, daily activities, interpersonal skills and coping skills. Id. They discussed the stress that
Plaintiff felt due to her worker’s compensation claim and her unresolved pain, including unbearable
headaches and panic attacks. Id. Plaintiff also treated with Dr. Ward on July 19, 2011and Dr. Ward
noted that Plaintiff was markedly anxious, depressed and tearful and she was fearful of the future and
the ways that her life had changed since her work injury. Id.
On August 23, 2011, Dr. Hasan completed a medical source statement of Plaintiff's abilities
to perform physical work activities and the form requested that he checkmark the degree to which
Plaintiff could perform particular activities, whether "regular and continuous basis," occasionally,"
frequently," or “continuously” with the form defining each term. Tr. at 448. Dr. Hasan opined that
Plaintiff could occasionally lift and carry up to ten pounds and could never lift any higher weight. Id.
He opined that Plaintiff could sit, stand and walk up to one hour at one time without interruption and
could only do each of these activities up to one hour per eight-hour workday. Id. at 449. He
concluded that Plaintiff could ambulate up to 100 yards without the use of a cane, but a cane was not
medically necessary. Id. As to manipulation activities, Dr. Hasan opined that Plaintiff could
occasionally reach with both hands, handle objects occasionally with the right hand and frequently
with her left hand, perform fingering frequently with both hands, frequently feel with the right hand
and occasionally feel with the left hand, push/pull occasionally with both hands, and frequently
operate foot controls with both feet. Id. at 450. As to the findings that supported these limitations,
Dr. Hasan wrote that Plaintiff’s subjective symptoms of pain and weakness dictated these findings and
he indicated that there were no physical findings. Id. Dr. Hasan further opined that Plaintiff could
never climb stairs, ramps, ladders or scaffolds, or never crawl, but she could occasionally balance,
stoop, kneel and crouch. Id. at 451. As to identifying the clinical findings supporting his assessment,
Dr. Hasan wrote “subjective.” Id. Dr. Hasan also indicated that Plaintiff could occasionally move
mechanical parts and be around unprotected heights, she could frequently operate a motor vehicle and
be exposed to vibrations, and she could continuously be exposed to humidity and wetness, dust, odors
and fumes, temperature extremes and very loud noises. Id. at 452. As support for these limitations,
Dr. Hasan wrote “Subjective. No physical finding.” Id. As to activities, Dr. Hasan affirmed that
Plaintiff could shop, travel, ambulate without assistive devices, walk a reasonable pace on uneven
surfaces, use standard public transportation, climb with the use of a single hand rail, prepare a simple
meal and feed herself, care for her personal hygiene, and sort, handle and use paper/files. Id. at 453.
The form requested that Dr. Hasan place a date, if he could do so within a reasonable degree
of medical certainty, that he believed that Plaintiff’s limitations were first present. Tr. at 453. The
date that Dr. Hasan handwrote is illegible. Id. However, the form also requested that Dr. Hasan opine
whether the limitations that he opined lasted or would be expected to last more than twelve months
and Dr. Hasan checked the “No” box. Id.
On September 19, 2011, Plaintiff underwent a lumbar spine MRI which was compared to the
MRI scan of October 14, 2010. Tr. at 474. The most recent MRI showed disc dessication at L2-L3
with very minimal reduction in disc height and extremely mild bulging without evidence of canal or
foraminal stenosis, some fluid in the apophyseal joints at the L2-L3 level suggesting the presence of
some ligamentous laxity, and some mild osteoarthritic changes at the apophyscal joints at L4-L5. Id.
On September 20, 2011, Dr. Clark wrote Dr. Hasan a letter indicating that he examined
Plaintiff on that date and Plaintiff reported that Worker’s Compensation had denied her request for
surgery and she was going to meet with her attorney regarding that denial and whether she could get
an amended diagnosis of gastrointestinal upset added to her claim which she felt was related to the
stress and anxiety of her illness. Tr. at 476. Plaintiff told Dr. Clark that she continued her normal
lifestyle and despite her pain, she was staying active by gardening and mowing her grass. Id. at 476.
