Revolt v. Commissioner of Social Security

Filing 18

Memorandum Opinion and Order: The Court AFFIRMS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 10/16/2018. (D,I)

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

SHAWN REVOLT,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 3:17-cv-02167
MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Shawn Revolt (“Plaintiff” or “Revolt”) seeks judicial review of the final decision
of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) denying his
applications for social security disability benefits. Doc. 3. This Court has jurisdiction pursuant
to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the
consent of the parties. Doc. 17.
For the reasons explained herein, the Court AFFIRMS the Commissioner’s decision.
I. Procedural History
On March 11, 2014, Revolt protectively filed an application for disability insurance
benefits (“DIB”) and, on March 17, 2014, Revolt protectively filed an application for
supplemental security income (“SSI”). 1 Tr. 15, 103, 104, 181-187. Revolt alleged a disability
onset date of September 1, 2012. 2 Tr. 15, 64, 194. He alleged disability due to heart problems
(three heart attacks and five stents), collapsed lung, depression, neck pain, fatigue, numbness in

1

The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 10/15/2018)

2

The alleged onset date was amended from June 11, 2008, to September 1, 2012. Tr. 64, 194.
1

feet and arms, shortness of breath, mood swings, sexual dysfunction, and anti-social behavior.
Tr. 79-80, 105, 138, 154, 200.
After initial denial by the state agency (Tr. 138-151) and denial upon reconsideration (Tr.
154-165), Revolt requested a hearing (Tr. 166-167). A hearing was held before Administrative
Law Judge Timothy J. Keller (“ALJ”) on June 23, 2016. Tr. 51-78. On August 8, 2016, the ALJ
issued an unfavorable decision (Tr. 12-28), finding that Revolt had not been under a disability
within the meaning of the Social Security Act from September 1, 2012, through the date of the
decision (Tr. 15, 23). Revolt requested review of the ALJ’s decision by the Appeals Council.
Tr. 179-180. On August 15, 2017, the Appeals Council denied Revolt’s request for review,
making the ALJ’s decision the final decision of the Commissioner. Tr. 5-10.
II. Evidence
A.

Personal, vocational and educational evidence
Revolt was born in 1969. Tr. 181. He completed school through the ninth grade and

dropped out of school in the tenth grade. Tr. 55, 56, 201. Revolt has difficulty with reading,
writing, and performing basic math. Tr. 57-60. Revolt last worked in 2008 as a foam molder
laborer. Tr. 74-75, 200, 201.
B.

Medical evidence
1.

Treatment history

Revolt has a history of cardiac issues predating his alleged onset date. He reported
suffering a heart attack in 2002, which necessitated three stents. Tr. 254. Revolt had a second
heart attack approximately five or six years later, which required another stent. Tr. 254. On
September 13, 2011, Revolt had a stress test and followed up with his cardiologist Dr. Zoheir
Abdelbaki, M.D. Tr. 425-431. Dr. Abdelbaki noted Revolt’s history of coronary artery disease

2

(CAD) and hyperlipidemia. Tr. 429. Revolt continued to smoke; he felt tired; he had only minor
episodes of chest pains; his breathing was fair; and he indicated that he was not having as many
issues with compliance as he had in the past. Tr. 429. On examination, Dr. Abdelbaki observed
that Revolt’s lungs were clear to auscultation and there was a slight murmur noted in the heart
but no rubs or gallops. Tr. 430. Dr. Abdelbaki noted that Revolt was a high risk patient but his
CAD seemed to be stable. Tr. 430. Dr. Abdelbaki discussed the importance of smoking
cessation especially in light of Revolt’s CAD. Tr. 430. Dr. Abdelbaki recommended that Revolt
continue with his aggressive prescriptions and to report to the emergency room if he had
recurrent symptoms. Tr. 430.
On March 13, 2012, Revolt saw Dr. Abdelbaki for complaints of chest pain. Tr. 432-441.
Revolt reported chest pain, a pressure sensation when taking his nitroglycerin, and dyspnea. Tr.
436. Revolt was still smoking. Tr. 436. On examination, Revolt’s lungs were clear to
auscultation and there was a slight murmur in his heart but no rubs or gallops. Tr. 437. Dr.
Abdelbaki’s assessment was that Revolt’s CAD symptoms had been worsening. Tr. 437.
Revolt’s hypertension seemed to be under good control. Tr. 437. Dr. Abdelbaki discussed with
Revolt the importance of smoking cessation. Tr. 437. An ECG (electrocardiogram) was
performed in the office that day and Dr. Abdelbaki noted that there were no acute findings. Tr.
437. Dr. Abdelbaki recommended a stress test and that Revolt continue with risk factor
modification and medical management of his conditions. Tr. 437. A stress test was performed
on March 23, 2012. Tr. 442-443. The stress test showed mild ischemia. Tr. 443. Dr. Abdelbaki
recommended that Revolt undergo a cardiac catheterization to evaluate the coronary anatomy but
noted that Revolt had not been the most compliant with medical therapy and continued to smoke.

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Tr. 442. Dr. Abdelbaki observed that Revolt was a high risk patient with a poor prognosis. Tr.
442.
In April 2012, Revolt had open heart surgery. Tr. 260. Following his surgery, Revolt saw
his primary care physician Dr. Anuradha Rameneni, M.D., on May 2, 2012. Tr. 260-271.
Revolt followed up with Dr. Rameneni on May 4, 2012, for a wound check and dressing change.
Tr. Tr. 272-280. Revolt reported no chest pain or cough and his dyspnea was improving. Tr.
277. He did report a mild sore throat and ear pain for the prior two days. Tr. 277. Upon
examination of Revolt’s chest, Dr. Rameneni noted bilateral crackles at the base which had
improved from the prior visit. Tr. 277. Revolt’s chest wounds were healing. Tr. 277. Revolt
was alert and oriented to person, place and time. Tr. 277. He had a normal mood and affect, his
behavior was normal, and his thought content was normal. Tr. 277.
When Revolt saw Dr. Rameneni on June 14, 2012, he relayed that his surgical scars
sometimes felt tight; he had no chest pain, dyspnea or leg swelling; and he was not feeling
anxious or depressed. Tr. 603. Also, although he knew the dangers associated with smoking due
to all of his cardiac problems, he was unable to control the urges and started smoking again. Tr.
603. On cardiovascular examination, Dr. Rameneni observed a normal rate, regular rhythm, and
normal heart sounds and heard no murmur. Tr. 603. On examination of Revolt’s
pulmonary/chest, Revolt’s effort was normal, he had no wheezes, and he exhibited no
tenderness. Tr. 603. Revolt had a normal mood and affect; his behavior was normal; and his
thought content was normal. Tr. 603. Dr. Rameneni provided Revolt with a prescription for
nicoderm patches. Tr. 603-604.
Revolt saw Dr. Rameneni on July 26, 2012. Tr. 287-292. Revolt did not finish his
cardiac rehab. Tr. 287. He reported no chest pains but reported getting fatigued and having

