TERRENCE G. BERG, District Judge.
This matter is before the Court on Magistrate Judge R. Steven Whalen's Report and Recommendation of February 26, 2014 (Dkt. 11), recommending that Plaintiff's motion for summary judgment be denied, that Defendant's motion for summary judgment be granted, and that the findings and conclusions of the Commissioner be affirmed.
The law provides that either party may serve and file written objections "[w]ithin fourteen days after being served with a copy" of the Report and Recommendation. 28 U.S.C. § 636(b)(1). Plaintiff filed timely objections (Dkt. 22) to the Report and Recommendation. A district court must conduct a de novo review of the parts of a Report and Recommendation to which a party objects. See 28 U.S.C. § 636(b)(1). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
The Court has reviewed Magistrate Judge Whalen's Report and Recommendation, and Plaintiff's objections thereto. For the reasons set forth below, Plaintiff's objections are OVERRULED, and the Report and Recommendation is ACCEPTED and ADOPTED as the opinion of the Court.
The Social Security Act (the Act) "entitles benefits to certain claimants who, by virtue of a medically determinable physical or mental impairment of at least a year's expected duration, cannot engage in `substantial gainful activity.'" Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant qualifies as disabled "if []he cannot, in light of her age, education, and work experience, `engage in any other kind of substantial gainful work which exists in the national economy.'" Combs, 459 F.3d at 642 (quoting 42 U.S.C. § 423(d)(2)(A)).
Under the authority of the Act, the Social Security Administration (SSA) has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(4). The five steps are as follows:
Combs, 459 F.3d at 642-43.
"Through step four, the claimant bears the burden of proving the existence and severity of limitations caused by h[is] impairments and the fact that []he is precluded from performing her past relevant work." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). If the analysis reaches the fifth step, the burden transfers to the Commissioner. See Combs, 459 F.3d at 643. At that point, the Commissioner is required to show that "other jobs in significant numbers exist in the national economy that [claimant] could perform given h[is] [residual functional capacity or] RFC and considering relevant vocational factors." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
Judicial review of the Commissioner's final decision is authorized pursuant to 42 U.S.C. § 405(g). Where, the Appeals Council denies review, the ALJ's decision stands as the Commissioner's final decision. See 20 C.F.R. § 404.981. Judicial review, however, is circumscribed in that the court "must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record." Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence is "such relevant evidence as a reasonable mind might accept to support the ALJ's conclusion." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (quotation marks omitted) (quoting Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)). This substantial evidence standard is less exacting than the preponderance of evidence standard. See Bass, 499 F.3d at 509 (citing Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 1996)). For example, if the ALJ's decision is supported by substantial evidence, "then reversal would not be warranted even if substantial evidence would support the opposite conclusion." Bass, 499 F.3d at 509.
Plaintiff raises four objections to Magistrate Judge Whalen's recommendation, namely, that Magistrate Judge Whalen erred in: (1) affirming the ALJ's ruling that a brief, aborted, attempt by Plaintiff to work in construction was probative of non-disability and reflected negatively on Plaintiff's credibility; (2) failing to fully account for the impact of Plaintiff's migraine headaches; (3) failing to address Plaintiff's contention that the ALJ did not adequately develop the record; and (4) failing to order a "sentence six" remand, to consider new evidence generated after the ALJ's decision, relating to Plaintiff's alleged foot problems. None of these objections warrants disturbing Magistrate Judge Whalen's recommendation.
First, as to Plaintiff's unsuccessful work attempt, the ALJ properly referenced this brief employment as a construction laborer as bearing on Plaintiff's credibility. The credibility determination, guided by Social Security Ruling
As to Plaintiff's second objection, that Magistrate Judge Whalen did not fully account for Plaintiff's alleged migraines, this objection is also not well-taken. Magistrate Judge Whalen addressed Plaintiff's arguments concerning migraines, and found that the ALJ "devoted three single-spaced paragraphs to the migraine condition, noting that the condition responded well to Benadryl and Compazine" (Dkt. 21 at 16, citing Tr. 28). Plaintiff's objections do not point to any medical records related to his migraines that the ALJ allegedly ignored or misinterpreted. Magistrate Judge Whalen's recommendation concerning the ALJ's conclusions about Plaintiff's migraines is sound.