He cited the September 19, 2011 MRI and noted the neural foraminal narrowing and root entrapment
shown on the films. Id.
On January 25, 2012, Dr. Ward completed a medical source statement of Plaintiff’s ability to
perform work-related mental activities. Tr. at 471-473. The form requested that she check “none,”
“mild,” “moderate,” “marked,” or “extreme,” next to the degree of limitation she thought that Plaintiff
had in performing certain activities. Id. at 471. Each one of those terms was defined. Id. Dr. Ward
opined that Plaintiff had mild limitations in understanding, remembering and executing simple
instructions, moderate limitations in making judgments on simple work-related decisions, marked
limitations in understanding, remembering and executing complex instructions, interacting
appropriately with the public, supervisors, and co-workers, and in responding appropriately to usual
work situations and to changes in the work setting. Id. at 471-472. She also opined that Plaintiff had
extreme limitations in her ability to make judgments on complex work-related decisions. Id. at 471.
Dr. Ward identified the factors of decreased mood, concentration and ability to focus, and increased
anxiety as factors that supported her assessment. Id. She also concluded that Plaintiff had very low
tolerance for frustration, poor insight and limited judgment. Id. at 472. She opined with a reasonable
degree of medical certainty that the limitations that she found were first presented on February 9,
2011. Id. at 472.
SUMMARY OF TESTIMONY
On February 10, 2012, the ALJ held a hearing at which Plaintiff, represented by counsel, and
a VE testified. Tr. at 28. Plaintiff indicated that she was 46 years old and married. Id. at 31-33. She
explained that while she had a driver’s license, she had trouble driving because her legs and feet go
numb due to her back injury. Id. at 33. She related that on July 14, 2009, she had an injury while on
the job when she slipped and fell, she took one day off to rest after the injury and then returned to
work and continued to work for eight months after the injury. Id. at 34. She explained that she
collected worker’s compensation benefits but the benefits stopped two months prior to the current
hearing. Id. at 35. She testified that she did not work anywhere else after this injury. Id.
Plaintiff described her impairments, testifying that she had “an incredible amount” of pain all
day long in her back and her leg goes numb and she has to sit down a lot as a result. Tr. at 35. She
reported that the pain began at the small of her back to her hips and traveled all the way down to her
legs and toes and her toes were numb most of the day. Id. at 35, 38. She also indicated that the pain
levels varied throughout the day and from day to day and she tried to move around and exercise in
order to manage the pain. Id. at 36-37. She indicated that she took Percocet to relieve the pain and
it helped some, taking her pain level from a 9 out of 10 when at its worst to a 4 or 5 out of 10 at most.
Id. at 37. Plaintiff indicated that she saw Dr. Clark once every six weeks, Dr. Hasan once every three
months, and she was seeing Dr. Ward but had to stop two months ago because she no longer had
insurance. Id. at 38-39.
Plaintiff opined that she could walk two city blocks before she would have to sit down and rest,
she could sit for up to one hour, and she could stand for half an hour to 45 minutes but would have to
then move around by sitting down, walking, or lying down. Tr. at 39. She indicated that she slept
about two to four hours per night and she tried to clean her house, take a shower, and move around
during the day, but she spent most afternoons sitting or resting because her back pain would flare up
by then and she would take medication and lay down. Id. at 40-41. She also described her depression
and indicated that she was diagnosed with bipolar disorder and was on medication. Id. at 42.
