Gibson v. Commissioner of Social Security et al

Filing 20

Memorandum Opinion and Order that the Court affirms the decision of the Commissioner denying Gibson's application on behalf of D.M. for supplemental security income (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 3/23/2012. (S,G)

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

Le’RAY S. GIBSON, o/b/o D.M.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 5:10 CV 2555

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION
& ORDER

Introduction
Before me1 is a pro se action under 42 U.S.C. § 405(g) by Le’Ray Gibson,2 on behalf
of D.M.,3 a minor child, seeking judicial review of a decision of the Commissioner of Social
Security denying Gibson’s application on behalf of D.M. for supplemental security income
(SSI).4 After the Commissioner filed an answer5 and the administrative record,6 the parties
briefed their positions.7 In addition, as will be discussed below, Gibson also submitted

1

The parties have consented to my exercise of jurisdiction. ECF # 19.

2

Le’Ray Gibson is D.M.’s mother. Transcript (“Tr.”) at 21.

3

Under Local Rule 8.1(s)(2), minors are to be identified only by their initials.

4

ECF # 1.

5

ECF # 11.

6

ECF # 12.

7

ECF # 7 (Gibson’s fact sheet); ECF # 17 (Commissioner’s merit brief with chart);
ECF # 18 (Gibson’s merit brief).

additional evidence in support of the action for judicial review.8 For the reasons that follow,
I conclude that no basis exists for a sentence six remand to consider new evidence and further
conclude that the Commissioner’s decision has the support of substantial evidence and must
be affirmed.

Facts
A.

The findings and decision of the Administrative Law Judge (“ALJ”)
The ALJ, whose decision became the final decision of the Commissioner, found that

D.M., who was 16 years old at the time of the hearing,9 had the following severe
impairments: personality disorder (oppositional defiant disorder) and learning disorder.10
The ALJ, on the evidence and the testimony of a medical expert (“ME”), further decided that
the oppositional defiant disorder met Listing § 112.08 from February, 2007, through January,
2009, because D.M. had an extreme limitation in interacting with others and a marked
limitation in his acquiring and using information.11 Thus, the ALJ determined that D.M. was
under a disability beginning in February, 2007 – the date of the application for SSI.12

8

ECF # 13.

9

Tr. at 21.

10

Id. at 15.

11

Id. at 16.

12

Id.
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The ALJ then concluded that as of January 30, 2009, D.M. had medically improved
to where he was no longer under a disability.13 To that end, the ALJ first specifically cited
to evidence from D.M.’s treating physician, Robert Hull, M.D.14 Dr. Hull’s treatment notes
from January 29, 2009, showed that D.M. reported that his medication helped him focus
better and that he had done well on standardized testing at school.15 In addition to this
evidence from D.M.’s treating physician, the ALJ also noted that “[b]oth claimant and his
mother acknowledged that the claimant’s condition has improved significantly.”16
Specifically, the ALJ pointed to D.M.’s testimony and that of Gibson that D.M.’s condition,
behavior, and grades had improved and that he only saw the doctor for “short-lived”
conditions like tonsilitis, pharyngitis, and conjunctivitis – all unrelated to his behavioral
disorder or learning impairment.17
Finally, the ALJ observed that the ME, upon his review of the same evidence cited
above, opined that as of January 30, 2009, D.M.’s impairments no longer functionally

13

Id.

14

Id.

15

Id. (citing Tr. at 2009).

16

Id.

17

Id. at 16-17 (citing transcript).
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equaled the listings.18 The ALJ gave the ME’s opinion greater weight as supported by the
evidence of record.19
B.

Gibson’s arguments for reversal
In her merit brief, Gibson raises several arguments concerning the ALJ’s decision.

First, she argues that Dr. Hull never did any medical tests on D.M.20 Next, she contends that
D.M.’s condition has deteriorated after the ALJ’s decision in 2009.21 Finally, she asserts that
D.M.’s doctors and school officials never received appropriate permissions from Gibson to
deal with D.M.22 In the end, Gibson maintains that D.M. “needs supplemental secutiy (sic)
S.S.I. income” for “food[,]shelter [and] clothing.”23

Analysis
A.

