Rider v. Commissioner of Social Security

Filing 17

OPINION AND ORDER. Signed by Judge James L. Graham on 3/12/2018. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kimberly Lynn Rider,
Plaintiff,
vs.

Case No 2:17-cv-41

Commissioner of Social Security,
Defendant.

OPINION AND ORDER
Plaintiff, Kimberly Lynn Rider, brings this action under 42
U.S.C. §405(g) for review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying her application for
disability insurance benefits.

Plaintiff applied for disability

insurance benefits in May, 2013, asserting disability from back
pain, depression, fibromyalgia, anxiety, arthritis, poor memory,
asthma, degenerative disc disease, and leg, knee, and ankle pain.
(R. at 237-238).

A hearing was held on December 9, 2015, at

which plaintiff, represented by counsel, appeared and testified.
(R. at 137-161).

A vocational expert also testified at the

hearing, stating that based on plaintiff’s age, education, and
work

experience

and

the

residual

functional

capacity

(“RFC”)

determined by the administrative law judge (“ALJ”), plaintiff
could perform jobs available in the national economy.
154-159).

(R. at

On January 19, 2016, the ALJ issued a decision finding

that plaintiff was not disabled at any time through December 31,
2015, the date last insured.

(R. at 117-132).

On September 22,

2016, the Appeals Council denied plaintiff’s request for review

and

adopted

decision.

the

ALJ’s

decision

as

the

Commissioner’s

final

(R. at 1-3).

This matter is before the court on plaintiff’s statement of
errors (Doc. 10), the Commissioner’s memorandum in opposition
(Doc. 15), plaintiff’s reply (Doc. 16), and the administrative
record

(Doc.

statements

9).

of

For

error

the

are

reasons

that

overruled,

follow,

and

the

plaintiff’s

Commissioner’s

decision is affirmed.

I. Administrative Record
A. Plaintiff’s Hearing Testimony
At the December, 2015, administrative hearing, plaintiff
testified that she stopped working in 2010 because of pain.
at 141-142).

(R.

Plaintiff stated that she cannot lift, reach above

her head, or put her dishes away in a cupboard with her right arm
because

of

pain

in

her

shoulder,

daughter-in-law clean her house.
testified

that

she

shoulder,

and

that

periods of time.

suffers
she

from

cannot

and

her

daughter

(R. at 142-43).
pain

stand,

(R. at 144-145).

that

in

her

sit,

or

and

Plaintiff

back,

leg,

and

walk

for

long

Plaintiff further testified

that after her recent back surgery, her pain “is like 20 times
worse now.”

(R. at 146).

Plaintiff opined that she is able to

sit, stand, or walk for up to fifteen minutes at a time.
146).

(R. at

Plaintiff further testified that she is no longer able to

read or play games because her pain affects her concentration and
memory, and that she no longer attends church, drives, or walks

2

around

the

grocery

store.

(R.

at

147-48).

She

received

injections in her knees that helped “a little” and gave her pain
relief for approximately one month.

(R. at 150).

B. Medical Records
1. Shelly Dunmyer, M.D.
On

September

13,

2012,

plaintiff

visited

practice and was seen by Janell Potts, CRNP.
that “she just hurt everywhere.”
determined

that

a

previous

Dr.

Plaintiff reported

(R. at 427).

spinal

MRI

Dunmyer’s

did

Nurse Potts

not

show

disc

protrusion or nerve entrapment, and concluded that plaintiff’s
back problem was improving in some respects.
September

17,

2012,

and

October

reported back pain to Nurse Potts.

29,

2013,

(R. at 427).
plaintiff

On

again

(R. at 398, 423).

On three occasions in 2013, Dr. Dunmyer examined plaintiff
and found tenderness over the musculature in the lumbosacral
spine, with limited range of motion in flexion and extension
secondary to pain, but with a lower extremity strength of 5/5 and
a straight leg raise which was negative bilaterally in a seated
position.

(R. at 402, 405, 416).

On March 6, 2014, plaintiff

complained of continuing pain and bruising of the coccyx after a
fall in February, 2014.

(R. at 543-544).

Dr. Dunmyer found that

plaintiff’s lumbar disk condition was stable and recommended the
use of a hemorrhoid ring.

(R. at 544).

