Ringer v. Commissioner of Social Security
Memorandum of Opinion and Order Finding no basis for remand, the Court overrules Plaintiff's objection (ECF No. 19 ), adopts the Magistrate Judge's Report and Recommendation (ECF No. 18 ), affirms the Commissioner's decision, and dismisses Plaintiff's case in its entirety, with prejudice. Judge Benita Y. Pearson on 6/30/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JERRILYNN R. RINGER,
COMMISSIONER OF SOCIAL
CASE NO. 5:16CV764
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 19]
An Administrative Law Judge (“ALJ”) denied Plaintiff Jerrilynn R. Ringer's claim for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits after a
hearing. That decision became the final determination of the Commissioner of Social Security
when the Appeals Council denied Plaintiff’s request to review the ALJ’s decision. Plaintiff
sought judicial review of the Commissioner’s decision, and the Court referred the case to
Magistrate Judge George J. Limbert for preparation of a Report and Recommendation pursuant
to 28 U.S.C. § 636 and Local Rule 72.2(b)(1). After both parties filed briefs, the magistrate
judge submitted a Report (ECF No. 18) recommending that the decision of the Commissioner be
affirmed as supported by substantial evidence. Plaintiff objected to the Report and
Recommendation. ECF No. 19. Defendant filed a Response. ECF No. 20. For the reasons that
follow, the Court overrules Plaintiff’s objections, adopts the magistrate judge’s Report, affirms
the Commissioner’s decision and dismisses Plaintiff’s case in its entirety, with prejudice.
I. Standard of Review
When a magistrate judge submits a Report and Recommendation, a court is required to
conduct a de novo review of the portions of the Report to which an appropriate objection has
been made. 28 U.S.C. § 636(b). Objections to the Report must be specific, not general, in order
to focus the court’s attention upon contentious issues. Howard v. Sec’y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). The primary issue then becomes whether substantial
evidence supports the Commissioner’s decision. The Court’s review of the Commissioner’s
decision is limited to determining whether substantial evidence, viewing the record as a whole,
supports the findings of the ALJ. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978);
Bartyzel v. Comm’r of Soc. Sec., 74 F. App’x 515, 522–23 (6th Cir. 2003). Substantial evidence
is more than a mere scintilla of evidence, but less than a preponderance. Richardson v. Perales,
402 U.S. 389, 401 (1971). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028, 1030 (6th
Cir. 1992) (per curiam).
If substantial evidence supports the Commissioner’s decision, a reviewing court must
affirm the decision even if it would decide the matter differently. Cutlip v. Sec’y of Health &
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kinsella v. Schweiker, 708 F.2d 1058,
1059 (6th Cir. 1983) (per curiam)). Moreover, the decision must be affirmed even if substantial
evidence would also support the opposite conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986) (en banc). This “standard allows considerable latitude to administrative decision
makers. It presupposes that there is a zone of choice within which the decisionmakers [sic] can
go either way, without interference by the courts. An administrative decision is not subject to
reversal merely because substantial evidence would have supported an opposite decision.” Id.
(quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). In determining, however,
whether substantial evidence supports the ALJ’s findings in the instant matter, the Court must
examine the record as a whole and take into account what fairly detracts from its weight. Wyatt
v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The Court must also
consider whether the Commissioner employed the proper legal standards. Queen City Home
Health Care Co. v. Sullivan, 978 F.2d 236, 243 (6th Cir. 1992).
To establish disability under the Social Security Act, a claimant must show that she is
unable to engage in substantial activity due to the existence of “a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months.” See 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). The claimant’s impairment must prevent her from doing her
previous work, as well as any other work existing in significant numbers in the national
economy. 42 U.S.C. § 423(d)(2)(A). Under 42 U.S.C. § 1381, disabled individuals who meet
certain income and resources requirements are entitled to SSI benefits. See also 20 C.F.R. §§
Plaintiff objects to the magistrate judge’s finding that remand pursuant to Sentence Six of
42 U.S.C. § 405(g) is not warranted. Plaintiff’s application for DIB and SSI claim was denied
initially and upon reconsideration. ECF No. 18 at PageID #: 1099. On March 19, 2015, after a
hearing, the ALJ issued a decision denying Plaintiff’s claims. Id. The decision became final
when the Appeals Council denied Plaintiff’s request for review. Plaintiff was without medical
insurance throughout the pendency of her administrative claim, but later obtained Medicare
coverage. After obtaining a referral from her primary care physician, Plaintiff visited Dr. Paul T.
Scheatzle, D.O., who conducted a Functional Capacity Evaluation (“FCE”) and drafted a report
of his findings on August 19, 2015. ECF No. 19-1. Plaintiff filed suit in this Court on March 28,
2016, seeking review of the ALJ’s decision. She argues that the case should be remanded so that
the ALJ can consider Dr. Scheatzle’s FCE findings. ECF No. 19.
