Gray v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Stephanie Gray. IT IS RECOMMENDED THAT Defendant's decision be AFFIRMED as supported by substantial evidence, and that this case be CLOSED. Objections to R&R due by 12/11/2018. Signed by Magistrate Judge Stephanie K. Bowman on 11/27/2018. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STEPHANIE GRAY,

Case No. 1:17-cv-666
Dlott, J.
Bowman, M.J.

Plaintiff,
v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Stephanie Gray filed this Social Security appeal in order to challenge the
Defendant’s denial of her disability claim. See 42 U.S.C. §405(g). Proceeding pro se,
Plaintiff presents a single claim of error. For the reasons explained below, I conclude that
the ALJ’s finding of non-disability is supported by substantial evidence and should be
AFFIRMED.
I. Summary of Administrative Record
In December 2013, Plaintiff applied for disability insurance benefits (“DIB”) and for
supplemental security income (“SSI”), alleging disability as of October 18, 2010 primarily
based upon a mental disorder, although Plaintiff also relied on alleged physical
impairments related to hepatitis B and sickle cell disorder. After her applications were
denied initially and upon reconsideration, Plaintiff timely requested an evidentiary hearing
before an administrative law judge (“ALJ”). On April 26, 2016, ALJ Giuffre held a hearing
at which Plaintiff appeared pro se, after waiving her right to appear with a representative.
(Tr. 13, 242; see also generally Tr. 87-117). At the hearing, the ALJ notified Plaintiff that
her records from Talbert House were not up to date, and Plaintiff executed releases so
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that the ALJ could obtain the most recent records. (Tr. 29, 93). At the time of the hearing,
both Plaintiff and a vocational expert testified.

On June 21, 2016, noting that she had

held the administrative record open for a number of weeks but still had not received
additional records, the ALJ issued an adverse written decision, denying Plaintiff’s claim
of disability.
Within a day or two of that adverse decision, Plaintiff obtained an additional 58
pages of Talbert House records. (Tr. 6, 31). On August 16, 2016, Plaintiff, through her
case manager, timely requested additional review from the Appeals Council, relying in
part on a reference to the recently obtained records. (Tr. 243). On September 6, 2016,
the Appeals Council granted Plaintiff’s request for more time to submit new information
and directed her to send the additional information “within 25 days of the date of this
letter,” or by October 1, 2016. Within the requested time, Plaintiff submitted the additional
58 pages of Talbert House records to the Appeals Council.
By letter dated July 20, 2017, the Appeals Counsel acknowledged receipt of the
additional pages and explained that it would consider the post-hearing evidence only if
Plaintiff could show it was “new, material, and relates to the period on or before the date
of the hearing decision.” (Tr. 6). The Appeals Council indicated that Plaintiff could send
a statement in order to show “there is a reasonable probability that the additional evidence
would change the outcome of the decision,” and “good cause for why you missed
informing us about or submitting [the new evidence] earlier.” (Id.) The Appeals Council
informed Plaintiff that she “must” send any statement or new information within 30 days
of the date of the July 20, 2017 letter, and that they would “not allow more time to send
information except for very good reasons.” (Id.) There is no indication that Plaintiff sent

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any further explanation to show “good cause” for her failure to earlier submit the
referenced records, or that the records were new and material.
On September 6, 2017, after considering Plaintiff’s request for additional review
including review of the recently obtained Talbert House records, the Appeals Council
denied further review. The Appeals Council found “no reason under our rules to review”
the ALJ’s decision, specifically determining that the additional records were not “new” or
“material” under relevant regulations. (Tr. 1-2). The Appeals Council specifically found
that Plaintiff’s submission of an additional 58 pages of treatment notes from Talbert House
did “not show a reasonable probability that it would change the outcome of the decision,”
and therefore declined to further consider that evidence. (Tr. 2).
The Appeals Council’s denial of further review effectively rendered the ALJ’s
decision as the final decision of the Commissioner. Thereafter, Plaintiff timely filed a
judicial appeal of that decision in this Court.
Plaintiff was 42 years old on the date of the onset of her alleged disability, and was
47 years old, still a “younger individual” for purposes of social security, on the date that
the ALJ issued the adverse decision. She reported several years of college and has an
associate’s degree as a medical assistant, although she never used her degree. (Tr. 94).
Instead, she previously performed semi-skilled work as a remote agent/call center clerk,
as well as skilled work as an officer manager, as a retail manager, and as a copier
repairer. She also performed unskilled work as a cashier. (Tr. 22). All of her prior work
was performed at the light or sedentary level.
The ALJ determined that Plaintiff suffers from a severe impairment of an affective
disorder, as well as non-severe impairments of hepatitis B and chronic anemia with some
fatigue, but no shortness of breath or dizziness. (Tr. 16). However, the ALJ determined
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that Plaintiff did not meet or equal any listing in 20 C.F.R. Part 404, Subpart P, Appendix
1, such that Plaintiff was entitled to a presumption of disability. Instead, the ALJ found
that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of
work at all exertional levels, with only the following nonexertional restrictions:
[S]he has the ability to complete simple to detailed tasks in a setting that
does not have a need for close sustained focus/concentration or sustained
fast pace. She has the capacity for superficial contact with co-workers and
the public. She has the capacity to work in a routine environment with
infrequent changes.
(Tr. 18).
Based on the testimony of a vocational expert, the ALJ determined that Plaintiff
remains capable of performing three of her prior positions: specifically, as a remote
agent/call center clerk, cashier, and copier repairer. (Tr. 21).

