Glasco v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION Adopting Report and Recommendation re 15 Amended Motion to remand denied. Judge David A. Katz on 7/6/15. (G,C)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

TIMOTHY E. GLASCO,
Plaintiff,

Case No. 3:14 CV 2134

-vsMEMORANDUM OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
KATZ, J.
I. Introduction
Timothy E. Glasco applied for social security disability insurance benefits with the Social
Security Administration. After exhausting his available administrative remedies, the
Commissioner of Social Security denied Mr. Glasco’s application for benefits.
Mr. Glasco then sought judicial review of the Commissioner’s decision. After the
Commissioner filed the answer and transcript, Mr. Glasco filed an amended motion to remand
pursuant to 42 U.S.C. § 405(g). (Doc. No. 15). The case was referred to Magistrate Judge
Kathleen B. Burke for findings of facts, conclusions of law, and recommendations.
The Magistrate Judge issued a report recommending that the Court deny Mr. Glasco’s
amended motion to remand because he had not satisfied the statutory requirements for purposes
of supplementing the record. (Doc. No. 18). This matter is before the Court pursuant to Mr.
Glasco’s timely objections to the Magistrate Judge’s report. (Doc. No. 19). The Commissioner
has filed a response to Mr. Glasco’s objections. (Doc. No. 20).
The Court has jurisdiction over the Commissioner’s final decision denying Mr. Glasco’s
request for benefits pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). McClanahan v. Comm’r of
Soc. Sec., 474 F.3d 830, 832 (6th Cir. 2006). In accordance with United States v. Curtis, 237