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shortness of breath even with walking a little. Tr. 287. Revolt was feeling depressed, having
lost his brother the prior month. Tr. 287. He was having some right ear pain. Tr. 287. On
examination, Revolt had some tenderness in the right TMJ joint. Tr. 287. Cardiovascular
examination revealed normal rate, regular rhythm and normal heart sounds and no murmur. Tr.
287. Pulmonary/chest examination showed normal effort. Tr. 287. Revolt did not have edema.
Tr. 287. Revolt’s mood and affect were normal; his behavior was normal; and his thought
content was normal. Tr. 287. Dr. Rameneni discussed smoking cessation with Revolt. Tr. 288.
Revolt was advised to use warm and cold compresses on the TMJ and to see a dentist if it did not
get better. Tr. 288.
Revolt saw Dr. Rameneni on October 29, 2012, with complaints that his upper chest
continued to hurt and he was easily fatigued. Tr. 298-305. Revolt also requested that Dr.
Rameneni complete disability paperwork. Tr. 299. Revolt indicated he really could not work
anywhere because he was fatigued even after 15-20 minutes of work. Tr. 299. Revolt also
relayed that he could not sit or stand in place for more than 10-15 minutes. Tr. 299. His chest
always felt tight at the sight of the incision. Tr. 299. Revolt had dyspnea after walking 7-9
blocks. Tr. 299. Revolt indicated he was unable to work in a group because of his moods. Tr.
299. Cardiovascular examination revealed normal rate, regular rhythm and normal heart sounds;
no murmur was heard. Tr. 299. Pulmonary/chest examination showed normal effort and no
wheezes but Revolt had some chest tenderness. Tr. 299. Revolt had no edema and he was alert
and oriented to person, place and time. Tr. 299.
On November 27, 2012, Revolt saw Dr. Abdelbaki and reported that he had been “doing
fair[.]” Tr. 244. Revolt was still smoking. Tr. 244. Revolt reported some dyspnea but no
wheezing and he denied recent chest pain. Tr. 245. On examination, Dr. Abdelbaki observed

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that Revolt’s lungs were clear to auscultation. Tr. 245. There was a slight murmur in Revolt’s
heart but no rubs or gallops. Tr. 245. Dr. Abdelbaki noted that Revolt was a very high risk
patient with severe premature CAD. Tr. 245. However, Dr. Abdelbaki indicated that Revolt’s
CAD seemed to be stable and his hypertension seemed to be under good control with medical
treatment. Tr. 245. Dr. Abdelbaki discussed with Revolt the importance of smoking cessation.
Tr. 245. Dr. Abdelbaki advised Revolt to continue with risk factor modification and medical
management. Tr. 246.
Revolt saw Dr. Rameneni on January 29, 2013, for follow up. Tr. 312-319. Revolt
reported that he had been denied disability. Tr. 312. Revolt saw his cardiologist in November
2012. Tr. 312. Revolt had not stopped smoking. Tr. 312. He indicated that smoking relaxed
him and he could not stop. Tr. 312. He reported having no chest pains but he was getting very
tired and short of breath. Tr. 312. Revolt indicated that his back started hurting him the prior
month and he was still anxious and depressed. Tr. 312. He was taking Celexa and did not think
he needed to see a psychiatrist, noting that he knew all his problems. Tr. 312. Revolt’s back and
legs were very itchy and dry. Tr. 312. He relayed that he had gained some weight. Tr. 312. His
blood pressure was well controlled. Tr. 312. On physical examination of the pulmonary/chest,
Dr. Rameneni observed normal effort and no wheezes. Tr. 312. On musculoskeletal
examination, Revolt revealed tenderness in his low back, pain on flexion/extension of his low
back, negative straight leg raises, 5/5 strength, and no edema. Tr. 312. Dr. Rameneni observed
that Revolt’s behavior and thought content were normal but noted he was anxious and depressed.
Tr. 313. Dr. Rameneni indicated that Revolt refused to see a counselor for his anxiety and was
not ready to quit smoking. Tr. 313. Revolt agreed to try exercises for his back and physical
therapy and he agreed to try to lose weight. Tr. 313.

6

Revolt saw Dr. Rameneni on March 7, 2013. Tr. 325-331. Revolt requested that Dr.
Rameneni complete disability paperwork. Tr. 326. Revolt relayed that, since his heart surgery,
he had various problems, including getting very tired after any amount of housework and being
unable to function and needing to sit or lie down for an hour at times, getting very short of
breath, and having numbness, tingling, and pain in his legs and back. Tr. 326. He had no chest
pain or leg swelling and his blood pressure was well controlled. Tr. 326. Revolt relayed that he
still had anxiety for which he was taking Xanax. Tr. 326. Revolt continued to report itching all
the time. Tr. 326. Dr. Rameneni completed the disability paperwork. Tr. 327. Dr. Rameneni
recommended that Revolt stop his over-the-counter medications one at a time to determine
whether a certain medication was causing his itching. Tr. 327. Diagnostic testing was ordered
as to Revolt’s back and legs and lab work was recommended to check TSH (thyroid-stimulating
hormone) and testosterone levels. Tr. 327. Dr. Rameneni noted that all other chronic conditions
were stable and advised Revolt to continue on the current plan and medications. Tr. 327.
Revolt saw Dr. Rameneni on June 11, 2013, for follow up. Tr. 332-338-344. During the
visit, Revolt relayed that he had an accident the prior week involving his left forearm. Tr. 332,
338-339. He was putting up a ceiling for a friend and some roofing material fell on his left
forearm causing pain and swelling. Tr. 332, 339. He was “[a]ble to do all his work.” Tr. 339.
Revolt was still smoking. Tr. 339. He reported having no chest pain, dyspnea or leg swelling.
Tr. 339. He was having a lot of anxiety. Tr. 339. He was having on and off pain in his lower
back. Tr. 339. Dr. Rameneni noted that the last lumbar spine x-ray was normal. Tr. 339.
Revolt indicated that he tried to do a lot of work but became tired. Tr. 339. Dr. Rameneni
discussed lab work and the lumbar spine x-ray with Revolt, encouraged smoking cessation and