“It is well established that the party seeking remand bears the burden of showing that a
remand is proper under Section 405.” Oliver v. Sec’y of Health & Human Serv., 804 F.2d 964,
966 (6th Cir. 1986). A remand under Sentence Six requires the plaintiff to show that the
evidence is both new and material, and that she had good cause for failing to introduce the
evidence to the ALJ. 42 U.S.C. § 405(g); Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276
(6th Cir. 2010). Courts “are not free to dispense with these statutory requirements.” Hollon ex
rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 486 (6th Cir. 2006) (citing Melkonyan v.
Sullivan, 501 U.S. 89 (1991)).
A. New Evidence
Plaintiff first objects to the magistrate judge’s finding that Dr. Scheatzle’s FCE does not
constitute new evidence. Plaintiff argues that it would have been unreasonable for Dr. Gamaliel
Batalla, who last saw her on November 16, 2011, to prepare an opinion regarding Plaintiff’s
physical restrictions three years later. ECF No. 19 at PageID #: 1128. Plaintiff also alleges that
Dr. Benjamin Swisher refused to issue an opinion report. Id. at PageID #: 1129.
Evidence is “new” only if it did not exist or was unavailable to Plaintiff at the time of the
administrative proceeding. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Plaintiff has not
demonstrated that her evidence was new. Although Dr. Scheatzle’s opinion did not exist at the
time of the administrative proceeding, as it was not prepared until five months after the ALJ
issued his decision, such an opinion was not “unavailable” to Plaintiff. That Dr. Batalla or Dr.
Swisher were unwilling to perform the evaluation is not the issue—Plaintiff’s contact with these
doctors demonstrates that she had the ability to seek out medical professionals whom could
perform the evaluation.1 Furthermore, Plaintiff was represented by counsel throughout the
administrative proceeding, and was aware of her burden to submit evidence of her disability. See
20 C.F.R. §§ 404.1512(a), 416.912(a).
Although Dr. Batalla had not seen her in three years, Plaintiff could have
revisited him for an up-to-date evaluation. Plaintiff also contends that Dr. Swisher
refused to conduct the evaluation, but she does not explain why he declined, other than to
cite her counsel’s supplemental declaration. ECF No. 19-2 at PageID #: 1136. The
declaration does not mention Dr. Swisher, her purported efforts to contact him, or his
alleged refusal to conduct the examination.
Plaintiff also argues that the evidence is new because she could not previously afford to
go to the doctor, citing McKnight v. Sullivan, 927 F.2d 941, 942 (6th Cir. 1990) in support of her
argument that courts must consider a claimant’s ability to pay. McKnight’s holding is more
limited than Plaintiff suggests. McKnight initiated a benefits claim, arguing that his glaucoma,
chronic hemorrhoids, hypertension, and arthritis prevented him from working. Id. at 242. The
McKnight ALJ determined that the plaintiff was not disabled because his conditions could be
fixed by surgery. Id. The Sixth Circuit determined that this finding ignored the plaintiff’s ability
to afford the necessary surgery, and that because he had no means to pay for treatment, “the
condition that is disabling in fact continues to be disabling in law.” Id. at 243 (citing Lovelace v.
Bowen, 813 F.2d 55, 59 (5th Cir. 1987)). McKnight is limited to a claimant’s ability to pay in the
context of establishing severe impairment, and did not address whether a claimant’s ability to pay
justified remand under Sentence Six. Accordingly, it is inapplicable in this case.
Finally, although Plaintiff does not have much money, she did have sufficient funds to
seek out medical treatment and legal counsel. Permitting additional evidence in this case would
allow claimants to “have it both ways,” pursuing medical treatment without regard to their
burden of production during the administrative claim, but also having the opportunity to correct
the record as their leisure after having lost. That Plaintiff did not prioritize seeking out an
evaluation that might have aided her case during the administrative claim does not justify
reopening the claim now.
For these reasons, the Court finds that Plaintiff’s evidence was not “new” within the
meaning of the statute.
B. Materiality of the Evidence
Even if Plaintiff’s evidence were new, remand would still be inappropriate, as the
evidence is not material. To demonstrate materiality, a plaintiff must show that “there was a
reasonable probability that the Secretary would have reached a different disposition of the
disability claim if presented with the new evidence.” Sizemore v. Sec’y of Health & Human
Servs., 865 F.2d 709, 711 (6th Cir. 1988).
Dr. Scheatzle’s report is immaterial for several reasons. First, because Dr. Scheatzle
conducted his evaluation five months after the ALJ’s decision, his report does not speak to
Plaintiff’s disability during the July 11, 2014 to March 19, 2015 period before the ALJ. Second,
Dr. Scheatzle’s report is largely cumulative of Plaintiff’s prior medical evidence, making it
unlikely that the Secretary would have reached a different result even if presented with Dr.