F.3d 598, 602–03 (6th Cir. 2001), this Court has made a de novo determination of the Magistrate
Judge’s report. For the reasons stated below, the Court adopts the report and affirms the denial
of Mr. Glasco’s motion to remand.
II. Standard of Review
The Court conducts a de novo review of those portions of the Magistrate Judge’s report
to which Mr. Glasco objects. 28 U.S.C. § 636(b)(1). In so doing, the Court reviews the
Commissioner’s decision to determine whether it is supported by substantial evidence. 42
U.S.C. § 405(g). This Court “must affirm the Commissioner’s conclusions absent a
determination that the Commissioner has failed to apply the correct legal standards or has made
findings of fact unsupported by substantial evidence in the record.” Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 528 (6th Cir. 1997). The Court does not re-weigh the evidence, but must
affirm the Commissioner’s findings as long as there is substantial evidence to support those
findings. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
Substantial evidence is 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.
Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010) (citations and internal quotation
marks omitted). The Commissioner’s decision is not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion. Id. at 854–55.
III. Discussion
The Magistrate Judge accurately set forth the procedural history of this case. Because the
parties have not objected, the Court adopts the Magistrate Judge’s summary as follows:
In September 2004, Glasco applied for disability benefits. Tr. 83. His
application was denied in 2008. Tr. 83. His file associated with the 2004 application
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was destroyed. Tr. 83. On February 2, 2012, Glasco protectively filed an application
for DIB, alleging a disability onset date of February 24, 2004. Tr. 8, 169. Because
Glasco’s previous file was destroyed, the Commissioner could not adopt the prior
ALJ’s decision relevant to the same time period encompassed in Glasco’s current
application. Tr. 83. Accordingly, the time period covered by Glasco’s current claim
overlaps to some extent with the time period covered in his prior claim. His claim
runs from his alleged onset date in 2004 until the date last insured, December 31,
2008. Tr. 8, 10.
Glasco alleged disability based on the following: chronic deconditioning,
fibromyalgia, chronic anemia, corpus callosum syndrome, hemochromatosis,
cirrhosis, renal insufficiency, depression, anxiety, optic nerve dysfunction, and
hepatorenal syndrome. Tr. 210. After denials by the state agency initially (Tr. 104106) and on reconsideration (Tr. 108-110), Glasco requested an administrative
hearing. Tr. 111-112. A hearing was held before Administrative Law Judge (“ALJ”)
William Wallis on August 30, 2013. Tr. 21-81. At the hearing, Glasco was not
represented by counsel; he testified and his wife also testified. Tr. 22-80. In his
September 13, 2012, decision (Tr. 8-16), the ALJ determined that, between his
alleged onset date and his date last insured, there were jobs that existed in significant
numbers in the national economy that Glasco could have performed, i.e., he was not
disabled. Tr. 16. Glasco requested review of the ALJ’s decision by the Appeals
Council (Tr. 4) and, on September 13, 2013, the Appeals Council denied review,
making the ALJ’s decision the final decision of the Commissioner. Tr. 5-7.
Glasco filed a Complaint in this Court and, thereafter, a Motion to Remand.
Docs. 12, 15. He argues that this case should be remanded “for purposes of
consideration of new and material evidence to complete the record and for proper
reconsideration of the record and the evidence in that record.” Doc. 15, p. 1. He cites
to additional medical records from the relevant period— between February 24, 2004
and December 31, 2008—that were not included in the record before the ALJ. Doc.
15, p. 8; Doc. 12-1 through 12-7. The Commissioner opposes Glasco’s motion. Doc.
16.
(Doc. No. 18 at 2-3).
Section 405(g) authorizes two types of remand: (1) a post-judgment remand in
conjunction with a decision affirming, modifying, or reversing the decision of the Commissioner
(a Sentence Four remand); and (2) a pre-judgment remand for consideration of new and material
evidence that for good cause was not previously presented to the Commissioner (a Sentence Six
remand). Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994)
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(quotations omitted). In her report, the Magistrate Judge correctly noted Mr. Glasco failed to
specify what type of remand he was requesting. She first noted Mr. Glasco cited the Sentence
Six standard and argued remand for consideration of new and material evidence. She also noted
that Mr. Glasco argued the state agency did not fully develop the record and the ALJ did not
conduct a full and fair hearing, which are relevant to a Sentence Four remand. See Faucher, 17
F.3d at 174 (6th Cir. 1994). As a result, the Magistrate Judge considered and denied Mr.
Glasco’s arguments under both theories. Mr. Glasco now objects to the Magistrate Judge’s
decision concerning the same. The Court will address each objection in turn.
Sentence Six
A Sentence Six remand under § 405(g) is not based on a review of the merits of the
administrative decision below, but “upon a showing that there is new evidence which is material
and there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding. . . .” Section 405(g); Faucher, 17 F.3d at 175. “Evidence is new only if it was not
in existence or available to the claimant at the time of the administrative proceeding.” Hollon ex.
rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 484 (6th Cir. 2006).
Mr. Glasco is attempting to establish disability for a time period not directly preceding
his application for benefits – between February 24, 2004 and December 31, 2008. Mr. Glasco
argues “that there are an additional 96 pages of records from 2004-2008 that were not included
in the record before the ALJ; [and] only 62 pages of records from 2004-2008 were included.”
(Doc. No. 18 at 7; Doc. No. 15 at 9). The Magistrate Judge denied his Sentence Six request for
remand because “Glasco ha[d] not shown that the evidence he wishe[d] to add was unavailable
to him,” i.e., the evidence was not new. (Doc. No. 18 at 9).