7

noted that all other chronic conditions were stable and Revolt should continue on his current plan
and medications. Tr. 340.
On September 3, 2013, Revolt saw Dr. Abdelbaki. Tr. 451-457. Dr. Abdelbaki noted
that Revolt had multiple symptoms/conditions, including stomach issues, chest pain, back pain,
coronary artery disease, dyspnea, fatigue, high blood pressure, and anxiety and depression. Tr.
452. Dr. Abdelbaki observed that Revolt was a very high risk patient who was still smoking and
very non-compliant with medications. Tr. 452, 453. On examination, Dr. Abdelbaki noted a
slight heart murmur but no rubs or gallops, no edema, lungs were clear to auscultation, and
Revolt was alert and oriented. Tr. 453. Dr. Abdelbaki recommended consideration of a followup stress test since Revolt was very high risk. Tr. 453.
Revolt saw Dr. Rameneni a few weeks later on September 19, 2013, for a routine follow
up. Tr. 345-357. Revolt indicated that he was stressed all the time but he was not interested in
medication for it. Tr. 345, 351. Revolt denied chest pain, dyspnea on exertion, leg swelling, and
wheezing. Tr. 351. He had a dry cough. Tr. 351. He indicated that he tired easily. Tr. 351.
Revolt continued to smoke and relayed that he had been eating a lot of fatty food. Tr. 351. With
the exception of a rash on his elbows and some bruising on his forearms, the physical
examination findings were unremarkable. Tr. 352. Dr. Rameneni encouraged smoking cessation
but Revolt was not ready to quit. Tr. 352. Dr. Rameneni noted that Revolt’s other chronic
conditions were stable. Tr. 353.
Revolt saw Dr. Rameneni on December 19, 2013. Tr. 364-369. Revolt relayed that he
was under a lot of stress and had not been taking his medications regularly for the past month.
Tr. 365. Revolt was still smoking. Tr. 365. He reported no chest pains and no wheezing but he
felt tired. Tr. 365. His anxiety had been okay with Celexa but stress was causing him to be

8

depressed. Tr. 365. Physical examination findings were unremarkable. Tr. 365. Dr. Rameneni
ordered a chest x-ray and pulmonary function testing. Tr. 366-367. March 28, 2014, pulmonary
function testing showed minimal obstructive airway disease-peripheral and mild diffusion defect.
Tr. 525-528.
Revolt saw Dr. Rameneni on April 23, 2014, (Tr. 377-384), reporting an upper
respiratory infection for several days with a sore throat, ear ache, nasal congestion, and cough
with wheezing (Tr. 377). He also reported having problems swallowing with gastroesophageal
reflux disease. Tr. 377. Revolt had no recent chest pain or leg swelling but had chronic fatigue.
Tr. 377. Dr. Rameneni continued to encourage smoking cessation. Tr. 379.
A few days later, Revolt saw Dr. Abdelbaki on April 29, 2014. Tr. 465-470. Revolt
reported that he had stopped smoking for two weeks. Tr. 468. He reported no changes in his
breathing but he was having atypical chest pain. Tr. 468. Dr. Abdelbaki noted a slight heart
murmur but no rubs or gallops. Tr. 469. Other examination findings were unremarkable. Tr.
469. Dr. Abdelbaki indicated that Revolt’s coronary artery disease seemed stable and his
hypertension seemed to be under good control. Tr. 469. Dr. Abdelbaki continued to discuss the
importance of smoking cessation and advised Revolt to continue with risk factor modification
and medical management. Tr. 469.
Revolt saw gastroenterologist Dr. Richard R. Capone, M.D., on June 4, 2014, for his
complaints of heartburn. Tr. 564-570. Revolt indicated that he was still smoking and reported
drinking large amounts of Mountain Dew. TR. 564. Dr. Capone noted that Revolt had not
gotten blood work or had an esophagram performed as ordered by Dr. Rameneni. Tr. 564. Dr.
Capone ordered testing. Tr. 567-569.

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On June 9, 2014, upon Dr. Rameneni’s referral, Dr. Abdelbaki performed a stress test.
Tr. 401-403. The stress test revealed a moderate amount of ischemia in the inferolateral region
and the left ventricular systolic function was reduced, with regional wall motion abnormalities.
Tr. 403. Clinical correlation was recommended. Tr. 403. On June 16, 2014, Revolt underwent a
cardiac catheterization to evaluate the coronary anatomy. Tr. 414-415. Dr. Abdelbaki concluded
that the catheterization showed very severe native vessel disease with small distal arteries; patent
grafts; multiple branches coming off the mammary artery, which could be causing some angina
and ischemia in that area; and normal left ventricular function. Tr. 415. Dr. Abdelbaki
recommended aggressive medical therapy and risk factor modification. Tr. 415.
Following the catheterization, Revolt saw Dr. Abdelbaki on July 1, 2014. Tr. 471-482. 3
Revolt was smoking. Tr. 478. Physical examination findings were generally unremarkable. Tr.
480. Revolt had a slight murmur in his heart but no rubs or gallops. Tr. 479. Dr. Abdelbaki
indicated that Revolt would have chronic symptoms of chest pain due to his underlying cardiac
condition and, as a result, Revolt would be limited in multiple areas but, at that time, Revolt’s
cardiac condition was stable. Tr. 480. Dr. Abdelbaki recommended continued risk factor
modification and medical management. Tr. 480.
Revolt saw Dr. Rameneni on January 29, 2015, for follow up regarding his chronic
medical problems. Tr. 581-583. Dr. Rameneni noted that Revolt had missed appointments and
did not complete his evaluation for his reported swallowing problems. Tr. 581. Revolt was
taking medication for his GERD and gastritis which was helping. Tr. 581. Revolt reported no
recent chest pain and no leg swelling. Tr. 581. Revolt felt tired. Tr. 581. Also, he was anxious
and taking Celexa for it but he had run out of the medication and had not refilled it. Tr. 581. Dr.