Upon questioning by her counsel, Plaintiff testified that she would not get dressed and remain
in the same clothes that she slept in the night before five days out of seven. Tr. at 43. She reported
feelings of worthlessness because she could not work and be productive. Id. at 44. She explained that
she was treating with Dr. Ward, but worker’s compensation denied further treatment because Dr. Ward
said that Plaintiff’s condition was as good as it was going to get. Id. She also reported that she
underwent a cervical fusion with Dr. Clark and she was satisfied with the results as her neck was as
good as it was going to get. Id. at 43-46. She also indicated that she had many surgeries on her hands
and she still drops objects constantly. Id. at 47. She also explained that Dr. Clark recommended that
she have a fusion on her low back as soon as possible but worker’s compensation would not allow her
claim for low back injury related to the prior slip and fall because the neck condition was masking the
low back condition and worker’s compensation felt that the injury from the slip and fall was Plaintiff’s
neck. Id. at 48-49. Plaintiff also reported sciatic pain with leg numbness that made her sit and lay
down a lot, sometimes the entire day. Id. at 50.
Plaintiff testified that Dr. Clark told her that she should refrain from doing anything that is
excessive or too intense for her back, such as standing for long periods of time. Tr. at 51. He told her
to take breaks of 15-20 minutes per hour. Id.
The VE then testified. Tr. at 54-56. The ALJ presented a hypothetical person with Plaintiff’s
age, education and work background who could perform light work with a sit/stand option at will, so
long as the person was not off task more than 10% of the work period, with limitations of occasional
climbing of ladders, ropes or scaffolds, frequent climbing of ramps and stairs, frequent balancing,
occasional stooping, kneeling, crouching and crawling, and limitations to low stress jobs, defined as
having occasional decision-making, occasional changes in the work setting and no strict production
quotas. Id. at 55. The VE testified that such a person could not perform Plaintiff’s past relevant work,
but she could perform a significant number of jobs existing in the national economy, including the
occupations of repack room worker, office helper, or storage facility rental clerk. Id. at 55-56.
The ALJ modified the hypothetical individual to include an individual who could engage in
sedentary work with the sit/stand option and 10% off task maximum, no climbing of ladders, ropes,
scaffolds, ramps or stairs, no crawling, occasional balancing, stooping, kneeling and crouching, the
ability to sit down one hour out of an eight-hour workday, standing a maximum of one hour of an
eight-hour workday, and the ability to lay down five out of eight hours of an eight-hour workday. Tr.
at 56. The VE testified that no jobs existed for such a person. Id.
The ALJ then questioned the sit-stand option and the maximum break time tolerated by
employers, with the VE responding that the Dictionary of Occupational Titles did not address the sitstand option but she was providing information based upon her observations that employers tolerated
another 30 to 45 minutes of breaks in addition to two fifteen minute breaks and a lunch break. Tr. at
56-57. The VE also indicated that exceeding the amount of breaks normally tolerated by employers
would result in the inability to engage in full-time competitive employment. Id.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to DIB
and SSI. These steps are:
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));
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));
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));
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));
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)).
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden of going forward
with the evidence at the first four steps and the Commissioner has the burden at Step Five to show
that alternate jobs in the economy are available to the claimant, considering her age, education, past
work experience and RFC. See Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
STANDARD OF REVIEW
This Court’s review of the ALJ’s decision is limited in scope by § 205 of the Social Security
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 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 Court cannot reverse the decision of an ALJ, even if substantial evidence exists in the
record that would have supported an opposite conclusion, so long as substantial evidence supports the
ALJ’s conclusion. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). Substantial
evidence is more than a scintilla of evidence, but less than a preponderance. Richardson v. Perales,
402 U.S. 389, 401 (1971). It is evidence that a reasonable mind would accept as adequate to support
the challenged conclusion. Id.; Walters, 127 F.3d at 532. Substantiality is based upon the record
taken as a whole. Houston v. Sec’y of Health & Human Servs., 736 F.2d 365 (6th Cir. 1984).
Plaintiff first asserts that the ALJ erred at Step Three of the sequential evaluation when he
failed to discuss any findings or reasoning as to why Plaintiff’s impairments did not meet Listing
1.04(A). Plaintiff asserts that her impairments meet Listing 1.04(A).