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Mr. Glasco objects to the Magistrate Judge’s finding because “looking at the totality of
the circumstances surrounding [his] case, it is clear that the evidence submitted prior to the
administrative proceeding was in fact ‘new’ evidence.” (Doc. No. 19 at 3). Mr. Glasco argues –
for the first time on objection – that the evidence should be considered unavailable, and thus
new, because he was unrepresented by counsel. (Doc. No. 19 at 4). It is well established that a
party may not raise an argument or advance a theory before a District Judge that was not fairly
presented to the Magistrate Judge, and that failure to raise the argument before the Magistrate
Judge constitutes waiver of the same. Murr v. United States, 200 F.3d 895, 902 (6th Cir. 2000).
Even so, as the Magistrate Judge points out, “Glasco submitted additional evidence during his
appeals process and [did] not allege that he was unable to acquire certain medical records.”
(Doc. No. 18 at 8). The fact that Mr. Glasco was unrepresented does not change the fact that
these records were available.
Mr. Glasco also objects to the Magistrate Judge’s finding that the state agency forms
adequately requested medical records from the relevant time period. Mr. Glasco argues that “the
medical record clearly shows multiple forms issued by the [s]tate [a]gency requesting only
medical records from after the date last insured.” (Doc. No. 19 at 6) (citing Tr. 1263, 1516,
1523, 1894) (emphasis in original). While it is true that some medical record requests ask for
records after the date last insured, Mr. Glasco ignores the medical records requests sent to those
same treatment providers asking for records during the relevant time period. (Tr. 270, 361, 604).
For example, Mr. Glasco points to state agency requests for records after the date last insured to
St. Rita’s Hospital and OSU Medical Center. (Doc. No 19 at 6) (citing Tr. 1263, 1894). The
state agency, however, also requested medical records from St. Rita’s and OSU Hospitals for

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records during the relevant time period – between 2004 and 2008. (See Doc. No. 15 at 5; Tr.
361; Tr. 604). Mr. Glasco conceded as much to the Magistrate Judge, and to argue otherwise
now weighs heavily against his credibility. (See Doc. No. 15 at 5).
Similarly, Mr. Glasco objects that certain medical record requests “did not include any
reference at all to the ‘relevant time period’ or the date last insured.” (Doc. No. 19 at 6). The
forms Mr. Glasco’s references, however, adequately request Mr. Glasco’s medical history, which
would logically include all records connected to Mr. Glasco’s treatment at that particular
medical facility. Because the Magistrate Judge accurately concluded the evidence was not new,
she was not required to made a good cause determination. Oliver v. Sec’y of Health & Human
Servs., 804 F.2d 964, 966 (a claimant must satisfy all three requirements – new, material, good
cause – in order to obtain Sentence Six remand). Accordingly, Mr. Glasco’s objections
concerning his request for a Sentence Six remand are overruled.
Sentence Four
An ALJ has a duty to develop the record because of the non-adversarial nature of Social
Security benefits proceedings. See Heckler v. Campbell, 461 U.S. 458, 470 (1983). The Sixth
Circuit has emphasized that this duty is particularly important when a claimant is acting pro se.
See Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983). Thus,
“[u]nder special circumstances – when a claimant is (1) without counsel, (2) incapable of
presenting an effective case, and (3) unfamiliar with hearing procedures – an ALJ has a
heightened duty to develop the record.” Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456, 459
(6th Cir. 2008) (citing Lashley, 708 F.2d at 1051–1052)). This duty to develop the record,
however, is balanced with the fact that “[t]he burden of providing a complete record, defined as

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evidence complete and detailed enough to enable the Secretary to make a disability
determination, rests with the claimant.” Landsaw v. Sec’y of Health & Human Servs., 803 F.2d
211, 214 (6th Cir. 1986) (citing 20 C.F.R. §§ 416.912, 416.913(d)); see also Her v. Comm’r of
Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (explaining claimant’s burden to prove disability).
The Magistrate Judge determined the ALJ did not violate his duty to develop the record
because Mr. Glasco’s hearing stood in stark contrast to that of the plaintiff in Lashley. (Doc. No.
18 at 45); Lashley, 708 F.2d at 1052 (an ALJ had a heightened duty to develop the record when
the claimant was inarticulate, of limited intelligence, appeared easily confused; and the hearing
lasted “a mere 25 minutes,” was transcribed in 11 pages, and the ALJ failed to probe further
when he received short answers with no explanation). The Magistrate Judge noted Mr. Glasco
was educated, did not appear confused or present as inarticulate; and the hearing lasted for
almost and hour and a half and was transcribed in fifty-seven pages. (Tr. 23-80).
Mr. Glasco disagrees with the Magistrate Judge’s conclusion that he did not have
difficulty answering and understanding questions. When the ALJ asked Mr. Glasco if he could
perform work that involved sitting, Mr. Glasco responded by saying “[p]eople just, they won’t
give me a job at all. If I step in their place they don’t – they can’t afford the liability insurance.”
(Tr. 92). The Magistrate Judge characterized this statement as “evidence of an honest answer,
not difficulty understanding the question.” (Doc. No. 18 at 6). On objection, Mr. Glasco does
nothing more than disagree with the Magistrate Judge’s interpretation of this answer. (Doc. No.
19 at 15).