Therefore, the ALJ

concluded that Plaintiff was not under a disability. (Tr. 22).
Plaintiff argues that the ALJ erred when she indicated that she would obtain the
most recent treatment notes at the April 26, 2016 hearing, but then rendered the
unfavorable decision prior to receipt and review of those records. Plaintiff posits that if
the ALJ had reviewed her most recent treatment notes, she would have received benefits.
(Doc. 8). In part because this Court’s review of an ALJ’s decision is limited to the record
presented before the ALJ, and in part because this Court agrees with the Appeals Council
that the tendered evidence is neither new nor material, I find no error and no basis for
reversal or remand.
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C.
§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or
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mental impairments that are both “medically determinable” and severe enough to prevent
the applicant from (1) performing his or her past job and (2) engaging in “substantial
gainful activity” that is available in the regional or national economies. See Bowen v. City
of New York, 476 U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the court’s
first inquiry is to determine whether the ALJ’s non-disability finding is supported by
substantial evidence.

42 U.S.C. § 405(g).

Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation
omitted). In conducting this review, the court should consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports
the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial
evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35
F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion....
The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from
the courts. If the Secretary’s decision is supported by substantial evidence,
a reviewing court must affirm.
Id. (citations omitted).
Whether considering an application for supplemental security income or for
disability benefits, the Social Security Agency is guided by the following sequential
benefits analysis: at Step 1, the Commissioner asks if the claimant is still performing
substantial gainful activity; at Step 2, the Commissioner determines if one or more of the
claimant’s impairments are “severe;” at Step 3, the Commissioner analyzes whether the
claimant’s impairments, singly or in combination, meet or equal a Listing in the Listing of
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Impairments; at Step 4, the Commissioner determines whether or not the claimant can
still perform his or her past relevant work; and finally, at Step 5, if it is established that
claimant can no longer perform his or her past relevant work, the burden of proof shifts to
the agency to determine whether a significant number of other jobs which the claimant
can perform exist in the national economy. See Combs v. Com’r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that she is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must
present sufficient evidence to show that, during the relevant time period, she suffered an
impairment, or combination of impairments, expected to last at least twelve months, that
left her unable to perform any job. 42 U.S.C. § 423(d)(1)(A).
B. Plaintiff’s Claim
Plaintiff’s claim, construed liberally, is that substantial evidence does not support
the ALJ’s adverse disability decision. Plaintiff believes that if the ALJ had considered the
most recent 58 pages of records, encompassing her treatment between October 28, 2015
and June 17, 2016, the ALJ would have found her to be disabled. She urges this Court
to consider those records in favor of reversal of the ALJ’s decision.
1. New Evidence Cannot Be Considered Under Sentence Four
This Court cannot consider evidence submitted after the ALJ issued her decision
to determine whether substantial evidence at the time, to uphold the ALJ’s decision. See
Cline v. Com’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996); Casey v. Sec’y of HHS, 987
F.2d 1230, 1233 (6th Cir. 1993); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).
Based upon the evidence cited by the ALJ, including medical records and medical opinion

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evidence that she discussed, I conclude that substantial evidence exists to support her
determination.
Relevant to the review of Plaintiff’s “substantial evidence” challenge, the ALJ found
Plaintiff’s statements concerning the intensity, persistence and limiting effects of her
symptoms to be “not entirely consistent with the medical evidence and other evidence in
the record….[and her] allegations [to be] out of proportion to the medical evidence and
other evidence.” (Tr. 19).

