Sullivan v. Social Security Administration, Commissioner of

Filing 18

REPORT AND RECOMMENDATION: For the above stated reasons, it is respectfully RECOMMENDED that Plaintiff's motion for judgment on the administrative record (Docket No. 15 ) be DENIED and the Commissioner's decision be affirmed. Signed by Magistrate Judge Barbara D. Holmes on 1/10/2022. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
MICHAEL JAMES SULLIVAN
v.
KILOLO KIJAKAZI1
Commissioner of Social Security

To:

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)
)
)
)
)

No. 2:20-0069

The Honorable Waverly D. Crenshaw, Jr., Chief District Judge

REPORT AND RECOMMENDATION
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial
review of the final decision of the Social Security Administration (“Defendant” or
“Commissioner”) denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”), as provided under Titles II and XVI, respectively, of the
Social Security Act. The case is currently pending on Plaintiff’s motion for judgment on the
administrative record (Docket No. 15), to which Defendant has filed a response. (Docket No. 16.)
Plaintiff has also filed a reply to Defendant’s response. (Docket No. 17.) This matter has been
referred to the undersigned pursuant to 28 U.S.C. § 636(b) for initial consideration and a Report
and Recommendation. (Docket No. 4.)

1

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for former
Commissioner Andrew Saul as the defendant in this lawsuit.

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Upon review of the administrative record as a whole and consideration of the parties’
filings, the undersigned Magistrate Judge respectfully recommends that Plaintiff’s motion (Docket
No. 15) be DENIED.
I. INTRODUCTION
Plaintiff filed applications for DIB and SSI on March 13, 2018, and June 6, 2018,
respectively. (See Transcript of the Administrative Record (Docket No. 11) at 11, 410-11).2 He
alleged that he was unable to work, as of the alleged disability onset date of March 13, 2018,
because of liver disease, a brain tumor, and type 1 diabetes. (AR 11, 469.) The applications were
denied initially and upon reconsideration. (AR 410-11, 444-45.) Pursuant to his request for a
hearing before an administrative law judge (“ALJ”), Plaintiff appeared and testified at a hearing
before ALJ Todd Spangler on September 24, 2019. (AR 37.) The ALJ denied the claim on
November 22, 2019. (AR 8-10.) The Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision on August 27, 2020 (AR 1-4), thereby making the ALJ’s decision the final decision
of the Commissioner. Plaintiff subsequently filed a complaint in this Court seeking review of the
ALJ’s decision.
II. THE ALJ FINDINGS
The ALJ’s unfavorable decision included the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security
Act through September 30, 2023.
2. The claimant has not engaged in substantial gainful activity since March 13,
2018, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: chronic liver disease;
pituitary gland disorder; diabetes mellitus; depressive and related disorders;
2

The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding Bates-stamped number(s) in large black print in the bottom right
corner of each page.
2
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alcohol addiction disorder; and anxiety disorder (20 CFR 404.1520(c) and
416.920(c)).
4. The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except the individual can
occasionally climb ramps and stairs, but can never climb ladders, ropes, or
scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He
must avoid concentrated exposure to hazards. He is limited to simple and
detailed tasks. He can occasionally interact with coworkers, supervisors,
and the public. He can adapt to gradually introduced and infrequent changes
in the workplace.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
7. The claimant was born on September 18, 1981 and was 36 years old, which
is defined as a younger individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from March 13, 2018, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).
(AR 13-24.)