2. Genesis Healthcare System
Shane Backus, M.D., looked at the results of plaintiff’s
September

13,

2013,

MRI

of

the

3

lumbar

spine,

and

reported:

vertebrae heights within normal limits, expected marrow signal,
and hemangioma at S1, alignment with normal limits, and preserved
disk space; four small disk bulges in other vertebrae, with
minimal central canal stenosis but no neural foramina and minimal
or no central canal stenosis; and a small annular tear at L5-S1.
(R. at 462).
On

October

8,

2013,

plaintiff

therapy evaluation for back pain.
therapist

reported

decreased

was

seen

for

(R. at 375.)

range

of

a

physical

The physical

motion,

decreased

flexibility, decreased muscular strength, pain between 2-9 on a
10-point scale, and palpable tenderness between the L3 and L5
vertebrae.

(R. at 375).

On October 15, 2013, plaintiff reported

her pain at 4-5 out of 10, and on December 2, 2013, and December
5, 2013, plaintiff reported that her lumbar back pain was 7.5 out
of 10.

(R. at 380).

On October 10, 2013, plaintiff underwent a knee x-ray that
showed

preserved

medial

and

lateral

joint

compartments

bilaterally in both knees, a small enthesopathic spur superior
pole of right patella, and a tiny rounded density in the anterior
joint space of the right knee on lateral view.

(R. at 464).

Andrew Guglielmi, D.O., reported the results of an October 19,
2013,

MRI

of

plaintiff’s

right

knee,

which

showed

minimal

degenerative change of the patellofemoral compartment, and no
acute

osseous

abnormality,

internal

ligamentous

derangement,

discrete meniscal tear, or loose intra-articular body.
466).

4

(R. at

James Neuenschwander, M.D., reported on the results of a
February 15, 2014, non-contrast CT scan of plaintiff’s lumbar
spine following plaintiff’s fall that month.

He found: normal

height and alignment of the lumbar vertebrae; no evidence of
acute fracture or focal subluxation; intact posterior elements;
mild disk space narrowing at L5-S1; unremarkable paraspinal soft
tissues, and no acute osseous abnormality.

(R. at 519, 521).

3. Genesis Pain Management Clinic
On December 4, 2013, plaintiff saw Yahya Bakdalieh, M.D.,
for

management

of

her

lower

back

pain.

(R.

at

387-88).

Plaintiff reported that lifting and standing or sitting for long
periods of time exacerbate her lower back pain, and that heat and
ice treatment give her some relief but physical therapy does not.
(R. at 387).

Dr. Bakdalieh reported a good active range of

motion, and lower extremity muscle strength at 5/5.

(R. at 387).

He diagnosed lumbar spondylosis without myelopathy, chronic low
back pain, and lumbar degenerative disc disease.
505-506).

(R. at 388,

On December 10, 2013, plaintiff underwent a bilateral

medial branch block of her lumbar spine without complications.
(R. at 511).
4.

Orthopaedic Associates of Zanesville
On November 29, 2013, plaintiff saw Robert J. Thompson,

M.D., complaining of right knee pain, upper thigh pain, and right
ankle pain.
“aching

and

(R. at 384).
dull

throbbing

Plaintiff described the pain as
pain,”

which

she

notices

“with

activity, sleeping and walking” but which does not disturb her

5

gait.

(R. at 384).

Dr. Thompson found crepitus and trace

effusion of the right knee and moderate tenderness over the right
medial joint line, but no tenderness over the right lateral joint
line and a full range of motion with no discomfort.

(R. at 384).

Christopher C. Bernett, PA-C, interpreted plaintiff’s x-rays
and found moderate arthritis of the medial compartment of the
right knee.

(R. at 386).

Plaintiff’s MRI of the same knee was

normal and she received an injection of Kenalog and Lidocaine.
(R.

at

385).

On

December

18,

2014,

plaintiff

requested

a

cortisone injection in her right knee, stating that a cortisone
treatment from November, 2014, gave her “good relief.”
572).

(R. at

Plaintiff returned on July 1, 2015, with pain in both

knees and in her right shoulder.
examination

revealed:

no

(R. at 574).

atrophy,

Mr. Bernett’s

crepitation,

deformity,

ecchymosis or scapula winging of the shoulders bilaterally; no
obvious instability of the right shoulder; normal muscle tone;
limited passive abduction and passive forward flexion; limited
passive external rotation at ninety degrees with pain, and pain
when reaching behind her back.

(R. at 575). Plaintiff received a

Kenalog injection in her shoulder.
plaintiff’s shoulder were normal.

(r. at 575).

X-rays of

(R. at 577.)