In fact, although Plaintiff initially claimed some physical

impairments, there is no evidence of any severe physical impairment. In this appeal,
Plaintiff does not challenge the ALJ’s determination that she can perform work at all
exertional levels.
The ALJ also pointed out numerous inconsistencies between Plaintiff’s subjective
complaints and more objective evidence concerning her mental limitations. (See e.g., Tr.
20-21). For example, although Plaintiff alleges a disability onset date of October 18, 2010,
she did not appear to have sought any mental health treatment until more than three
years after that date; she was first seen for depression at Centerpoint Health on
November 26, 2013 (Id). Plaintiff started outpatient counseling with a social worker at
that facility on December 10, 2013. On January 13, 2014, she returned to Centerpoint,
now called Talbert House, and was prescribed Prozac. In March 2014 she was diagnosed
with bipolar disorder and her medication was changed.
The ALJ discussed multiple treatment records from Talbert House dating from the
beginning of her treatment through October 27, 2015, and overall noted that the course
of Plaintiff’s treatment at Talbert House and elsewhere was “not consistent with disabling
mental impairment.” (Tr. 20). Plaintiff has never been psychiatrically hospitalized or
required Emergency Department care. While she has received regular treatment at
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Talbert House, she has never “required or received intensive outpatient mental health
services,” and her thought process, speech, recent and remote memory, and attention
and concentration have all been found to be “normal.” (Tr. 20).
In addition to the mental health treatment records, the ALJ gave “great weight” to
a March 20, 2014 psychological consultative examination by Jennifer Stoeckel, Ph.D. Dr.
Stoeckel diagnosed depressive disorder not otherwise specified and assigned a global
assessment of functioning (“GAF”) score of 59, reflective of moderate symptoms. (Tr.
20). Regarding work-related mental abilities, Dr. Stoeckel opined that Plaintiff appeared
capable of performing simple tasks and could understand and apply instructions in a work
setting consistent with low average to average intellectual abilities. (Tr. 489). In addition,
Dr. Stoeckel believed that Plaintiff’s mental health symptoms secondary to her depression
“may interfere with her ability to respond appropriately to the public or constructive
criticism,” and “[u]nder stress, she is likely to develop increased depressive
symptomatology, isolation, and withdrawal. (Tr. 489; see also Tr. 20).
Dr. Stoeckel’s opinions are consistent with the RFC as formulated by the ALJ, as
are the opinions of two state agency reviewing psychologists, whose opinions the ALJ
gave “considerable weight.” (Tr. 21). All three consulting opinions also are consistent
with the ALJ’s ultimate non-disability determination. Thus, substantial evidence in the
record before the ALJ supports the Commissioner’s decision.

Because substantial

evidence exists, remand under Sentence Four of 42 U.S.C. § 405(g) is not appropriate.
2. Plaintiff’s Evidence Does Not Require Remand Under Sentence Six
Because Plaintiff proceeds pro se in this Court, the undersigned additionally has
construed her Statement of Errors as suggesting that remand for review of the additional
Talbert House records could be appropriate under Sentence Six of 42 U.S.C. § 405(g).
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While the additional Talbert House records cannot be considered to determine whether
substantial evidence exists to uphold the ALJ’s decision under Sentence Four, new
evidence can support remand under Sentence Six. See Cline v. Com’r of Soc. Sec., 96
F.3d at 148. However, a court can remand for consideration of new evidence only if the
plaintiff establishes that the evidence is both new, in that it was “not in existence or
available to the claimant at the time of the administrative proceeding,” and “material,”
meaning there is “a reasonable probability that the Secretary would have reached a
difference disposition.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir.2001) (internal
quotations and citations omitted); see also Hollon ex rel. Hollon v. Com'r of Soc. Sec., 447
F.3d 477, 483 (6th Cir. 2006). Moreover, the plaintiff must also establish good cause for
her failure to earlier present the evidence to the ALJ. See Bass v. McMahon, 499 F.3d
506 (6th Cir. 2007).
On the record presented, remand under Sentence Six is not appropriate. It is the
Plaintiff’s burden to provide a complete record to the ALJ. See 20 C.F.R. § 404.1512. By
the time of the hearing, the ALJ had more than 1,000 pages of records, including at least
973 pages of medical records submitted by the Plaintiff. (See, e.g., Tr. 341, 349-1321).
The mental health records reviewed by the ALJ included a number of Talbert House
treatment records reflecting treatment between November 26, 2013 and October 27,
2015. In addition, the ALJ reviewed treatment records from Behavioral Health Services
between November 2013 and October 27, 2015, and the opinions of three different
psychological consultants. At the April 26, 2016 hearing, the ALJ alerted Plaintiff that she
did not have the most recent records from Talbert House and asked Plaintiff to execute