The Listing of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 describes
impairments for each of the major body parts that are deemed of sufficient severity to prevent a person
from performing gainful activity. 20 C.F.R. § 416.920. In the third step of the analysis to determine
a claimant’s entitlement to social security benefits, it is the claimant’s burden to bring forth evidence
to establish that her impairments meet or are medically equivalent to a listed impairment. Evans v.
Sec’y of Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987). In order to meet a listed
impairment, the claimant must show that her impairments meet all of the requirements for a listed
impairment. Hale v. Sec’y, 816 F.2d 1078, 1083 (6th Cir. 1987). An impairment that meets only some
of the medical criteria and not all does not qualify, despite its severity. Sullivan v. Zebley, 493 U.S.
521, 530 (1990).
Listing 1.04(A) provides:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
In his decision, the ALJ began his Step Three analysis by specifically indicating that he had
evaluated Plaintiff’s musculoskeletal impairments “in the context of Listing 1.04.” Tr. at 14. He went
on to conclude that “claimant does not manifest clinical signs and findings that meet the specific
criteria of any of the Listings.” Id. He further stated that “[i]n reaching this conclusion, the opinions
of the State Agency medical consultants have been considered. These medical professionals have
evaluated this issue at the initial and reconsideration levels of the administrative review process and
reached the same conclusion. (20 C.F.R. 404.1527 and Social Security Ruling 96-5p.).” Id. This is
the extent of the ALJ’s analysis supporting his finding that Plaintiff’s impairments did not meet
Standing alone, it is questionable as to whether this analysis suffices to support a finding that
Plaintiff’s impairments did not meet Listing 1.04(A). However, the Court may look at the rest of the
ALJ’s decision in order to determine whether substantial evidence supports the ALJ’s Step Three
determination. See Smith-Johnson v. Comm’r of Soc. Sec., 2014 WL 4400999, at *8 (it was proper
for the court to look at other steps of ALJ’s decision to determine Step Three analysis), citing Bledsoe
v. Barnhart, 165 Fed. App’x 408, 411 (6th Cir. 2006) and Snoke v. Astrue, No. 2:10CV1178, 2012 WL
568986 (S.D. Ohio, Feb. 22, 2012), unpublished (“[r]ather, a court must read the ALJ’s step-three
analysis in the context of the entire administrative decision and may use other portions of a decision
to justify the ALJ’s step-three analysis.”).
Upon review of the entirety of the ALJ’s decision, the Court finds that substantial evidence
supports his determination that Plaintiff’s impairments did not meet Listing 1.04(A). In his Step Four
analysis, the ALJ discussed the conflicting medical evidence surrounding Plaintiff’s October 15, 2009
cervical MRI. Tr. at 16-17. He cited to Dr. Clark’s interpretation of the MRI concluding that Plaintiff
had a ruptured disc at C6-C7 with an extruded free fragment which was causing root and cord
compression. Id. at 17. He then noted Dr. Steinman’s opinion that the same MRI did not show a
ruptured disc at C6-C7 or nerve root or cord compression but showed only degenerative joint and disc
disease secondary to the natural and normal aging process. Id. Dr. Clark also found that Plaintiff had
triceps weakness and motor, sensory and reflex examinations showed evidence of a clinical
myeloradiculopathy. Id. at 369. But Dr. Steinman found no clinical evidence of foraminal
encroachment, no specific right triceps weakness and no evidence of a disc rupture, hyperreflexia,
myelopathy, or radiculopathy. Id. at 340-341.
While noting the conflicting reports, the ALJ did not determine whether Plaintiff had a nerve
root compression of the cervical spine or whether Plaintiff had motor loss. However, even presuming
that Plaintiff’s cervical impairment met the nerve root compression and motor loss components of the
first part of Listing 1.04(A), the ALJ’s Step Four discussion establishes that she did not meet that part
of the Listing requiring that the motor loss be accompanied by sensory or reflex loss. In assessing
Plaintiff’s credibility, the ALJ found that the record did not clearly demonstrate that Plaintiff had the
sensation loss, reflex abnormalities or other factors associated with intense and disabling pain. Tr. at
18. The record supports the ALJ’s findings. Dr. Steinman did note that sensory testing revealed an
altered light touch perception in the right upper extremity. Tr. at 340. However, he noted normal
strength testing and no reflex asymmetry. Id.