On October 5, 2015, a non-contrast MRI of plaintiff’s right
shoulder

revealed

no

acute

osseous

abnormality,

a

mild

degenerative change of the acromioclavicular joint with inferior
spurring, mild patchy areas of tendinopathy without evidence of a
retracted

full-thickness

rotator

6

cuff

tear,

and

near

circumferential fluid signal suggesting tenosynovitis.
578).
from

On October 7, 2015, plaintiff reported “minimal relief”
Kenalog

injections

in

prescribed physical therapy.
5.

(R. at

her

shoulder,

and

her

doctors

(R. at 581).

2015 Back Surgery
On October 22, 2015, plaintiff underwent a contrast MRI of

her lumbar spine.

Jane M. Burk, M.D., found a right paracentral

disc

superior

protrusion,

migration,

ventral dural sac at L1-2.

and

(R. at 699).

a

deforming

right

On November 10, 2015,

Michael Shannon, M.D., diagnosed a herniated lumbar disc with
stenosis

at

L1-L2

and

recommended surgery.

bilateral

lumbar

(R. at 701-02).

radiculopathy

and

On November 17, 2015,

plaintiff underwent a decompressive laminectomy and microdisc,
interlaminar fixation with a Coflex at L1-2.

(R. at 708-710).

Dr. Shannon’s note of November 23, 2015, reflects that plaintiff
was out of bed walking around with no leg pain and that the pain
in her back was “improving.”
6.

(R. at 708).

State Agency Review
On January 8, 2014, Maureen Gallagher, D.O., M.P.H., a state

agency medical consultant, reviewed plaintiff’s records and found
that

plaintiff

had

severe

impairments

consisting

of

osteoarthrosis, discogenic and degenerative back disorders, and
fibromyalgia.
plaintiff

had

(R.
mild

at

243).

Dr.

restrictions

in

Gallagher
her

also

activities

found

that

of

daily

living, and that she had the ability to occasionally lift and/or
carry ten pounds; frequently lift and/or carry less than ten

7

pounds; stand and/or walk six hours in an eight-hour workday; and
sit more than six hours in an eight-hour workday.
Dr.

Gallagher

limitations

concluded

were

not

that

plaintiff’s

supported

by

plaintiff was partially credible.

the

(R. at 245).

alleged

functional

evidence,

(R. at 244).

and

that

Dr. Gallagher

concluded that plaintiff retained the physical ability to perform
some types of work, and that she was not disabled.

(R. at 248).

On April 1, 2014, Teresita Cruz, M.D., a state agency consultant,
reviewed
findings.

plaintiff’s

records

and

affirmed

Dr.

Gallagher’s

(R. at 257-259).

C. ALJ’s Decision
On January 19, 2016, the ALJ issued his decision.
117-132.)

(R. at

The ALJ found that plaintiff has the following severe

impairments:

lumbar

spine

degenerate

disc

disease,

stenosis,

radiculopathy, and degenerative joint disease; obesity; allergic
rhinitis; asthma; right knee arthritis; right shoulder bursitis;
fibromyalgia; anxiety; and depression.

(R. at 123).

The ALJ set

forth plaintiff’s RFC as follows:
[C]laimant
has
the
residual
functional
capacity to perform light work as defined in
20 CFR 404.1567(a) except for the following
additional limitations. The claimant is able
to lift and carry 10 pounds occasionally and
five pounds frequently; stand and/or walk for
six hours of an eight-hour workday; sit for
six hours of an eight-hour workday; foot
control
operation
is
limited
to
the
occasional level; and push and pull is
limited as per the exertional weight limits.
The claimant is able to climb ramps and
stairs occasionally; never climb ladders,
ropes, or scaffolds; occasionally stoop;

8

never kneel at the right; never crawl; never
overhead
reach
with
the
right
upper
extremity; unlimited in overhead reaching
with the left upper extremity; and unlimited
in regular reaching forward and to the sides.
She is limited to occasional exposure to
temperatures under 40 degrees Fahrenheit.
She can perform goal-based production/work
measured by end result, not pace work;
limited to simple routine repetitive tasks;
allowed off task five percent of the workday;
and can have occasional and superficial
interaction with the public, coworkers, and
supervisors.
(R. at 126).
The ALJ determined that plaintiff was unable to perform her
past work, but that there were jobs in the local and national
economy that she could perform, and that she was not disabled
under the Social Security Act at any time from October 14, 2010,
through December 31, 2015, the last insured date.

(R. at 131-

132).