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releases in order to obtain those records. (Tr. 30, 93). On May 5, 2016, a letter was
mailed to Talbert House, requesting records from the prior six months.1 (Tr. 29).
Notably, Plaintiff offers no explanation at all for her original failure to submit those
records prior to the date of the hearing before the ALJ. See Holton ex rel. Holton, 447
F.3d 477, 485 (6th Cir. 2006) (“Holton has not even attempted to show that these
materials were unavailable to her or her prior counsel during the course of the
administrative proceedings”); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (to prove
“good cause,” Plaintiff must demonstrate “a reasonable justification for the failure to
acquire and present the evidence” to the ALJ) (additional citation omitted).
Despite Plaintiff’s failure to show good cause (or any cause at all), the undersigned
has reviewed the belatedly submitted evidence to determine whether it is “new” and
“material” under Sentence Six. (See Tr. 32-35; 40-86). The records cannot be considered
“new” insofar as the vast majority of the records existed before the date of the hearing,
and all of the records were generated prior to the date of the ALJ’s written decision.2
Plaintiff’s failure to show the evidence is “new” in any way defeats any claim that this
Court should remand under Sentence Six. Accord Cuthbertson v. Com’r of Soc. Sec.,
Case No. 1:11-cv-582, 2012 WL 2620257, at **5-6 (S.D. Ohio July 5, 2012), adopted at
2012 WL 3073232 (S.D. Ohio July 30, 2012).
Even if Plaintiff could show both that the records were “new” and that she had good
cause for failing to present the records to the ALJ in this case, she still has failed to show

states that the ALJ requested copies of the latest records “within ten days” but the referenced
letter does not appear to list a time limit for submission of the additional records. (See Doc. 11 at 3, citing
Tr. 29). An ALJ cannot be expected to hold a record open indefinitely. Here, the hearing was held on April
26, 2017 and the ALJ’s written decision was not rendered until nearly two months later, on June 21, 2017.
2The most recent treatment note is dated June 17, 2016, a few days before the ALJ’s June 21, 2016
decision.
1Defendant

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that the evidence is “material.” “In order for the claimant to satisfy this burden of proof as
to materiality, [she] must demonstrate that there was a reasonable probability that the
[Commissioner] would have reached a different disposition of the disability claim if
presented with the new evidence.” Sizemore v. Sec’y of Health and Human Servs., 865
F.2d 709, 711 (6th Cir. 1988).
The tendered records are relevant to the assessment of Plaintiff’s mental
limitations. However, the ALJ had already determined based on Talbert House and other
treatment notes, as well as three psychological consultative reports, that Plaintiff was
limited to completing simple to detailed tasks in a setting that did not have the need for
close sustained focus/concentration or sustained fast pace, with only superficial contact
with co-workers and the public, and a need to work in a routine environment with
infrequent changes. (Tr. 18). Plaintiff points to nothing in the record that would require
any greater limitations. In addition, the opinions of the psychological consultants were
well-supported, and it was reasonable for the ALJ to give them great weight in assessing
Plaintiff with less than disabling mental limitations. The most recent pages of treatment
notes do not contain any additional RFC opinions, and do not otherwise suggest
additional limitations that would be inconsistent with those assessed by the ALJ. To the
contrary, the latest notes regularly note “no new issues.” (Tr. 32-35, 40-86). Thus, there
is no “reasonable probability” that the ALJ would have reached a different conclusion on
the issue of Plaintiff’s disability if she had been presented with the additional Talbert
House records.
In sum, the records that Plaintiff urges this Court to consider cannot be considered
to determine whether substantial evidence existed to support the ALJ’s decision.

The

undersigned finds, based upon the administrative record that was before the ALJ at that
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time, that the June 21, 2016 non-disability determination is substantially supported.
Additionally, remand under Sentence Six is not warranted because Plaintiff has failed to
show “good cause” for her failure to submit the additional 58 pages of records to the ALJ
prior to the hearing and/or prior to the ALJ’s written decision, and Plaintiff also has failed
to show that the evidence is either “new” or “material” as those terms are defined under
the regulations and relevant case law.
III. Conclusion and Recommendation
For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s
decision be AFFIRMED as supported by substantial evidence, and that this case be
CLOSED.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STEPHANIE GRAY,

Case No. 1:17-cv-666
Dlott, J.
Bowman, M.J.

Plaintiff,
v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of
the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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