Standard of review
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:

18

Id. at 17 (citing transcript).

19

Id.

20

ECF # 18 at 1.

21

Id. at 1-2.

22

Id. at 2.

23

Id. at 3.
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Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.24
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.25 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.26
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

The decision of the ALJ has the support of substantial evidence.
Based on the standard of review set out above, the decision of the ALJ to find D.M.

no longer disabled after January 30, 2009, has the support of substantial evidence. As was

24

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

25

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
26

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
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indicated in the above discussion of that evidence, D.M.’s treating physician, D.M., his
mother, and the ME all agreed that he had improved by that date and that he then received
additional medical treatment for only transitory conditions unrelated to his underlying
impairments. Further, and just as important, the record before the ALJ contains nothing to
the contrary.
C.

The new evidence offered by Gibson is rejected.
As noted, Gibson attempts to base part of her arguments on additional evidence

developed after D.M.’s disability was deemed ended in 2009. But, judicial review of the
Commissioner’s decision is “confined to ... the record made in the administrative hearing
process.”27 Evidence from after the decision can only be considered under a “sentence six”
remand.28
Sentence six of 42 U.S.C. § 405(g) permits a court to order a case remanded for
consideration of additional evidence under certain circumstances. The Sixth Circuit has
interpreted this statute as creating three requirements for a remand to consider new evidence:
(1) that the evidence be “new;” that is, not cumulative of evidence already in the record;
(2) that the evidence be “material;” which requires a showing that the Commissioner would

27

Love v. Comm’r of Soc. Sec., 605 F. Supp. 2d 893, 900 (W.D. Mich. 2009) (citation
omitted).
28

Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).
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have reached a different disposition of the claim if presented with the evidence; and (3) that
“good cause” exists for not producing the evidence in a prior proceeding.29
Here, although, as the Commissioner states, Gibson has not directly requested a
sentence six remand,30 she is a pro se plaintiff and so unlikely to know the precise forms of
pleading applicable to her arguments. But, even liberally construing her arguments regarding
the new evidence as ones for a sentence six remand, they are not sufficient to establish the
grounds for such action.
In Gibson’s case, 2008 documentation regarding alleged discrimination and
harassment against D.M. while attending school, and a 2008 summary of unresolved school
disputes,31 all predate the 2009 finding by the ALJ. Without any good reason given why this
evidence was not presented to the ALJ in 2009, it does not provide a basis for a remand.
As to the materiality requirement, the new evidence does not establish that the
Commissioner would have reached a different conclusion as to the end of D.M.’s disability
if presented with this evidence. Neither D.M.’s 2010 Individual Education Program (IEP),
his first semester 2011 grades,32 his first semester 2011 attendance record,33 nor his
29

Shull v. Astrue, No. 09-CV-2931, 2011 WL 1357363, at *3 (N.D. Ohio April 11,
2011) (citations omitted).
30

ECF # 17 at 7.

31

ECF # 13.

32

His grades are: 2 A’s (both in marketing), 3 B’s (drawing, earth system, and
physical education), a C (English language arts), and a D (economics).
33

Of only three days out for illness, the records show one day out with “stomach flu”
and two days out after a call from his mother.
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2010-2011 prescription records,34 without more, provide grounds for the Commissioner to
reach a different conclusion. Similarly, simple statements that D.M. is now being treated by
“Summit Psychology” and Dr. Machado Grenville,35 without treatment notes or reports,
provide no evidence on which the Commissioner could decide differently as to the end date
of D.M.’s disability.
Thus, for the reasons stated, the additional evidence submitted by Gibson is not
considered here and provides no basis for a sentence six remand.

Conclusion
For the reasons stated, no basis exists for a remand to consider additional evidence
under sentence six. Further, the decision of the Commissioner has the support of substantial
evidence and is, therefore, affirmed.
IT IS SO ORDERED.

Dated: March 23, 2012

34

ECF # 16.

35

s/ William H. Baughman, Jr.
United States Magistrate Judge

Id.
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