II. Standard of Review
When reviewing a case under the Social Security Act, the
Court

“must

affirm

the

Commissioner’s

decision

if

it

‘is

supported by substantial evidence and was made pursuant to proper
legal standards.’”

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,

651 (6th Cir. 2009)(quoting Rogers v. Comm’r of Soc. Sec., 486
F.3d

234,

241

(6th

Cir.

2007));

see

also

42

U.S.C.

§405(g)

(“[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive .
. . .”).

Under this standard, “substantial evidence is defined
9

as

‘more

than

a

scintilla

of

evidence

but

less

than

a

preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’”

Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25
F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential,
it is not trivial.
in

the

record

The Court must “‘take into account whatever

fairly

detracts

Commissioner’s decision.

from

[the]

weight’”

of

the

TNS, Inc. v. NLRB, 296 F.3d 384, 395

(6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S.
474,

487

(1951)).

Nevertheless,

“if

substantial

evidence

supports the ALJ’s decision, this Court defers to that finding
‘even if there is substantial evidence in the record that would
have supported an opposite conclusion.’”

Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997)).
Finally, even if the ALJ’s decision meets the substantial
evidence standard, “‘a decision of the Commissioner will not be
upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.’”

Rabbers, 582 F.3d at 651

(quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
Cir.

2007)).

10

III. Analysis of Plaintiff’s Statements of Error
A. RFC Determination
1. Formulation of an RFC
Plaintiff’s first and second statements of error challenge
the ALJ’s RFC findings.

A claimant’s RFC is the most that a

claimant

his

can

do

§404.1545(a)(1).

despite

or

her

limitations.

20

U.S.C.

Plaintiff bears the burden of providing the

necessary medical evidence to demonstrate her impairments cause
functional

limitations

§404.1512(c).

resulting

in

disability.

20

The ALJ determines a claimant’s RFC.

§§404.1527(e)(2) and 404.1546(c).

20 C.F.R.

The ALJ must evaluate all the

medical evidence as well as the claimant’s testimony.
Comm’r

of

Soc.

Sec.,

368

F.3d

C.F.R.

629,

633

(6th

Cir.

Webb v.
2004).

“Discretion is vested in the ALJ to weigh all the evidence.”
Collins v. Comm’r of Soc. Sec., 357 F. App’x 663, 668 (6th Cir.
2009).

Where

the

ALJ

has

properly

considered

plaintiff’s

evidence and substantial evidence supports his conclusion, “this
Court will defer to that finding even if there is substantial
evidence in the record that would have supported an opposite
conclusion.”

Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595

(6th Cir. 2005); see also Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 376 (6th Cir. 2013).
The

RFC

describing

how

assessment
the

must

evidence

include
supports

a

narrative

each

discussion

conclusion,

citing

specific medical facts and nonmedical evidence.

SSR 96-8p, 1996

WL 374184 at *7 (Soc. Sec. Admin. July 2, 2006).

However, an ALJ

11

need not discuss every piece of evidence in the record for his
decision to stand.

Thacker v. Comm’r of Soc. Sec., 99 F.App’x

661, 665 (6th Cir. 2004).
2. Work at Light Exertional Level
In her first statement of error, plaintiff argues that it
was error for the ALJ to determine that her impairments allow her
to walk and stand enough in an eight-hour day to perform work at
the light exertional level.

(Doc. 10, pp. 6-10).

Plaintiff

contends that her combination of physical impairments, including
back

pain,

arthritis,

decreased
require

the

sedentary level of work.

range

of

conclusion

motion,
that

radiculopathy,

she

(Doc. 10, pp. 7-8).

is

limited

and
to

a

The Commissioner

responds that plaintiff failed to present evidence of physical
limitations greater than those incorporated into the ALJ’s RFC,
and that the ALJ gave appropriate consideration to the evidence
of record, including post-operative treatment notes following
plaintiff’s November, 2015, spinal surgery.

(Doc. 15, pp. 6-7).

The applicable regulation provides:
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects
weighing up to 10 pounds.
Even though the weight
lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.
To be
considered capable of performing a full or wide range
of light work, you must have the ability to do
substantially all of these activities. If someone can
do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to
sit for long periods of time.

12

20 C.F.R. §404.1567.
In

formulating

plaintiff’s

RFC,

the

ALJ

thoroughly

considered plaintiff’s long history of back problems.
127-128).