3

The July 1, 2014, treatment notes are also found at Tr. 511-524 in the transcript.
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Rameneni encouraged smoking cessation but Revolt was not ready to quit. Tr. 581. Revolt felt
that he was doing better with this throat problems and was not interested in proceeding with the
barium swallow test. Tr. 582.
On March 3, 2015, Revolt saw Dr. Abdelbaki. Tr. 549-552. Revolt reported fatigue,
tiredness, low energy, and no active angina. Tr. 549. Revolt had gained weight and was
smoking. Tr. 549. Other than a slight heart murmur, physical examination findings were
unremarkable. Tr. 550. Dr. Abdelbaki indicated that Revolt’s CAD seemed stable; Revolt
denied angina or a change in his breathing pattern; and Revolt’s hypertension seemed to be under
good control. Tr. 550. Dr. Abdelbaki discussed the importance of smoking cessation especially
with CAD and noted that COPD was likely. Tr. 550. Dr. Abdelbaki recommended risk factor
modification and medical management. Tr. 550. Dr. Abdelbaki also recommended a pulmonary
function test but Revolt did not want a lung examination at that time. Tr. 550.
On January 19, 2016, Revolt saw Dr. Abdelbaki. Tr. 561-563. Revolt reported that he
was doing “fair.” Tr. 561. He was under some stress and had gained some weight. Tr. 561. He
indicated he had some hot flash episodes. Tr. 561. There had been no changes in his breathing.
Tr. 561. He was still smoking. Tr. 561. Other than a slight heart murmur, physical examination
findings were unremarkable. Tr. 562. Dr. Abdelbaki indicated that Revolt’s CAD seemed
stable; Revolt denied angina or a change in his breathing pattern; and Revolt’s hypertension
seemed to be under good control. Tr. 562. Dr. Abdelbaki discussed the importance of smoking
cessation especially with CAD. Tr. 562. Dr. Abdelbaki had a discussion with Revolt about
obesity and diet and weight control. Tr. 562. Dr. Abdelbaki reminded Revolt to take his beta
blockers and he recommended risk factor modification and medical management. Tr. 562.

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The following day, January 20, 2016, Revolt saw Dr. Gregory Benedict Parranto, M.D.,
for follow up regarding his chronic medical conditions. Tr. 578-580. Dr. Parranto noted that
Revolt had seen Dr. Rameneni in the past. Tr. 578. Revolt complained of being lethargic and
unable to do his normal amount of work and informed Dr. Parranto that he had applied for
disability several times without success. Tr. 578. Revolt wanted to discuss his prescriptions and
needed refills. Tr. 579. Revolt was interested in quitting smoking and wanted to try Chantix.
Tr. 579. On examination, Dr. Parranto noted that Revolt was in no distress but appeared
anxious. Tr. 579. His chest was clear to auscultations and there were no wheezes, rales or
rhonchi. Tr. 579. Dr. Parranto noted that Revolt had a dry cough during the examination caused
by deep inhalation. Tr. 579. Revolt’s heart rate was normal with a regular rhythm and there
were no murmurs, rubs, clicks or gallops. Tr. 579. There was no joint tenderness, deformity or
swelling and peripheral pulses were normal and there was no pedal edema. Tr. 579. Dr.
Parranto prescribed Chantix. Tr. 580.
2.

Opinion evidence
a. Treating source

On March 7, 2013, Dr. Rameneni completed a Medical Statement Regarding Physical
Abilities and Limitations. Tr. 250-251. Dr. Rameneni opined that Revolt could work no hours
per day; sit at one time for 15 minutes; stand at one time for 15 minutes; lift 5 pounds on a “rare”
basis, i.e., 1% - 5% of an 8-hour workday; lift 5 pounds on an “occasional” basis, i.e., 6% - 33%
of an 8-hour workday; lift no weight on a “frequent” basis, i.e., 34% - 66% of an 8-hour
workday; never bend, stoop, or balance; occasionally perform fine and gross manipulation; 4
never work around dangerous equipment; occasionally/frequently operate a motor vehicle; and

4

With respect to gross manipulation with the right hand, Dr. Rameneni circled both occasionally and frequently. Tr.
250.
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unable to tolerate exposure to cold. Tr. 250. Dr. Rameneni indicated that Revolt had limited
“close vision.” Tr. 251. Dr. Rameneni opined that Revolt suffered from moderate pain. 5 Tr.
251. Dr. Rameneni opined that Revolt would need to take unscheduled breaks during the
workday every 15 minutes for 5-10 minutes due to chronic fatigue and back pain. Tr. 251. Dr.
Rameneni opined that Revolt’s symptoms would cause him to be off task for even simple work
tasks 25% or more of the time. Tr. 251. Dr. Rameneni commented that Revolt suffered from
severe CAD with several stents, chronic fatigue, and anxiety. Tr. 251.
b. Consultative examining psychologist
On April 17, 2014, consultative examining psychologist Michael J. Wuebker, Ph.D.,
conducted a psychological evaluation. Tr. 252-257. Dr. Wuebker considered a prior
psychological evaluation that he completed on July 23, 2012. Tr. 252. Revolt relayed that his
disability application was his sixth application and he was seeking disability because of “[his]
heart – [his] blood.” Tr. 252. Revolt reported being married for a short time between 1990 and
1992. Tr. 253. He had one child from his marriage. Tr. 253. Revolt also had a child from a
prior relationship whom Revolt had custody of. Tr. 253, 256. That child, a fourteen-year old
son, was incarcerated at the time of the evaluation. Tr. 256.
Revolt relayed that he had a ninth grade education. Tr. 253. Revolt attempted the GED
twice without success. Tr. 253. Revolt described himself as being a good worker when he was
employed, indicating that his attendance was not a problem and he related adequately with
coworkers and supervisors but preferred to work alone. Tr. 253. He usually was able to handle
work stress by keeping things to himself if they bothered him. Tr. 253. There were two
occasions where he got angry at someone and threw a cell phone and pop bottle on the ground.