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III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the Court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (i) whether the decision of the Commissioner
is supported by substantial evidence, and (ii) whether the Commissioner made legal errors in the
process of reaching the decision. 42 U.S.C. § 405(g). Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hargett
v. Comm’r of Soc. Sec., 964 F.3d 546, 551 (6th Cir. 2020) (internal citations omitted). If substantial
evidence supports the ALJ’s decision, that decision will be affirmed “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 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). In other words, the ALJ’s decision must be affirmed if his or her “findings and inferences
are reasonably drawn from the record or supported by substantial evidence even if that evidence
could support a contrary decision.” Wright-Hines v. Comm’r of Soc. Sec., 597 F.3d 392, 395 (6th
Cir. 2010).
The Commissioner utilizes a five-step sequential evaluation process to determine whether
a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the issue of disability can be
resolved at any point during the evaluation, the ALJ does not proceed to the next step and the claim
is not reviewed further. Id. First, if the claimant is engaged in substantial gainful activity, he is not
disabled. Id. Second, the claimant is not disabled if he does not have a severe medically
4
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determinable impairment that meets the 12-month durational requirements. Id. Third, the claimant
is presumed disabled if he suffers from a listed impairment, or its equivalent, for the proper
duration. Id. Fourth, the claimant is not disabled if, based on his residual functional capacity
(“RFC”), he can perform past relevant work. Id. Fifth, if the claimant can adjust to other work
based on his RFC, age, education, and work experience, he is not disabled. Id. The claimant bears
the burden of proof through the first four steps, while the burden shifts to the Commissioner at
step five. Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011) (citing Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).
The Court’s review of the Commissioner’s decision is limited to the record made during
the administrative hearing process. Jones v. Berryhill, 392 F. Supp. 3d 831, 843 (M.D. Tenn. 2019)
(citing Jones v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991)). A
reviewing court is not permitted to try the case de novo, resolve conflicts in evidence, or decide
questions of credibility. Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020) (citing
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
B. The ALJ’s Five -Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step five of the five-step process.
The ALJ found that Plaintiff met the first two steps but found at step three that Plaintiff was not
presumptively disabled because he did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was unable to perform any past
relevant work. At step five, the ALJ determined that Plaintiff’s RFC allowed him to perform a
range of light work with express limitations to account for his severe impairments, and that
considering his age, education, work experience, and RFC, there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform. (AR 13-24.)

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C. Plaintiff’s Assertion of Error
Plaintiff presents two assertions of error: (1) that the ALJ failed to properly evaluate his
subjective complaints; and (2) that the ALJ did not have the opportunity to review new and relevant
evidence from Plaintiff’s treating physician, which requires remand for additional consideration.
(Docket No. 15-1 at 4-10.) Plaintiff therefore requests that the Commissioner’s decision be
reversed and benefits awarded pursuant to sentence four of 42 U.S.C. § 405(g), or alternatively
that the Commissioner’s decision be remanded under either sentence four or sentence six of 42
U.S.C. § 405(g) for additional consideration. (Id. at 10.)
Sentence four of 42 U.S.C. § 405(g) states that courts have the power to enter judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” Sentence six of 42 U.S.C. § 405(g) addresses the
need for remand without a decision on the merits in certain circumstances:
The court may, on motion of the Commissioner of Social Security made for good
cause shown before the Commissioner files the Commissioner's answer, remand
the case to the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order additional evidence
to be taken before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding; and the
Commissioner of Social Security shall, after the case is remanded, and after hearing
such additional evidence if so ordered, modify or affirm the Commissioner's
findings of fact or the Commissioner's decision, or both, and shall file with the court
any such additional and modified findings of fact and decision, and, in any case in
which the Commissioner has not made a decision fully favorable to the individual,
a transcript of the additional record and testimony upon which the Commissioner's
action in modifying or affirming was based.
If the case contains an adequate record, “the [Commissioner’s] decision denying benefits can be
reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” HudsonKane v. Berryhill, 247 F. Supp. 3d 908, 914 (M.D. Tenn. 2017) (quoting Mowery v. Heckler, 771
6
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F.2d 966, 973 (6th Cir. 1985)). However, benefits may be awarded immediately “only if all
essential factual issues have been resolved and the record adequately establishes a plaintiff’s
entitlement to benefits.” Holtman v. Saul, 441 F. Supp. 3d 586, 609 (M.D. Tenn. 2020) (quoting
Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)).
1. Plaintiff’s Subjective Complaints.
As part of the denial of Plaintiff’s claim for benefits, the ALJ concluded that, although
Plaintiff’s medical impairments could reasonably be expected to cause his alleged symptoms,
Plaintiff’s statements as to the “intensity, persistence and limiting effects of these symptoms are
not entirely consistent with the medical evidence and other evidence in the record[.]” (AR 17.)
Plaintiff disputes this finding by arguing that the ALJ improperly dismissed his credible statements
regarding the severity of his alleged symptoms. Specifically, Plaintiff suggests that the finding
violates Social Security Ruling (“SSR”) 96-7p, which requires the ALJ to provide reasons for any
credibility finding that are “sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements[.]” 1996 WL
374186, at *2 (July 2, 1996).3
The Court notes initially that SSR 96-7p was rescinded in 2016 and has been replaced by
SSR 16-3p, which sets forth a different standard for evaluating a claimant’s subjective statements
that requires the ALJ to consider and “evaluate whether the statements are consistent with objective
medical evidence and other evidence.” 2017 WL 5180304, at *6 (October 25, 2017). This
evaluation is based on seven factors: (1) the claimant’s daily activities; (2) the location, duration,