(R. at

The ALJ noted treatment records which showed some

decreased range of motion of the lumbar spine and tenderness,
including the October, 2015, MRI scan showing some central disc
protrusion at L1-L2, which led to plaintiff’s spinal surgery in
November, 2015.
relied

on:

(R. at 127-28).

Dr.

Dunmyer’s

On the other hand, he also

September,

2012,

notes

showing

improvement in a previously seen disc protrusion and no nerve
entrapment;
changes

a

and

2013

a

MRI

small

showing

annular

mild

tear,

multilevel
but

no

degenerative

radiculopathy;

a

February, 2014, CT scan of the lumbar spine which showed normal
height and alignment of the lumbar vertebrae, no evidence of
acute fracture or focal subluxation, intact posterior elements,
mild disk space narrowing at L5-S1, and mild disc bulges.
127-128).

(R. at

The ALJ stated that although plaintiff testified that

the November, 2015, back surgery made her impairment worse, this
claim

was

uncorroborated

by

medical

evidence;

in

fact,

Dr.

Shannon reported post-surgery that plaintiff was released two
days later and was ambulating and stable, with improving pain and
no leg pain.
“has

been

(R. at 127-29). The ALJ also noted that plaintiff

able

to

heel

and

toe

walk,

had

normal

reflexes,

sensation, and strength, and mostly negative straight leg raising
tests.”

(R. at 127).

13

In regard to plaintiff’s knee problems, the ALJ concluded
that the objective medical evidence did not completely support
plaintiff’s subjective allegations.
ray

taken

in

October,

2013,

The ALJ noted that a knee x-

revealed

only

a

possible

small

suprapatellar bursal effusion bilaterally, and that an October,
2013,

MRI

showed

no

acute

osseous

abnormality,

no

internal

ligamentous derangement or discrete meniscal tear, no evidence of
a

loose

intra-articular

body,

and

only

changes of the patellofemoral compartment.

minimal

degenerative

(R. 128, 464, 466).

The ALJ noted that upon examination on October 17, 2013,
plaintiff had decreased range of motion in her right knee with
tenderness, but full strength in her lower extremities.
128, 402).

(R. at

In November, 2013, Dr. Thompson diagnosed moderate

arthritis, finding that plaintiff had full range of motion in her
knees with no discomfort and normal MRI results.
He

(R. at 385-386).

(R. at 384-86).

In December 2013, Dr. Bakdalieh found that

plaintiff had “[g]ood range of motion,” and muscle strength of
5/5 in her lower extremities.

(R. at 387.)

The ALJ observed

that plaintiff had several cortisone injections to her right knee
which were reportedly effective for several months in treating
her pain.

(R. 128, 572).

The ALJ also acknowledged that plaintiff suffers from right
shoulder

bursitis,

but

concluded

that

the

objective

medical

evidence did not completely support her subjective allegations.
(R. at 128).

Upon examination in July of 2015, plaintiff had

moderate tenderness and limited range of motion in her right

14

shoulder, but did not have any obvious instability, had normal
muscle tone, and had a normal x-ray.

(R. at 128, 575).

An

October, 2015, MRI showed no acute osseous abnormality and only
mild

degenerative

change

of

the

acromioclavicular

joint

with

inferior spurring and mild positive rotator cuff tendinopathy
without a tear.

(R. at 128, 578, 580).

On examination in

October 7, 2015, plaintiff rated her shoulder pain as one in ten.
(R. 128, 580).
The

ALJ

further

concluded

that

complaints were not entirely credible.

plaintiff’s

subjective

At the time of the ALJ’s

decision, SSR 96-7p, 1996 WL 374186 (Soc. Sec. Admin. July 2,
1996) directed the ALJ to assess the credibility of plaintiff’s
statements

concerning

her

symptoms.

That

ruling

was

later

superseded by SSR 16-3p, 2016 WL 1119029, at *7 (Soc. Sec. Admin.
Mar. 16, 2016), which directs the ALJ to look at whether the
claimant’s

statements

about

the

intensity,

persistence

and

limiting effects of symptoms are consistent with the objective
medical

evidence

and

other

evidence

of

record.

The

ALJ’s

analysis in this case passes muster under either ruling, as both
rulings permit the ALJ to consider evidence showing that the
claimant is not following the prescribed treatment in weighing
the claimant’s claims of allegedly disabling symptoms.

See SSR

96-7p, 1996 WL 374186 at *7; SSR 16-3p, 2016 WL 1119029 at *8.
The ALJ observed that most of the treatment for plaintiff’s
physical

impairments

plaintiff

completed

has
only

been

conservative.

twelve

15

out

of

He

noted

twenty-four

that

physical

therapy sessions, and did not use her TENS unit daily.