5

The available rating choices were mild, moderate, severe, or extreme. Tr. 251.

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Tr. 253. Since he was last employed in 2008, Revolt had applied for work but had not gotten a
job. Tr. 253-254.
Revolt indicated he was healthy until he had a heart attack in 2002, which required three
stents. Tr. 254. He suffered a subsequent heart attack a number of years later, which required
another stent, and in 2012, he underwent quadruple bypass heart surgery. Tr. 254. Revolt
relayed that he had dealt with depression. Tr. 254. For a brief period in 2006, Revolt
participated in mental health counseling to work on a relationship. Tr. 254. He was taking
citalopram and felt it helped some. Tr. 254. Revolt denied having any problems with anxiety for
a while. Tr. 255.
Revolt explained that he spent time during the day watching television, playing
videogames, texting with friends, and napping. Tr. 256. Revolt occasionally visited friends and
visited with his family twice a week. Tr. 256. Revolt indicated that he interacted with his dog;
he was able to cook; and he performed light cleaning tasks, noting that he got tired fast. Tr. 256.
Revolt was able to shop. Tr. 256. He was not involved in any structured social activities. Tr.
256.
Dr. Wuebker diagnosed Other Specified Depressive Disorder – Recurrent brief
depression. Tr. 256. Dr. Wuebker found that Revolt seemed to be functioning in the low
average range of intelligence and opined that Revolt would be expected to understand and apply
instructions consistent with that intellectual functioning. Tr. 256. Dr. Wuebker opined that
Revolt maintained the flow of conversation during the interview; his attention was sufficient for
questions to be answered; he demonstrated a freedom from distractibility and indicated he had no
problem with attention, concentration, persistence or pace when he was working. Tr. 257. Dr.
Wuebker opined that Revolt exhibited no attitudes or behaviors that would indicate problems

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getting along with coworkers or supervisors. Tr. 257. Dr. Wuebker opined that Revolt would be
mentally and emotionally capable of responding appropriately to work setting pressures. Tr.
257.
c. Reviewing physicians/psychologists
Physical
On May 17, 2014, state agency reviewing physician Bruce Mirvis, M.D., completed a
physical RFC assessment. Tr. 86-87. Dr. Mirvis opined that Revolt had the RFC to occasionally
lift/carry 20 pounds; frequently lift/carry 10 pounds; stand and/or walk 6 hours in an 8-hour
workday; sit about 6 hours in an 8-hour workday and push and/or pull unlimitedly, other than as
indicated for lift/carry. Tr. 86. Dr. Mirvis explained that the exertional limitations were based
on Revolt’s back pain and past “history of heart attacks fully recovered[.]” Tr. 86. Dr. Mirvis
opined that Revolt would have the following postural limitations – frequently climbing
ramps/stairs, stooping, kneeling, crouching and crawling and occasionally climbing
ladders/ropes/scaffolds. Tr. 86-87. Dr. Mirvis opined that because of his reports of breathing
problems, Revolt would have environmental limitations. Tr. 87. He would have to avoid
concentrated exposures to extreme cold, extreme heat, wetness, humidity, and fumes, odors,
dusts, gases, poor ventilation, etc. Tr. 87.
Upon reconsideration, on September 11, 2014, state agency reviewing physician Gerald
Klyop, M.D., completed a physical RFC assessment. Tr. 112-113. Dr. Klyop reached the same
conclusions as Dr. Mirvis. Tr. 86-87, 112-113.
Mental
On April 21, 2014, state agency reviewing psychologist Ermias Seleshi, M.D., reviewed
the records and concluded that Revolt had only mild mental limitations and had no severe

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psychological impairment. Tr. 84-85. Dr. Seleshi explained that there was no current mental
health treatment, no indication of frequent exacerbations of symptoms, no hospitalizations, and
no ambulatory, emergency or crisis visits. Tr. 84. Dr. Seleshi explained further that, “[w]hile
[Revolt] may feel his depression is causing significant limitations in his functioning, objective
findings do not support a severe psychological impairment presently.” Tr. 84.
Upon reconsideration, on September 24, 2014, state agency reviewing psychologist
Bruce Goldsmith, Ph.D., reviewed the records and reached the same conclusion as Dr. Seleshi
regarding Revolt’s alleged mental impairment(s). Tr. 110-111.
C.

Testimonial evidence
1.

Plaintiff

Revolt was represented and testified at the hearing. Tr. 55-74. Revolt explained that he
has trouble reading, writing and performing basic math. 6 Tr. 57-58, 60, 62, 67-68. He needed
assistance with filling out forms throughout the social security disability application process. Tr.
59.
Revolt explained that he has had three heart attacks, five stents, open heart surgery, four
bypasses, and a collapsed lung. Tr. 62. Revolt experiences shortness of breath. Tr. 69. He
estimated being able to safely lift and carry five or six pounds for a few minutes at a time. Tr.
69. Revolt has a difficult time bending and stooping because it causes pains in his lower back
and cramps in his legs. Tr. 69. Revolt agreed with Dr. Remeneni’s opinion that he would
require unscheduled work breaks every 15 minutes for 5-10 minutes. Tr. 69. Revolt feels that he

6

The ALJ questioned Revolt about his hearing testimony, including his testimony that he had problems with reading
and writing, noting that Revolt had previously provided answers on forms completed during the application process
that were inconsistent with his hearing testimony. Tr. 58-59.
16

has some limitations on reaching with his arms on a repetitive basis, noting that when he reaches
he gets a muscle cramp in his back. Tr. 72.
As far as tasks around the house, Revolt can do the dishes, start the laundry, and sweep
the floor. Tr. 70. He can perform those tasks for 20 minutes at most before needing to take a
break. Tr. 70. Revolt noted that his ability to perform tasks depends on the day and how he
feels. Tr. 70. Therefore, he was unable to say he could perform a particular task on a consistent
basis. Tr. 70. Revolt has a driver’s license and is able to drive. Tr. 72. However, he does not
drive very far. Tr. 72. He drove himself to the hearing but had to stop twice during the 40minute drive. Tr. 72.
Revolt indicated that he has had anger issues and went to counseling a few times but did
not think that the counseling was helping. Tr. 62. He indicated he is moody and depressed
because of his medical problems. Tr. 73. Revolt misses working and wishes he was able to
work. Tr. 69, 73.
Since his open heart surgery, Revolt has experienced a dry cough. Tr. 70. He also has
blurry vision at times and he is fatigued all the time. Tr. 70-71. He also gets numbness in his
hands and legs which his doctors attribute to bad circulation/blood clots. Tr. 71. Because of the
numbness, at times Revolt has problems holding on to things. Tr. 71. When he experiences
numbness in his legs, he has to stand up or sit down to try to relieve the numbness. Tr. 71.
Revolt was asked about a report indicating he injured his arm when roofing materials fell
on his arm in June 2013. Tr. 63, 64-65. Revolt indicated that occurred while he was doing some
work in his grandmother’s basement. Tr. 63, 66. Revolt was not putting shingles on his
grandmother’s house. Tr. 63-65. There were some shingles on a table and some of them fell on