Further, Dr. Clark did not cite sensory or reflex
findings in his physical examination, except to state that motor, sensory and reflex examinations
showed to him evidence of a clinical myeloradiculopathy, which Dr. Steinman disputed.
The most descriptive clinical examination evidence comes from Plaintiff’s primary care
physician, Dr. Hasan, who noted on physical examinations on May 22, 2009, April 14, 2010,
November 9, 2010, December 7, 2010, January 31, 2011, March 29, 2011 that Plaintiff had normal
motor strength, no joint swelling or instability, and normal sensory examinations with no motor
deficits in her upper and lower extremities. See Tr. at 383-390, 428-432. In addition, in his medical
source statement, Dr. Hasan indicated that he had no physical findings when he was asked to identify
the medical or clinical findings supporting his very severe restrictions for Plaintiff’s physical workrelated abilities. Id. at 452. He indicated that it was Plaintiff’s subjective symptoms of pain and
weakness that supported the restrictions that he determined for Plaintiff. Id. at 450. Further, the ALJ
gave little weight to Dr. Steinman’s opinion that Plaintiff had no severe impairment at all. Tr. at 17.
He did note, however, that despite the MRI results, Plaintiff continued to work full-time, even
completing 12-hour shifts. Id. at 16.
As to Plaintiff’s lumbar spine impairment, the ALJ cited the medical evidence showing that
x-rays confirmed that Plaintiff had DDD of the lumbar spine, but he noted that Dr. Clark’s clinical
findings conflicted, as in an April 12, 2011 letter to Dr. Hasan, Dr. Clark advised that the clinical
examination suggested a possible bilateral intraforaminal root compression. Tr. at 27, citing Tr. at
422. However, in his December 28, 2010 letter to Dr. Hasan, Dr. Clark indicated that he advised
Plaintiff that his clinical findings did not detect a significant focus of nerve root or spinal compression
in the lumbar region. Tr. at 27, citing Tr. at 428. A lumbar spine MRI dated April 5, 2011 showed
no nerve or cord compression or evidence of stenosis. Id. at 433. A September 19, 2011 MRI of the
lumbar spine showed L2-L3 disc dessication with very minimal reduction in disc height and extremely
mild disc bulging without evidence of canal or foraminal stenosis with fluid in the apophyseal joints
at L2-L3 and no evidence of significant disc bulging or canal or foraminal stenosis. Id. at 474-475.
No finding was made of nerve compression.
Similar to the cervical spine findings, however, the ALJ did not determine this conflict or make
a finding that Plaintiff had or did not have nerve root compression in her lumbar spine. Tr. at 14.
However, the Court finds that the same Step Four findings by the ALJ used for Plaintiff’s cervical
impairment in not meeting the requirements of Listing 1.04(A) also provide sufficient evidence in
which to find that her lumbar impairments do not demonstrate the sensory or reflex loss component
to motor loss required by Listing 1.04(A). Again, in assessing Plaintiff’s credibility, the ALJ found
that the record failed to clearly demonstrate that Plaintiff had “a significantly limited range of
motion...muscle atrophy, motor weakness, sensation, loss or reflex abnormalities” that confirmed
intense and disabling pain. Tr. at 18. Dr. Hasan’s treatment notes consistently indicate that upon
physical examination, Plaintiff had normal motor strength, no joint swelling or instability, and normal
sensory examinations with no motor deficits in her upper and lower extremities. See id. at 383-390,
428-432. Dr. Hasan’s medical source statements also indicated that no physical findings could be
identified for the support of his very restrictive limitations for Plaintiff’s physical work-related
abilities as his limitations were based upon her subjective symptoms of weakness and pain. Id. at 450,
452. In addition, as to both Plaintiff’s cervical and lumbar impairments, the ALJ relied upon the
opinions of the state agency reviewing physicians who reviewed the medical evidence in Plaintiff’s
file under Listing 1.04 and determined that Plaintiff’s impairments did not meet Listing 1.04. Tr. at
17, citing Tr. at 72-84.