(R. at

129).
The ALJ’s findings are supported by the evaluations of the
state

agency

physicians,

who

found

even

fewer

limitations

regarding plaintiff’s physical capabilities than those the ALJ
incorporated into the RFC.

(R. at 245-46; 259-60).

The record

before the ALJ includes no expert opinion that plaintiff is
unable to walk or stand for the periods of time required for
light work.
In addition, although the RFC limits plaintiff to “light
work,” the ALJ cited 20 C.F.R. §404.1567(a), which is actually
the

section

defining

“sedentary

work.”

Because

the

RFC

incorporates several additional physical limitations, it can be
viewed as describing a level of work somewhere between light and
sedentary work.
lifting

and

For example, the RFC restricts plaintiff to

carrying

10

pounds

occasionally

and

5

pounds

frequently, which is less than the 20-pound and 10-pound lift and
carry limits applicable to light work, and slightly more than the
“lifting

no

more

than

10

pounds

at

a

time

and

occasionally

lifting or carrying articles like docket files, ledgers, and
small tools” applicable to sedentary work.
(b).

See §404.1567(a) and

The RFC restricts plaintiff to no more that six hours of

standing, walking or sitting and requires that she be permitted
to be off task five percent of the workday.
mandates

only

occasional

foot

control

The RFC further

operation,

pushing

and

pulling only at the specified weight limits, no climbing ladders,

16

ropes or scaffolds, never kneeling to the right (to accommodate
her right knee problems), and never reaching overhead with the
right

upper

extremity

(to

accommodate

her

right

shoulder

problems).

The ALJ posed these limitations to the vocational

expert

relied

and

limitations

on

included

his
in

testimony

the

that

RFC

could

the

ALJ

a

person

perform

with

jobs

in

the
the

national economy.
The

court

plaintiff’s

finds

that

impairments

with

respect

sufficiently
to

her

addressed

limitations

of

standing and walking, and that substantial evidence supports the
ALJ’s

finding

that

plaintiff

can

perform

work

at

exertional level, as further restricted in the RFC.

the

light

Plaintiff’s

first statement of error is without merit.
3. Fibromyalgia
In her second statement of error, plaintiff argues that the
ALJ failed to account for her fibromyalgia-related limitations in
making his RFC determination.

(Doc. 10 at 18-19).

Plaintiff’s

alleged fibromyalgia limitations stem from her pain symptoms,
including

back,

leg

and

shoulder

pain.

The

ALJ’s

decision

indicates that he adequately considered plaintiff’s fibromyalgia
in crafting the RFC.

The ALJ clearly recognized that plaintiff

suffers from fibromyalgia, as he found fibromyalgia to be one of
plaintiff’s severe impairments.

(R. at 123).

The medical records before the ALJ contain few references to
fibromyalgia.

Some

records

simply

plaintiff’s diagnostic history.

17

include

fibromyalgia

in

(R. at 426, 529, 592, 595,

598,600, and 603).
13,

2012,

plaintiff’s

The most detailed records are the September

treatment

notes

complaints

of

of

Nurse

pain

and

Potts,

indicate

which
a

document

diagnosis

of

fibromyalgia and a referral for physical therapy, and the October
29, 2013, treatment notes of Nurse Potts stating that plaintiff
had all positive trigger points and vertebral point tenderness,
and that plaintiff would be referred for a pain program.
398-99, 428).

(R. at

The fact that the ALJ did not specifically refer

to these records does not mean that he did not consider them.
Thacker, 99 F.App’x 661 at 665.
In formulating the RFC, the ALJ adequately considered and
addressed the impact of plaintiff’s pain on her ability to work.
The ALJ specifically acknowledged that “the claimant’s back pain
is complicated by her fibromyalgia and obesity.”

(R. at 127).

Citing plaintiff’s hearing testimony, the ALJ stated that her
“alleged difficulties with activities of daily living seemed to
be due to her physical impairments and pain[.]”

(R. at 125).

The ALJ referred to plaintiff’s reports of pain or lack thereof
in

plaintiff’s

plaintiff’s
shoulder

testimony

hearing

pain;

back

and

testimony

medical
concerning

treatment

notes

records,
her

back,

reporting

including:
leg

lumbar

and
spine

tenderness; Dr. Shannon’s post-surgery report that plaintiff’s
pain was improving and she was having no leg pain; plaintiff’s
complaints of pain in her right knee, which was improved with
cortisone injections; and an October 7, 2015, report in which she
rated her shoulder pain as one out of ten.