17

him. Tr. 63. Revolt recalled that the incident may have occurred when he was assisting his
grandmother after her basement flooded. Tr. 66.
2.

Vocational expert

The Vocational Expert Brian Walmer (“VE”) testified at the hearing. Tr. 74-77. The VE
described Revolt’s past work as a foam molder as a semi-skilled, medium exertional level job. 7
Tr. 75. The ALJ asked the VE whether Revolt would be able to return to his prior employment if
he was capable of lifting, carrying, pushing, and pulling 20 pounds occasionally and 10 pounds
frequently and able to sit, stand and walk for 6 hours each out of an 8-hour workday with
frequent climbing of ramps and stairs but only occasional climbing of ladders, ropes or scaffolds;
only occasional stooping; frequent crouching and frequent kneeling; occasional crawling; and no
concentrated exposure to extreme cold, extreme heat, wetness, dust, fumes or gases. Tr. 75. The
VE indicated that Revolt would be unable to perform his past work. Tr. 75. However, there
would be unskilled, light level work in the regional or national economy that Revolt could
perform, including small parts assembler, inspector and hand packager, and assembly machine
tender. Tr. 75-76. The VE provided regional and national job incidence data for the identified
jobs. Tr. 76. If Revolt was only able to work less than one hour for an entire day and then be off
task 25 percent of the time that he was at work, the VE indicated there would be no jobs
available. Tr. 76. If Revolt was limited to lifting five pounds occasionally and no weight
frequently, the VE indicated there would be no jobs available. Tr. 77.
III. 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

7

The VE noted that, if Revolt lifted more than 50 pounds, he performed the job at a heavy exertional level. Tr. 75.

18

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 economy8 . . . .
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If 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 least twelve months, and his impairment meets or equals a listed
impairment, 9 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

8

“’[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).
9

The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.

19

national economy.
20 C.F.R. §§ 404.1520, 416.920; 10 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (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 establish whether the claimant has the RFC and vocational factors
to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his August 8, 2016, decision the ALJ made the following findings: 11
1.

Revolt meets the insured status requirements of the Social Security Act
through December 31, 2013. Tr. 17.

2.

Revolt has not engaged in substantial gainful activity since September 1,
2012, the alleged onset date. Tr. 17.

3.

Revolt has the following severe impairments: coronary artery disease and
COPD. Tr. 17. Revolt’s neck pain, depression, and all other impairments
are non-severe. Tr. 17-19.

4.

Revolt does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments. Tr.
19.

5.

Revolt has the RFC to perform light work except lift/carry 20 pounds
occasionally and 10 pounds frequently; sit, stand and walk for 6 hours in
an 8 hour workday; frequent climbing of ramps or stairs; occasional
climbing of ladders, ropes or scaffolds; occasional stooping and crawling;
frequent kneeling and crouching; and must avoid concentrated exposure to
dust, fumes, gases, extreme cold, extreme heat and wetness. Tr. 19-22.

6.

Revolt is unable to perform any past relevant work. Tr. 22.

10

The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
11

The ALJ’s findings are summarized.

20

7.

Revolt was born in 1969 and was 43 years old, defined as a younger
individual age 18-49, on the alleged disability onset date. Tr. 222.

8.

Revolt has a limited education and is able to communicate in English. Tr.
22.

9.

Transferability of job skills is not material to the determination of
disability. Tr. 22-23.

10.

Considering Revolt’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that Revolt
can perform, including small parts assembler, inspector and hand packager,
and assembly machine tender. Tr. 23.

Based on the foregoing, the ALJ determined Revolt had not been under a disability, as
defined in the Social Security Act, from September 1, 2012, through the date of the decision. Tr.
23-24.
V. Plaintiff’s Arguments
First, Revolt argues that the ALJ failed to properly evaluate the opinion of his treating
physician Dr. Rameneni. Doc. 13, pp. 5-9, Doc. 16, pp. 2-3. Second, Revolt argues that the
Appeals Council did not consider one of two evaluation reports prepared by consultative
examining psychologist Dr. Wuebker, specifically Dr. Wuebker’s July 23, 2012, evaluation
report. Doc. 13, pp. 9-11, Doc. 13-1, Doc. 13-2. Third, Revolt argues that the ALJ failed to
properly evaluate evidence regarding his mental health when reaching the conclusion that his
depression was a non-severe impairment. Doc. 13, pp. 11-13.
VI. Law & Analysis
A.

Standard of review
A reviewing 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. 42 U.S.C. § 405(g); Wright v. Massanari, 321

21

F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
The Commissioner’s findings “as to any fact if supported by substantial evidence shall be
conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the Commissioner’s decision
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the
case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
B.

The ALJ did nor err in weighing Dr. Rameneni’s opinion
Revolt argues that the ALJ failed to properly evaluate the opinion of his treating

physician Dr. Rameneni. Doc. 13, pp. 5-9, Doc. 16, pp. 2-3.
Under the treating physician rule, “[t]reating source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the
other substantial evidence in [the] case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)); see also Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).