For these reasons, the Court finds that substantial evidence supports the ALJ’s decision finding
that Plaintiff’s cervical and lumbar impairments did not meet Listing 1.04(A). The ALJ’s decision
as a whole sufficiently discussed the criteria of Listing 1.04(A) and cited to sufficient evidence in the
record to allow this Court to find substantial evidence for the ALJ’s Step Three finding.
Plaintiff also challenges the ALJ’s physical RFC finding, asserting that substantial evidence
does not support his modified light work determination. ECF Dkt. #11 at 19-22. For the following
reasons, the Court finds that substantial evidence supports the ALJ’s RFC determination .
It is the ALJ who is responsible for determining a claimant’s RFC. 20 C.F.R. § 404.1546(c);
Fleisher v. Astrue, 774 F.Supp.2d 875, 881 (N.D. Ohio 2011). The RFC is the most that a claimant
can still do despite her restrictions. SSR 96-8p. It is “an administrative assessment of the extent to
which an individual’s medically determinable impairment(s), including any related symptoms, such
as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to
do work-related physical and mental activities.” Id. It is a claimant’s “maximum remaining ability
to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the
RFC assessment must include a discussion of the individual’s abilities on that basis.” Id. The Ruling
defines a “regular and continuing basis” as 8 hours per day, five days per week, or the equivalent
In determining a claimant’s RFC, SSR 96-8p instructs that the ALJ must consider all of the
following: (1) medical history; (2) medical signs and lab findings; (3) the effects of treatment, such
as side effects of medication, frequency of treatment and disruption to a routine; (4) daily activity
reports; (5) lay evidence; (6) recorded observations; (7) statements from medical sources; (8) effects
caused by symptoms, such as pain, from a medically determinable impairment; (9) prior attempts at
work; (10) the need for a structured living environment; and (11) work evaluations. SSR 96-8p. The
ALJ must provide “a narrative discussion “describing how the evidence supports each conclusion,
citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities,
observations).” Id. The ALJ must also thoroughly discuss objective medical and other evidence of
symptoms such as pain and set forth a “logical explanation” of the effects of the symptoms on the
claimant’s ability to work. Id.
In the instant case, the Court finds that substantial evidence supports the ALJ’s physical RFC
and he adequately fulfilled the requirements of SSR 96-8p. The ALJ reviewed Plaintiff’s medical
history, citing her fall at work and x-rays taken thereafter which showed only degenerative changes
and a possible nerve root impingement at C6-C7 on the left. Tr. at 16. The ALJ noted that despite this
fall and possible nerve root impingement, Plaintiff continued to work full-time and did not miss any
time from work. Id. The ALJ also cited the conflict in the medical evidence regarding her cervical
spine MRI which her treating neurosurgeon interpreted as showing a rupture disc at C6-C7 with an
extruded free fragment and cord compression, while another doctor stated that no ruptured disc was
shown but rather evidence of degenerative joint and disc disease secondary to the natural and normal
aging process. Id. at 17. The ALJ noted that despite the conflicting medical reports, Plaintiff
nevertheless underwent cervical spinal fusion surgery in October 2010 with an additional imaging
study during that time which showed a herniated disc in her cervical spine. Id.