18

(R. at 127-28).

As

indicated above, the ALJ accommodated plaintiff’s back, knee and
shoulder pain by incorporating time limits for walking, standing,
and sitting, weight limits and overhead reaching limits in the
RFC.
The ALJ’s assessment of plaintiff’s work capabilities is
supported by the opinions of the state agency physicians, who
also

considered

plaintiff’s

fibromyalgia,

plaintiff was not disabled.
before

the

ALJ

did

not

yet

concluded

(R. 237-248; 251-262).
include

any

expert

that

The record

opinion

that

plaintiff’s physical ability to work was limited or precluded by
her pain or by any other fibromyalgia symptoms.1
The court finds that the ALJ properly considered plaintiff’s
fibromyalgia in formulating plaintiff’s RFC, and that substantial
evidence

supports

the

ALJ’s

RFC

determination.

Plaintiff’s

second statement of error is without merit.
B. Additional Evidence Submitted to Appeals Counsel
Plaintiff submitted certain evidence to the Appeals Council
that was not before the ALJ when he rendered his January 19,
2016, decision.

See 20 C.F.R. §§404.970(b), 416.1470(b)(claimant

can submit new and material evidence to the Appeals Council).
This

evidence

includes

the

November

12,

2015,

notes

of

plaintiff’s surgical consultation with Samuel A. Finck, D.O., who
recommended shoulder surgery, for a surgical consultation; the
1

Insofar as plaintiff’s severe impairments of anxiety and
depression may be viewed as symptoms of fibromyalgia, the court
notes that plaintiff raised no objections to the ALJ’s analysis
of the mental health evaluations and opinions of record or to his
accommodation of those conditions in the RFC.
19

December

8,

2015,

physical

medical

source

statement

of

Dr.

Dunmyer, expressing the opinion that plaintiff was likely to miss
more than four days of work per month and was incapable of even
low stress work, and a similar physical medical source statement
from Dr. Shannon dated March 21, 2016. (R. at 763-764; 788-791;
793-796).
The Appeals Council made plaintiff’s additional exhibits a
part of the record and considered that evidence, along with the
rest

of

findings
evidence.

the
or

record,

in

conclusions

deciding
were

whether

contrary

to

See §§404.970(b), 416.1470(b).

the
the

ALJ’s
weight

action,
of

the

The Appeals Council

concluded that the record did not provide a basis for changing
the ALJ’s decision, and declined plaintiff’s request for review.
(R. at 1-6).
Plaintiff argues that if the new evidence is considered, the
ALJ’s

decision

requires remand.

is

unsupported

by

(Doc. 10 at 11-14.)

substantial

evidence

and

Plaintiff also argues that

the Appeals Council erred by giving an inadequate explanation of
its decision to adopt the ALJ’s decision.

(Doc. 10 at 13-14.)

However, because the Appeals Council denied review, the ALJ’s
decision

became

the

§§404.981, 416.1481.

Secretary’s

final

decision.

20

C.F.R.

It is the ALJ’s decision, and the facts

which were before the ALJ, that are subject to judicial review,
not the decision of the Appeals Council.

42 U.S.C. §405(g);

Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993).

This

court does not have jurisdiction to review the decision of the

20

Appeals Council.

Faucher v. Sec’y of H.H.S., 17 F.3d 171, 174

(6th Cir.1994).
Plaintiff

also

argues

that

the

new

evidence

remand under sentence six of 42 U.S.C. §405(g).

warrants

a

A court may

remand a case to the Commissioner for consideration of additional
evidence only if the party seeking remand demonstrates that 1)
there is good cause for the failure to incorporate this evidence
into the record at the prior hearing and 2) the evidence is new
and material.

42 U.S.C. §405(g); Melkonyan, 501 U.S. 89, 98

(1991); Willis v. Sec’y of H.H.S., 727 F.2d 551, 553–54 (6th
Cir.1984).
To show good cause, the moving party must present a valid
justification for the failure to have acquired and presented the
new evidence in the prior administrative proceeding.

Oliver v.

Sec’y of H.H.S., 804 F.2d 964, 966 (6th Cir. 1986); Willis, 727
F.2d at 554.

“Evidence is new only if it was not in existence or

available to the claimant at the time of the administrative
proceeding.”

Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447

F.3d 477, 484 (6th Cir. 2006) (quoting Foster v. Halter, 279 F.3d
348, 357 (6th Cir. 2001)).
To be “material” within the meaning of §405(g), the new
evidence
condition

1)

must

prior

to

be

relevant

the

and

probative

Commissioner's

to

decision

plaintiff’s
and

2)

must

establish a reasonable probability that the Commissioner would
have

reached

considered.

a

different

decision

if

the

evidence

had

been

Sizemore v. Sec’y of H.H.S., 865 F.2d 709, 711 (6th

21

Cir. 1988); Oliver, 804 F.2d at 966.

Further evidence on an

issue already fully considered by the Commissioner is cumulative,
and is not sufficient to warrant remand.
619 F.2d 1157, 1162 (6th Cir.1980).

Carroll v. Califano,

Evidence that plaintiff's

condition has deteriorated since the Commissioner's decision is
not material. Sizemore, 865 F.2d at 712; Oliver, 804 F.2d at 966.
If

plaintiff

has

experienced

serious

deterioration

since

the

Commissioner’s decision, the appropriate remedy is to file a new
application.
Dr.

Sizemore, 865 F.2d at 712.

Dunmyer’s

statement,

Dr.

December

Shannon’s

8,

2015,

physical

December

2,

medical

2015,

source

letter,

the

Orthopaedic Associates of Zanesville treatment notes dated from
October 20, 2015 to November 18, 2018, and the November 12, 2015,
notes of Dr. Finck all predate the ALJ’s decision by more than a
month.

(R. 739-767, 788-792).

“available

to

proceeding.”

[plaintiff]

at

They were “in existence” and
the

time

Hollon, 447 F.3d 477.

of

the

administrative

Accordingly, they are not

new evidence, and they do not support a remand under sentence
six.
Dr.

Shannon’s

March

21,

2016,

physical

statement appears at first blush to be new.
clear

to

evaluation

what
of

extent

Dr.

plaintiff’s

Shannon’s
condition

source

However, it is not

opinion
during

medical

relates

the

to

period

his

before

December 31, 2015, plaintiff’s last insured date, or to her
condition after that date.
relate

to

plaintiff’s

Insofar as the source statement may

condition

22

prior

to

December

31,

2015,

plaintiff has not shown good cause why she was unable to provide
Dr.

Shannon’s

decision.

opinion

evidence

before

the

ALJ

issued

his

Plaintiff provided Dr. Shannon’s late-November post-

surgery notes.

(R. at 708-710.)

At the December 9, 2015,

administrative hearing, plaintiff, only weeks after surgery and
represented by counsel, did not ask the ALJ keep the record open
to provide additional evidence from Dr. Shannon.
McMahon,

499

F.3d

506,

513

(6th

Cir.

2007)

See Bass v.

(“[P]laintiff’s

counsel did not seek to have the record remain open to submit the
evidence here provided, which in and of itself shows a lack of
good cause.”).
In his December 2, 2015, letter to Dr. Dunmyer, Dr. Shannon
stated

that

plaintiff

would

be

appointment in four to six weeks.

scheduled
(R. at 792).

for

a

follow-up

Thus, it appears

that his next opportunity to evaluate plaintiff was not until
after

December

31,

2015.

Insofar

as

Dr.

Shannon’s

source

statement is based on information obtained after December 31,
2015, that evidence is necessarily based on plaintiff’s condition
after the time period covered by the ALJ’s decision, which ended
on December 31, 2015.

Any medical opinion statement showing a

material change in plaintiff’s impairments or limitations after
that date would be evidence of a deterioration of plaintiff’s
condition since the ALJ’s decision.

Evidence of deterioration is

not sufficient to warrant remand and is properly addressed by the
filing of a new application for disability benefits.
865 F.2d at 712; Oliver, 804 F.2d at 966.

23

Sizemore,

For

the

reasons

explained

above,

the

court

finds

that

plaintiff’s additional evidence does not support remand under
sentence six, and plaintiff’s third statement of error is denied.

IV. Conclusion
Following a review of the record as a whole, the court
concludes that substantial evidence supports the ALJ’s decision
denying benefits.

Accordingly, plaintiff’s statements of error

are overruled, and the decision of the Commissioner is affirmed.
The clerk is directed to enter final judgment in this case.
IT IS SO ORDERED.

Date: March 12, 2018

s/James L. Graham
James L. Graham
United States District Judge

24