3

Social Security Rulings “do not have the same force and effect as statutes or regulations,” but
they are nonetheless “binding on all components of the Social Security Administration” and
“represent precedent final opinions and orders and statements of policy” that are appropriately
relied upon by courts adjudicating Social Security appeals. Blakley v. Comm’r of Soc. Sec., 581
F.3d 399, 406 n.1 (6th Cir. 2009) (citing 20 C.F.R. § 402.35(b)).
7
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frequency, and intensity of the alleged pain or other symptoms; (3) any precipitating or aggravating
factors; (4) the type, dosage, effectiveness, and side effects of any medication the claimant uses;
(5) the claimant’s non-medication treatment; (6) any measures other than treatment the claimant
employs to relieve pain or other symptoms; and (7) other factors concerning the claimant’s
functional limitations and restrictions due to pain or other symptoms. Id. at *7-8 (citing 20 C.F.R.
§ 404.1529(c)(3)). The now inoperative SSR 96-7p previously required the ALJ to make a
“credibility” determination based on the claimant’s statements about the limiting effects of any
alleged symptoms, 1996 WL 374186, at *3 (July 2, 1996), although the Commissioner removed
any reference to the term “credibility” in SSR 16-3p. Nonetheless, there is no substantive change
in the ALJ’s analysis and no reason to assume that case law pertaining to credibility evaluations
under SSR 96-7p has been abrogated. See Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 119
n.1 (6th Cir. 2016) (noting that SSR 16-3p removed the term “credibility” only to “clarify that
subjective symptom evaluation is not an examination of an individual’s character”). Reviewing
courts thus still accord “great weight and deference” to an ALJ’s determination regarding the
consistency of a claimant’s allegations, Calvin v. Comm’r of Soc. Sec., 437 F. App’x 370, 371 (6th
Cir. 2011), and a claimant seeking to overturn the ALJ’s decision continues to “face an uphill
battle.” Daniels v. Comm’r of Soc. Sec., 152 F. App’x 485, 488 (6th Cir. 2005).4
On review of the administrative opinion, the Court finds no error in the ALJ’s assessment
of Plaintiff’s subject complaints. The ALJ set forth several reasons for concluding that Plaintiff’s
statements of disabling symptoms were not entirely consistent with the overall evidence of record.
4

The Court also echoes the sentiments of another district court within the Sixth Circuit regarding
the change in terminology in the more recent ruling: “While the court applies the new SSR, it
declines to engage in verbal gymnastics to avoid the term credibility where usage of the term is
most logical.” Pettigrew v. Berryhill, No. 1:17-CV-01118, 2018 WL 3104229, at *14, n.14 (N.D.
Ohio June 4, 2018), report and recommendation adopted, 2018 WL 3093696 (N.D. Ohio June 22,
2018).
8
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With respect to pituitary gland disorder, the ALJ highlighted “unremarkable” findings from
imaging studies conducted in July 2017. (AR 17, 22, 1321.) The ALJ also noted that despite a
diagnosis of “enlarged liver,” treating providers described Plaintiff’s cirrhosis as “stable,” Plaintiff
denied any symptoms of worsening liver function, and examination findings throughout 2018 were
described as “unremarkable.” (AR 18, 763, 783, 792, 813.) The ALJ additionally highlighted
mental health records that, in contrast to Plaintiff’s claims of disabling mental symptoms,
documented normal mood and affect, good insight, and normal thought content, as well as an
overall “improved” mental status in August 2019. (AR 19, 1463.) All such considerations were
proper under SSR 16-3p.
Moreover, the ALJ noted that despite Plaintiff’s alleged onset date of March 13, 2018,
Plaintiff reported on June 29, 2018 that he was returning to full-time employment with the
Tennessee Department of Transportation (AR 715), a scenario that inherently precludes a finding
of disability. See 20 C.F.R. § 404.1520(b) (“If you are working and the work you are doing is
substantial gainful activity, we will find that you are not disabled regardless of your medical
condition or your age, education, and work experience.”). Plaintiff was fired from that position
just a few months later, which he blamed on his diabetic condition rendering him “unable to
perform [his] job at 100 percent” (AR 49, 57-58), although he reported to a provider in September
2018 that he was in fact terminated after being charged with driving under the influence (“DUI”)
of opioids following a motor vehicle accident in which he was operating a company vehicle.
(AR 1003-04, 1008.) He also later admitted to a provider that he “was arrested for DUI with
Percocets while working and was fired for this.” (AR 1007.) This provides further support for the
ALJ’s adverse findings regarding the consistency of Plaintiff’s allegations, as the loss of
employment for reasons unrelated to any alleged disability “casts doubt” on the reasons a claimant