The ALJ reviewed the evidence following the cervical surgery which showed no evidence of
instability at the surgical site in December 2010 and no complaints by Plaintiff as to her neck except
dysesthesias which was normal in December of 2010 and no complaints at all about her neck in March
of 2011. Tr. at 17, citing 417, 425, 428. The ALJ noted that following her neck surgery, Plaintiff’s
complaints shifted to her lower back, of which her treating neurosurgeon presented differing medical
opinions as to whether there was any type of spinal cord compression. Tr. at 17, citing Tr. at 422, 428.
In addition to the medical history, the ALJ also discussed the opinions of Dr. Hasan as to
Plaintiff’s limitations. Tr. at 17. The ALJ noted Dr. Hasan’s strict restrictions for Plaintiff’s abilities,
but highlighted Dr. Hasan’s opinions that the limitations had not lasted more than one year and were
not expected to last for more than one year. Tr. at 17, citing Tr. at 453. The ALJ also discussed
Plaintiff’s credibility as to the intensity and limiting effects of her impairments and pain, noting that
Plaintiff continued to work full-time after she fell at work and objective medical evidence by Dr.
Hasan showed no significant range of motion loss, muscle spasm, muscle atrophy, motor weakness
of loss, or reflex abnormalities which are usually associated with intense and disabling pain. Tr. at
18. Dr. Hasan’s treatment notes support the ALJ’s finding. He noted on April 14, 2010, November
9, 2010, December 7, 2010, and January 31, 2011 that upon physical examination, Plaintiff presented
with a normal gait, normal extremity movements, no joint instability and normal muscle strength and
tone. Tr. at 384, 386, 388, 431. Further, on the same medical source statement in which Dr. Hasan
severely restricted Plaintiff’s abilities and opined that Plaintiff’s impairments would not last or be
expected to last for twelve months or more, he further stated that his restrictions were based upon
Plaintiff’s subjective symptoms and no physical findings. Id. at 450, 451, 452. Finally, the ALJ also
relied upon the state agency physicians’ opinions, who indicated that Plaintiff’s impairments limited
her to light work, with the restrictions that he used in his RFC. Id. at 17.
Keeping in mind the standard of review which is whether substantial evidence supports the
ALJ’s determination, even if substantial evidence may support the opposite conclusion, the Court finds
that substantial evidence supports the ALJ’s determination that Plaintiff could perform a modified
range of light work.
Plaintiff also requests that the Court remand her case based upon additional evidence that she
has submitted to this Court with her merits brief. ECF Dkt. #11 at 20; #11-1. She asserts that this
evidence of 179 pages of medical records is new and material and good cause existed for not
submitting said evidence to the ALJ. Id. She contends that the evidence is new because it was not
before the ALJ, it is material because it shows the continuation and worsening of her symptoms, and
she asserts that good cause existed for not submitting it to the ALJ because it was not available until
after the hearing. Id.
Sentence six of § 405(g) addresses situations where a claimant submits new evidence that was
not presented to the ALJ but that could alter the ALJ's ultimate decision. Sentence six of § 405(g)
provides, in relevant part:
The court ... may at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding; and the Commissioner of Social
Security shall, after the case is remanded, and after hearing such additional evidence
if so ordered, modify or affirm the Commissioner's findings of fact or the
Commissioner's decision, or both....
4 42 U.S.C. § 405(g).
A “sentence six” remand is appropriate “only if the evidence is ‘new’ and ‘material’ and ‘good
cause’ is shown for the failure to present the evidence to the ALJ.” Ferguson v. Comm'r of Soc. Sec.,
628 F.3d 269, 276 (6th Cir.2010). Evidence is “new” if it did not exist at the time of the administrative
proceeding and “material” if there is a reasonable probability that a different result would have been
reached if introduced during the original proceeding. Id. “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.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir.2001). “The party seeking a remand
bears the burden of showing that these [ ] requirements are met.” Hollon ex rel. Hollon v. Comm'r of
Soc. Sec., 447 F.3d 477, 483 (6th Cir.2006). Courts “are not free to dispense with these statutory
requirements.” Id. at 486.