22

If an ALJ decides to give a treating source’s opinion less than controlling weight, he must
give “good reasons” for doing so that are sufficiently specific to make clear to any subsequent
reviewers the weight given to the treating physician’s opinion and the reasons for that weight.
Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. In deciding the weight to be given, the ALJ
must consider factors such as (1) the length of the treatment relationship and the frequency of the
examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the
opinion, (4) the consistency of the opinion with the record as a whole, (5) the specialization of
the source, and (6) any other factors that tend to support or contradict the opinion. Bowen v.
Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir. 2007); 20 C.F.R. § 404.1527(c). An ALJ is not
obliged to provide “an exhaustive factor-by-factor analysis” of the factors considered when
weighing medical opinions. See Francis v. Comm’r of Soc. Sec., 414 Fed. Appx. 802, 804 (6th
Cir. Mar. 16, 2011).
The ALJ discussed the opinion rendered by Dr. Remeneni and explained his
consideration of and weight assigned to the opinion, stating:
The undersigned gives little weight to the opinion of Dr. Remeneni, the claimant’s
treating family physician, who opined that the claimant is limited to an extreme,
less than sedentary range of work activity (Exhibit 2F). Dr. Rameneni’s opinion is
inconsistent with his own physical examination findings, which were generally
normal (Exhibit 10F, pages 18, 25, 32). Dr. Rameneni’s opinion is also inconsistent
with Dr. Abdelabaki’s treatment notes and physical examination findings, which
consistently demonstrate that the claimant is stable from a cardiovascular
standpoint (Exhibit 7F & 9F). Dr. Rameneni’s opinion is inconsistent with the
claimant’s medical non-compliance as the claimant continues to smoke and
disregard diet recommendations (Exhibit 10F, page 18). Lastly, Dr. Rameneni’s
opinion is inconsistent with the claimant’s activities of daily living, which include
light housecleaning, making small repairs, walking for exercise, and socializing
with family and friends (Exhibit 3F, page 5 & 10F, pages 32, 38).
Tr. 22.

23

Revolt challenges the ALJ’s weighing of Dr. Rameneni’s opinion and contends that the
reasons provided are not good reasons. Revolt cites to his history of CAD as a basis upon which
the ALJ should have found Dr. Rameneni’s opinion consistent with, rather than inconsistent
with, the record. Revolt also contends that Dr. Abdelbaki’s cardiac treatment notes support a
finding that Revolt’s CAD was very severe and Dr. Abdelbaki’s treatment notes are consistent
with those of Dr. Rameneni. He also contends that the ALJ improperly relied upon treatment
notes indicating that Revolt’s CAD was stable because the term “stable” is a relative term.
The Court finds Revolt’s challenge to the ALJ’s weighing of his treating physician’s
opinion without merit. Here, the ALJ fully considered the evidence of record, including Revolt’s
“substantial history of coronary artery disease with bypass and grafting[.]” Tr. 20-21. Taking
into account the evidence regarding Revolt’s cardiac condition, the ALJ concluded that Revolt’s
impairments were not as disabling as Revolt contended and that Dr. Rameneni’s opinions as to
extreme limitations were not consistent with the record. Tr. 20, 22. Rather, the ALJ concluded
that the record was consistent with the ability to perform light work activity. Tr. 20.
Furthermore, the ALJ found that Dr. Rameneni’s extreme limitations were inconsistent with
Revolt’s activities of daily living, which included light housecleaning, small repairs, and meal
preparation. Tr. 21, 22. Revolt argues that the ALJ’s reliance on his activities of daily living as
a reason to discount his treating physician’s opinion was misplaced because the ALJ did not
explain how the cited activities of daily living were inconsistent with Dr. Rameneni’s opinion
and did not take into account that Revolt performed the cited activities on his own time and at his
own pace. The ALJ did not find Revolt not disabled based solely on his activities of daily living.
Further, Revolt’s activities of daily living were not the only reason that the ALJ found Dr.
Rameneni’s extreme limitations not consistent with the record evidence. As indicated above, the

24

ALJ also found the extreme limitations inconsistent with Dr. Rameneni’s own generally normal
physical examination findings and inconsistent with Revolt’s medical non-compliance, including
his continued smoking against medical advice. Tr. 21, 22, Tr. 595 (Dr. Rameneni’s 6/11/2013
treatment notes reflecting no chest pain, dyspnea or leg swelling; normal rate, regular rhythm and
normal heart sounds and normal pulmonary/chest effort and no wheezes); Tr. 588 (Dr.
Rameneni’s 4/23/2014 treatment notes reflecting no recent chest pain, normal rate, regular
rhythm, and normal heart sounds, normal pulmonary/chest effort and no wheezes, no edema); Tr.
581 (Dr. Rameneni’s 1/29/2015, treatment notes reflecting normal rate, regular rhythm and
normal heart sounds, normal pulmonary/chest effort and no wheezes, no edema). Revolt has not
shown error with respect to these ALJ’s determinations.
While Revolt disagrees with the ALJ’s consideration and weighing of the evidence
regarding his cardiac condition and daily activities, it is not for this Court to “try the case de
novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner, 745 F.2d at
387. Furthermore, although Revolt contends that there is evidence to support his position, even
if substantial evidence or indeed a preponderance of the evidence supports a claimant’s position,
a reviewing court cannot overturn the Commissioner’s decision “so long as substantial evidence
also supports the conclusion reached by the ALJ.” Jones, 336 F.3d at 477. Revolt has not shown
that the ALJ’s reasons for assigning little weight to Dr. Rameneni’s extreme limitations are not
supported by substantial evidence. Nor has Revolt demonstrated that the ALJ’s reasons are not
adequately explained. Accordingly, the Court finds that reversal and remand is not warranted
based on the ALJ’s consideration of Dr. Rameneni’s opinion.

25

C.