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is not working. Mendiola v. Soc. Sec. Admin., No. 3:15-cv-0995, 2016 WL 5800470, at *5 (M.D.
Tenn. Sept. 30, 2016) (citing Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir.
2004)).
Plaintiff identifies very little countervailing evidence and fails to challenge any of the
ALJ’s particular findings. He instead relies primarily on his own statements made during the
administrative hearing to support the veracity of his testimony, reasoning that is circular in nature
and therefore unhelpful to Plaintiff’s position. Plaintiff does point to an office note from December
2017 during which he claimed that he was “using up all his sick leave[] at work” to argue that the
constant need to use the restroom and side effects caused by Lactulose (medication used to treat
liver disease) resulted in excessive absenteeism. (AR 45, 696.) As discussed above, however,
Plaintiff’s suggestion that he is unable to maintain a full-time job due to such issues is contradicted
by his continued employment through September 2018, when he was fired not due to ongoing
health issues but because of a criminal DUI charge apparently incurred in the course of his
employment. (AR 1003-04.)5 Plaintiff has therefore failed to provide any indication that the ALJ
erred in his assessment, which is fatal to his argument given the enormous deference accorded to
the ALJ’s determination. See Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 476 (6th Cir.
2016) (“While in theory we will not disturb an ALJ’s credibility determination without a
compelling reason … in practice ALJ credibility findings have become essentially
unchallengeable.”) (internal citations and quotations omitted).
Finally, Plaintiff makes a passing reference to “new evidence” obtained after the
administrative hearing that, according to him, necessitates remand because it “would support the
continued severity of his diabetes and chronic liver issues[.]” (Docket No. 15-1 at 6.) The Court
5

The record also reveals that Plaintiff was the subject of an additional DUI charge in June 2018.
(AR 1008.)
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first notes that the lone record citation by Plaintiff shows only that he was transported by
ambulance to a hospital in February 2020 for treatment of acute cholecystitis and a low platelet
count (AR 233), which does not overcome the substantial evidence cited by the ALJ in support of
his credibility determination. Second, as discussed in more detail below, the Court finds no basis
for remanding the instant case under sentence six of 42 U.S.C. 405(g) for additional consideration
even if such “new evidence” militated in Plaintiff’s favor. For these reasons, the record provides
no support for a finding that the ALJ committed reversible error.
In sum, the Court finds that because the ALJ reasonably concluded that Plaintiff’s
allegations were not entirely consistent based on specific discrepancies between Plaintiff’s
testimony and the medical evidence of record, the credibility finding is supported by substantial
evidence. See Joseph v. Comm’r of Soc. Sec., 741 F. App’x 306, 312 (6th Cir. 2018) (“[B]ecause
the ALJ’s credibility determination was based on [his] comparison of the medical evidence with
[the claimant’s] testimony, we do not find that it lacked substantial evidence.”). In addition to the
ALJ’s stated reasons for this finding, a review of the record reveals other unfortunate habits that
weigh against Plaintiff’s credibility, including a failure to comply with providers’ recommended
treatment—including dietary restrictions and alcohol and tobacco abstinence (AR 870, 879, 883,
912, 965, 1003-04, 1008)—which is a “legitimate credibility factor for an ALJ to consider,”
Robertson v. Colvin, 2015 WL 5022145, at *6 (E.D. Tenn. 2015), as well as a tendency to mislead
providers regarding the extent of his substance use. (AR 980, 1002, 1008, 1014-17, 1024.) Such
evidence further bolsters the ALJ’s determination. Accordingly, the Court finds that substantial
evidence supports the ALJ’s determination and this assertion of error is therefore rejected.