In order to show good cause, a claimant is required to detail the obstacles that prevented her
from entering the evidence in a timely manner. Bass v. McMahon, 499 F.3d 506, 513 (6th Cir.2007).
“The mere fact that evidence was not in existence at the time of the ALJ's decision does not
necessarily satisfy the ‘good cause’ requirement.” Courter v. Comm’r of Soc. Sec., 479 Fed. Appx.
713, 725 (6th Cir.2012). The Sixth Circuit “takes a harder line on the good cause test' with respect to
timing and thus requires that the claimant ‘give a valid reason for his failure to obtain evidence prior
to the hearing.’” Id., quoting Oliver v. Sec’y of Health & Human Servs., 804 F.2d 964, 966 (6th
In a sentence-six remand, the court does not rule in any way on the correctness of the
administrative decision, neither affirming, modifying, nor reversing the Commissioner's decision.
Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). “Rather, the court
remands because new evidence has come to light that was not available to the claimant at the time of
the administrative proceeding and that evidence might have changed the outcome of the prior
“‘Good cause’ is shown for a sentence-six remand only ‘if the new evidence arises from
continued medical treatment of the condition, and was not generated merely for the purpose of
attempting to prove disability.’” Payne v. Comm'r of Soc. Sec., No. 1:09–cv–1159, 2011 WL 811422,
at * 12 (W.D.Mich. Feb.11, 2010), unpublished (finding that evidence generated after the hearing and
submitted to the Appeals Council for the purpose of attempting to prove disability was not “new”).
Plaintiff does not discuss the additional medical evidence that she has submitted in any detail.
She merely submits the medical records and concludes that all 179 pages are new and material because
they were not submitted to the ALJ and good cause exists for not submitting them to the ALJ . ECF
Dkt. #11 at 20. However, some of these records are not “new” in that they are already contained in
her record before the ALJ. Compare, for example, ECF Dkt. #11-1 at 9 with Tr. at 480; ECF Dkt.
#11-1 at 12-13 with Tr. at 478-479; ECF Dkt. #11-1 at 14-15. Moreover, other of the records are not
material in that they have nothing to do with the impairments for which Plaintiff sought social security
benefits. See ECF Dkt. #11-1 at 16-17, 29-31 (records showing imaging and procedure for vaginal
bleeding and imaging of sinuses).
Further, to the extent that Plaintiff argues that the records that are actually new are material
because they show the deterioration of her conditions or symptoms, this argument fails. Evidence of
a deterioration of a condition is not relevant since it “does not demonstrate the point in time that the
disability itself began.” Sizemore v. Sec’y of Health and Human. Servs., 865 F.2d 709, 712 (6th Cir.
1988). Here, while the after-acquired evidence shows that Plaintiff’s back condition deteriorated and
she underwent back surgery in August of 2013, the evidence fails to show and Plaintiff fails to
otherwise argue that the date upon which her back impairment actually became disabling had occurred
during the relevant time period at issue in this case. Tr. at 159-161. The same can be said of
Plaintiff’s mental conditions. Further, even some of the “new” records that Plaintiff submitted show
normal physical examinations and an October 23, 2012 letter from Dr. Clark to Dr. Hasan indicates
that Plaintiff reported that her neck pain was greatly improved from surgery and his physical
examination and her reported pain pattern did not fit the clinical picture that he expected from a
lumbar region problem and surgery would not help with her problem. ECF Dkt. #11-1 at 20. Further,
a March 20, 2013 MRI of Plaintiff’s lumbar spine showed no nerve root compression. Id. at 114. In
addition, Plaintiff has failed to argue and the remaining records fail to show that the Commissioner
would have reached a different decision if presented with this additional evidence. See Foster v.
Halter, 279 F.3d 348, 358 (6th Cir. 2001).
For the above reasons, the Court AFFIRMS the
decision of the Commissioner and
DISMISSES Plaintiff’s complaint in its entirety WITH PREJUDICE.
Dated: September 30, 2014
/s/ George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE
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