Scheatzle’s report. Dr. Scheatzle opined that Plaintiff was limited to lifting 10 pounds
occasionally and 0 pounds frequently; walking occasionally up to 150 feet with a walker;
standing occasionally and sitting frequently with change of positions every 30 minutes; no
climbing, crawling, or combined bending and twisting; and no use of her left leg or foot. ECF
No. 19-1. Dr. Scheatzle also concluded that Plaintiff was “permanently, totally disabled.” Id. at
PageID #: 1133. Dr. Scheatzle’s conclusions regarding Plaintiff’s limitations are similar to those
of Dr. Batalla, who initially diagnosed Plaintiff with Complex Regional Pain Syndrome, ECF
No. 11 at PageID #: 582, or Dr. Randy Plona, who opined that Plaintiff could perform sedentary
work with the use of a four-prong walker for periods of ambulation and standing, id. at PageID #:
Finally, the ALJ’s residual functional capacity finding adopted many of the same
limitations recommended by Dr. Scheatzle, and it is unlikely that the ALJ would have reached a
different disposition even with the report. For instance, like Dr. Scheatzle, the ALJ limited
Plaintiff to sedentary work, use of an assistive device for periods of standing and walking, no
operation of foot controls with her left foot, and no climbing of ladders, ropes, or scaffolds. The
addition of Dr. Scheatzle’s opinion would have added little to the ALJ’s finding. Id. at PageID #:
77. Furthermore, although Dr. Scheatzle opined that Plaintiff was “permanently, totally
disabled,” a finding of disability is an issue reserved for the Commissioner. 20 C.F.R. §§
404.1512(a), 416.912(a); see also Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).
Plaintiff argues that, if read in conjunction with the vocational expert’s (“VE’s”)
testimony, Dr. Scheatzle’s report would change the outcome of her claim. ECF No. 19 at PageID
#: 1129. Plaintiff contends that Dr. Scheatzle’s finding that Plaintiff could not use her left leg,
combined with the VE’s testimony that a hypothetical person who had to sit with her left leg
elevated more than 18 inches would not be able to find competitive work, ECF No. 11 at PageID
#: 135, would change the ALJ’s finding. Plaintiff’s conclusion is not as obvious as she suggests.
It is not clear that “no use of the left leg or foot” necessitates the finding that it must be elevated
at all times. In fact, Dr. Scheatzle noted that Plaintiff could “sit frequently with change of
positions every thirty minutes,” and did not note that Plaintiff’s foot needed to be elevated.
Therefore, even when read in conjunction with the VE’s testimony, Dr. Scheatzle’s report does
not create a reasonable probability that the ALJ would have reached a different conclusion.
For these reasons, the Court finds that Dr. Scheatzle’s report is not material.
C. Good Cause
Finally, even if Plaintiff’s evidence were new and material, Plaintiff has not demonstrated
good cause to permit the submission of Dr. Scheatzle’s report at this time. Good cause is
satisfied when a plaintiff demonstrates a reasonable justification for failing to present the
evidence to the ALJ. Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 725 (6th Cir. 2012).
As evidence of good cause, Plaintiff again argues that she did not have the funds to obtain
Dr. Scheatzle’s report. Plaintiff cites Malec v. Comm’r of Soc. Sec., No. 13CV626, 2014 WL
66493 (N.D. Ohio 2014), in which the magistrate judge remanded the case for the submission of
additional evidence of plaintiff’s back surgery because there was no evidence that her surgery
could have been performed at an earlier date. The Malec court, however, specifically
distinguished Malec’s back surgery from a regular doctor’s evaluation, like the one Plaintiff
seeks to enter into evidence, stating, “[a]s opposed to an evaluation that can be done at the
request of a patient, Malec’s back surgery is a medical procedure that must be justified and
ordered by a doctor. Scheduling of a such a procedure is also generally outside the control of the
patient, as it was here in Malec’s case.” Malec, 2014 WL 66493, at *9.
A closer parallel to the instant case is Walton v. Astrue, 773 F. Supp. 2d 742, 753 (N.D.
Ohio 2011), in which the court rejected the claimant’s argument that “prior to the hearing, there
had been significant periods of time when [he] did not have the finances or health coverage to
obtain medical care.” Walton, 773 F. Supp. 2d at 754. The Walton court reasoned that the
claimant’s “limited finances and lack of health insurance does not excuse his failure to timely
either acquire or present the evidence to the ALJ. [The claimant] was represented by counsel
during the administrative hearing before the ALJ and, overall, the record does not reflect the
factors that would distinguish him from the majority of near destitute claimants who timely
submit medical evidence.” Id. (citing Grant v. Astrue, No. 2:07-CV-344, 2008 WL 4059*777, at
*5 (S.D. Ohio Aug. 26, 2008)).
Plaintiff offers no reason why her case is distinguishable from Walton, or “the majority of
near destitute claimants who timely submit medical evidence.” For these reasons, the Court finds
that Plaintiff has not demonstrated good cause.
Finding no basis for remand, the Court overrules Plaintiff’s objection, adopts the
magistrate judge’s Report, affirms the Commissioner’s decision, and dismisses Plaintiff’s case in
its entirety, with prejudice.
IT IS SO ORDERED.
June 30, 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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