Next, Plaintiff objects that Magistrate Judge Whalen failed to address his contention that the ALJ did not adequately develop the record. Specifically, Plaintiff argues that "the ALJ's opinion lacks any discussion of [P]laintiff's lower extremity issues, likely the result of a lack of medical evidence on the subject" (Dkt. 22 at 4). By "lower extremity issues," Plaintiff is apparently referring to his flat feet. First, this objection is belied by the ALJ's opinion, which recognized Plaintiff's flat feet as a severe impairment, and explicitly noted that Plaintiff "stated that he can walk up to one-mile before needing to stop because his feet hurt" (Tr. 26). Thus, contrary to Plaintiff's objection, the ALJ did consider and discuss Plaintiff's "lower extremity issues." As to Plaintiff's contention that the ALJ should have obtained additional medical records pertaining to his flat feet, "[t]he burden of providing a complete record, defined as evidence complete and detailed enough to enable the Secretary to make a disability determination, rests with the claimant." Landsaw v. Sec'y Health & Human Serv's., 803 F.2d 211, 214 (6th Cir. 1986) (citing 20 C.F.R. §§ 416.912, 416.913(d)). However, "special circumstances" exist "when a claimant is (1) without counsel, (2) incapable of presenting an effective case, and (3) unfamiliar with hearing procedures ...." Wilson v. Comm'r Soc. Sec., 280 Fed. App'x 456, 459 (6th Cir. 2008) (citing Lashley v. Sec'y Health & Human Servs., 708 F.2d 1048, 1051-52 (6th Cir.1983)). In such a case, "an ALJ has a special, heightened duty to develop the record." Id. "To satisfy this special duty," the Sixth Circuit instructs, "the administrative law judge must scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts. He must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Lashley, 708 F.2d at 1052 (internal citations and quotation marks omitted). In this case, Plaintiff has not demonstrated that "special circumstances" exist, sufficient to give rise to a "special, heightened duty" on the ALJ to develop the record. Plaintiff was represented by counsel during the hearing, and does not argue that he was somehow incapable of presenting an effective case or unfamiliar with the hearing procedures. Plaintiff also objects that the ALJ should have ordered a consultative examination. The regulations governing Social Security claims specify that "[a]n ALJ has discretion to determine whether further evidence, such as additional testing or expert testimony, is necessary." Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (citing 20 C.F.R. §§ 404.1517, 416.917). While the ALJ has the responsibility make a full inquiry into the issues before rendering a decision, 20 C.F.R. § 416.1444, in expounding upon this duty, the Sixth Circuit adopted the following statement from the Fifth Circuit in explaining how this responsibility impacts an ALJ's decision whether to request a consultative examination:
Landsaw v. Sec'y of Health and Human Serv's, 803 F.2d 211, 214 (6th Cir. 1986) (citing Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977)). In the instant case, the ALJ was not compelled to seek a consultative examination because such an examination was not necessary in order for the ALJ to make a decision regarding Plaintiff's disability application. The medical evidence, and Plaintiff's own testimony, supported the ALJ's decision. Thus, despite the absence of a consultative examination, the record was sufficient.
Finally, Plaintiff objects that Magistrate Judge Whalen did not order a "sentence six" remand, for consideration of additional medical records pertaining to Plaintiff's feet. Specifically, Plaintiff requests that this case be remanded so that the ALJ can consider a January 3, 2011 report from Dr. Christoher Tisdel of the Michigan International Foot and Ankle Center (Dkt. 16, Ex. 1). This report diagnosed Plaintiff with "[b]ilateral congenital pes plano valgus alignment with hyper pronation [i.e., flat feet]," and "[p]robable bilateral tarsal tunnel syndrome." Id. Dr. Tisdel did not place any particular restrictions on Plaintiff, due to this diagnosis, but he did recommend an "EMG nerve conduction study." The record before the Court does not indicate whether such a follow-up study was done.
Plaintiff did not previously submit Dr. Tisdel's report the ALJ, but did submit it to the Appeals Council. Evidence submitted to the Court after the close of administrative proceedings cannot be considered for purposes of substantial evidence review. See Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Similarly, where the claimant presents new evidence to the Appeals Council, but the Appeals Council declines to review the ALJ's decision, that new evidence may not be considered during review on the merits. See Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993). Instead, the new evidence can be considered only for purposes of remand pursuant to "sentence six" of 42 U.S.C. § 405(g), which authorizes the Court to remand a case for further administrative proceedings "if the claimant shows that the evidence is new and material, and that there was good cause for not presenting it in the prior proceeding." Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). "New evidence is cumulative and not sufficient to warrant remand if it relates to an issue already fully considered by the Commissioner ... [A]dditionally, evidence that a Plaintiff's health has deteriorated since the Commissioner's decision is not material to that application, and the appropriate remedy is to file a new application." Farler v. Astrue, 10-657, 2011 WL 3715047, at *6 (S.D. Ohio July 29, 2011) (citations omitted). The evidence is material "only if there is a `reasonable probability that the Secretary would have reached a different disposition of the disability claim if presented with the new evidence.'" Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (quoting Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001)); see also Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007) ("Material evidence is evidence that would likely change the Commissioner's decision").
A sentence six remand is not warranted in this case. First, Plaintiff has not established "good cause" for the failure to submit records regarding his foot condition prior to the administrative decision. Plaintiff characterized the newly submitted material as an "attempt[] to cure" the ALJ's "error" in failing to develop the record. However, he provided no cause for his own failure to obtain treatment or a referral to a specialist to assess this condition before the ALJ's November 2010 decision. Second, the ALJ credited Plaintiff's allegations of foot pain by limiting him to four hours walking each day for no more than half an hour at a time (Tr. 24). Because Dr. Tisdel's report does not suggest greater limitations than those found in the RFC, the report is not "material" insomuch as this report would not likely change the Commissioner's decision to deny Plaintiff's claim. Thus, a sentence six remand is not warranted.
For the reasons set forth above,
It is hereby ORDERED that Magistrate Judge Whalen's Report and Recommendation of February 26, 2014 (Dkt. 21) is ACCEPTED and ADOPTED.
It is FURTHER ORDERED that Plaintiff's motion for summary judgment (Dkt. 16) is DENIED and Defendant's motion for summary judgment (Dkt. 20) is GRANTED.
It is FURTHER ORDERED that the findings and conclusions of the Commissioner are AFFIRMED.