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2. Request for Sentence Six Remand.
Plaintiff next argues that this matter should be remanded under sentence six of 42 U.S.C.
§ 405(g) to allow the ALJ to consider additional evidence that was not available at the
administrative hearing. Specifically, Plaintiff wants an ALJ to have the opportunity to consider a
functional assessment completed by his treating physician, Dr. Phillip Bertram, on March 17,
2020, nearly six months after the administrative hearing concluded. (AR 37, 346-51.) For multiple
reasons, the Court finds no basis on which to grant Plaintiff’s requested relief.
Sentence six of 42 U.S.C. § 405(g) states in relevant part that the Court “may at any time
order additional evidence to be taken before the Commissioner of Social Security, but only upon
a showing that there is new evidence which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding[.]” While there is typically little
question that a treating physician’s opinion regarding a claimant’s functional capacity is material
to an ALJ’s consideration, Plaintiff makes no attempt to provide good cause for his failure to
procure such evidence until half a year after the administrative hearing and nearly four months
after the ALJ issued his decision, which dooms his argument. See Moore v. Comm’r of Soc. Sec.,
573 F. App’x 540, 544 (6th Cir. 2014) (“To the extent [the claimant] attempts to request review of
evidence submitted by her treating physician after the ALJ issued its decision … that evidence is
not part of the administrative record and is not subject to our review.”). He instead relies only on
the fact that the records “were not available to the ALJ prior to the hearing” (Docket No. 15-1 at
10), an observation that of course does nothing to explain why such records were not available at
the time of the administrative hearing. See Perkins v. Apfel, 14 F. App’x 593, 598 (6th Cir. 2001)

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(“The mere fact that the evidence at issue was not created until nine months after the ALJ’s
decision ... does not establish good cause.”).6
None of the cases quoted in Plaintiff’s memorandum can rescue his argument. In fact, the
one discussed most extensively in the brief—a Ninth Circuit case—has nothing to do with sentence
six remand, but instead stands only for the principle that an ALJ may not “disregard properly
supported limitations” by ignoring evidence that was part of the administrative record and
therefore available to the ALJ at the time the administrative opinion was issued. See Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). More detrimental still, the Sixth Circuit case
on which Plaintiff relies actually counsels against accepting Plaintiff’s argument, with the court
there concluding that a claimant’s assertion that sentence six remand was necessary because of the
alleged underperformance of his attorney during the administrative process failed to establish good
cause. See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 149 (6th Cir. 1996) (“In order to obtain a
[sentence six] remand for further administrative proceedings, section 405(g) clearly requires a
showing of both materiality and good cause, and Cline falls far short with respect to the latter
requirement.”). Because Plaintiff offers not even a lackluster basis on which good cause might be
based, this assertion of error must be rejected.7

6

In response to Defendant’s argument that Plaintiff failed to provide good cause, Plaintiff filed a
reply brief in which he not only failed to offer any rejoinder but simply restated the verbatim
argument set forth in his initial brief. (Docket No. 15-1 at 9-10; Docket No. 17 at 3-4.)
7
The Court pauses to address another timing issue potentially raised in Plaintiff’s brief. Plaintiff
vaguely suggests that his “poor glucose numbers” discovered in March 2020 have some correlation
to Dr. Bertram’s March 2020 opinion, ostensibly because of the proximity of the events. (Docket
No. 15-1 at 9-10.) As discussed by Defendant, if Plaintiff believes his condition has deteriorated
since the issuance of the administrative opinion, he should file a new application based on this new
period of time. See 20 C.F.R. § 404.620(a)(2) (“If you first meet all the requirements for
entitlement after the period for which your application was in effect, you must file a new
application for benefits.”).
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V. RECOMMENDATION
For the above stated reasons, it is respectfully RECOMMENDED that Plaintiff’s motion
for judgment on the administrative record (Docket No. 15) be DENIED and the Commissioner’s
decision be affirmed.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(a). Failure to file specific written objections within
the specified time can be deemed to be a waiver of the right to appeal the District Court’s order.
See Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Milton, 380 F.3d 909, 912 (6th Cir. 2004)
(en banc). Any responses to objections to this Report and Recommendation must be filed within
14 days of the filing of the objections. See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(b).

Respectfully submitted,

__________________________
BARBARA D. HOLMES
United States Magistrate Judge

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