“An ‘objection’ that does nothing more than state a disagreement with a magistrate’s

suggested resolution, or simply summarizes what has been presented before, is not an ‘objection’

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as that term is used in this context.” Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich.
2004).
Even so, the transcript reveals Mr. Glasco was able to answer questions intelligently and
explain his conditions related to the relevant time period. (See Tr. 41-44). Moreover, the ALJ
adequately explained the date last insured, and framed his questions to remind Mr. Glasco to
describe his conditions related to that time period. Mr. Glasco understood this, and was able to
answer the ALJ’s questions. (See Tr. 41-44). This is illustrated by the ALJ’s conversation with
Mr. Glasco at the beginning of the hearing:
[ALJ]: The testimony I need to elicit from you today pertains only to your condition
as it was on or before December 31, 2008. Human nature is that we want to talk
about how things are going right now. So, if I find or feel that you’re starting to talk
about how things are today, I may need to redirect you and remind you we are
talking about how your condition was on or before 12/31/08. That’s what [sic]
relevant to your case. Now, I know things are different today, or maybe different
today, then they were back then. So it’s going to be important that we focus our
attention on how things were then, because how you are today isn’t relevant to the
period of time I’m required to consider, do you understand?
[Mr. Glasco]: Yes, sir.
(Tr. 41-42). The ALJ kept true to his promise and prefaced the majority of his questions
throughout the hearing with a reminder to the relevant time period. (See, e.g., Tr. 35, 40-44, 4651). These reminders throughout, therefore, were not in response to any confusion by Mr.
Glasco. Rather, they related back to the ALJ’s initial instruction about the difficulty – in general
– in talking about impairments related to a particular time in the past. In doing so, the ALJ
assured that anyone subsequently reading the transcript – such as this Court – had no doubt Mr.
Glasco’s answers pertained to that specific time period.

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Mr. Glasco also argues the record does not support that he was properly notified of his
date last insured. Mr. Glasco concedes, however, that he received a hearing notice which
notified him of his date last insured. (Doc. No. 19 at 18-19). Moreover, as illustrated above, the
ALJ adequately explained the relevant time period and Mr. Glasco not only responded that he
understood, but answered the ALJ’s questions about his conditions relevant to that time period.
Finally, Mr. Glasco says he waived counsel because he “was just ready to avoid any
further delays and just get the process moving along.” (Doc. No. 19 at 20). When a claimant is
not represented by counsel, an administrative law judge has a special duty to ensure that the
claimant is aware of his or her right to legal representation. Johnson v. Comm’r of Soc. Sec., 97
F. App’x 539, 542 (6th Cir. 2004). Dispositive here, it is clear that the ALJ informed Mr.
Glasco of his right to counsel – an explanation spanning over ten pages in the transcript – and
Mr. Glasco “knowingly and willingly” waived that right. (Tr. 24-33). Accordingly, Mr.
Glasco’s objections with respect to his Sentence Four request for remand are overruled.

IV. Conclusion
For the reasons set forth herein, Mr. Glasco’s objections to the Magistrate Judge’s report
are overruled. The Court finds Magistrate Judge Burke’s report to be well-reasoned and without
error. The Court, therefore, accepts the findings in the report, and specifically accepts the
ultimate conclusion that the motion to remand should be denied.
IT IS SO ORDERED.
S/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

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