Plaintiff is not entitled to reversal and remand based on the Appeals Council’s
review
Revolt argues that reversal and remand is warranted because the Appeals Council did not

consider one of two evaluation reports prepared by consultative examining psychologist Dr.
Wuebker, specifically Dr. Wuebker’s July 23, 2012, evaluation report. Doc. 13, pp. 9-11, Doc.
13-1, Doc. 13-2.
Revolt contends that Dr. Wuebker’s 2012 evaluation report was submitted to and
received by the Social Security Administration but not made part of the medical record before
the ALJ decision and not considered by the Appeals Council. Doc. 13, p. 10. There is no
indication that Revolt brought this issue to the attention of the Appeals Council when seeking
review of the ALJ’s decision. Additionally, while not labeled as a request for a sentence six
remand, to the extent that Revolt is seeking a sentence six remand, Revolt has not shown that the
evidence is new or material to his current claim. The 2012 evaluation report pre-dates the
alleged disability onset date. The Sixth Circuit has repeatedly held that where, as here, the
Appeals Council denies review and the ALJ’s decision becomes the Commissioner’s decision,
the court’s review is limited to the evidence presented to the ALJ. See Foster v. Halter, 279 F.3d
348, 357 (6th Cir. 2001); Cline v. Commissioner, 96 F.3d 146,148 (6th Cir. 1996); Cotton v.
Sullivan, 2 F.3d 692, 696 (6th Cir. 1993); Casey v. Secretary of Health & Human Servs., 987
F.2d 1230, 1233 (6th Cir. 1993); see also Osburn v. Apfel, No. 98-1784, 1999 WL 503528, at *4
(6th Cir. July 9, 1999) (“Since we may only review the evidence that was available to the ALJ to
determine whether substantial evidence supported [his] decision, we cannot consider evidence
newly submitted on appeal after a hearing before the ALJ.”). The statute permits only two types
of remand: a sentence four remand made in connection with a judgment affirming, modifying, or
26

reversing the commissioner’s decision; and a sentence six remand where the court makes no
substantive ruling as to the correctness of the Commissioner’s decision. See, e.g., Hollon v.
Commissioner, 447 F.3d 477, 486 (6th Cir. 2006). The court cannot consider evidence that was
not submitted to the ALJ in the sentence four context; it can consider such evidence only in
determining whether a sentence six remand is appropriate. See Bass v. McMahon, 499 F.3d 506,
513 (6th Cir. 2007); Foster, 279 F.3d at 357.
The plaintiff has the burden under sentence six of 42 U.S.C. §405(g) to demonstrate that
the evidence he now presents in support of a remand is “new” and “material,” and that there was
“good cause” for her failure to present this evidence in the prior proceedings. See Hollon, 447
F.3d at 483; see also Ferguson v. Commissioner, 628 F.3d 269, 276 (6th Cir. 2010) (although the
material that the claimant sought to introduce was “new,” the claimant failed to meet her burden
of showing “good cause” for failure to submit materials and that the evidence was “material.”).
Evidence is “new only if it was not in existence or available to the claimant at the time of the
administrative proceeding.” Ferguson, 628 F.3d at 276 (internal quotations and citations omitted
and emphasis supplied). “[E]vidence is material only if there is a reasonable probability that the
Secretary would have reached a different disposition of the disability claim if presented with the
new evidence.” Id. (internal quotations and citations omitted and emphasis supplied). “A
claimant shows good cause by demonstrating a reasonable justification for the failure to acquire
and present the evidence for inclusion in the hearing before the ALJ.” Id. (internal quotations
and citations omitted and emphasis supplied). Revolt has not met his burden of demonstrating a
basis for remanding this case pursuant to sentence six.
Furthermore, as Revolt acknowledges (Doc. 13, p. 11), the record demonstrates that both
Dr. Wuebker and the state agency reviewing psychologists were aware of the existence of the

27

prior report when rendering their opinions relative to Revolt’s current claim (Tr. 81-82, 85-86,
108, 111, 252). The ALJ considered and weighed the state agency reviewing psychologists’
opinions as well as Dr. Wuebker’s 2014 opinion, both of which took into account the earlier
2012 evaluation conducted by Dr. Wuebker. Thus, any claim that the 2012 evaluation was not
part of the record when the ALJ or the Appeals Council rendered their decisions is unsupported
by the record.
Based on the foregoing, the Court finds no reason to reverse and remand the
Commissioner’s decision for consideration of Dr. Wuebker’s 2012 evaluation by either the ALJ
or the Appeals Council.
D.

Reversal and remand is not warranted based on the ALJ’s review of the mental
health evidence of record
Revolt argues that the ALJ failed to properly evaluate evidence regarding his mental

health when reaching the conclusion that his depression was a non-severe impairment. Doc. 13,
pp. 11-13. In making his argument, Revolt acknowledges that the ALJ relied upon the opinions
of the reviewing psychologists and on the 2014 opinion of Dr. Wuebker but contends that the
ALJ failed to consider Dr. Wuebker’s 2012 evaluation. Revolt contends that the 2012 evaluation
supports a finding of a severe mental health impairment. Revolt’s challenge amounts to a
request for a sentence six remand. However, as discussed above, Revolt has not demonstrated a
basis upon which a sentence six remand is warranted. Dr. Wuebker’s July 23, 2012, evaluation
pre-dated Revolt’s alleged onset date, i.e., September 1, 2012. Tr. 15. Thus, Revolt cannot
demonstrate that the evidence is new or that it is material.
Moreover, as acknowledged by Revolt, the state agency reviewing psychologists
considered the prior report when rendering their opinions and the ALJ considered and assigned
great weigh to their opinions, stating:
28

The state agency psychological consultants opined that the claimant’s mental
impairment is non-severe, which is well supported by the mental status findings,
the opinion of the independent consultative examiner, the claimant’s lack of mental
health treatment and the claimant’s activities of daily living (Exhibits 3F & 10F).
Tr. 22.
Further, when Dr. Wuebker evaluated Revolt in July 2014, he was fully aware of his prior
2012 evaluation (Tr. 252) and the ALJ considered and weighed Dr. Wuebker’s 2014 evaluation,
which pertained to the period of disability under review (Tr. 22). The ALJ provided great weight
to Dr. Wuebker’s 2014 evaluation. Tr. 22. Revolt has not shown that the ALJ’s finding that his
depression was a non-severe impairment is not supported by Dr. Wuebker’s opinion or the
opinions of the state agency reviewing psychologists.
Based on the foregoing, the Court concludes that a sentence six remand is not warranted
for consideration of Dr. Wuebker’s 2012 evaluation which pre-dates the period of disability at
issue nor is a sentence four remand warranted for further consideration of the mental health
evidence of record pertaining to the alleged period of disability at issue.
VII. Conclusion
For the reasons set forth herein, the Court AFFIRMS the Commissioner’s decision.

Dated: October 16, 2018

/s/ Kathleen B. Burke
Kathleen B. Burke
United States Magistrate Judge

29