H. BRENT BRENNENSTUHL, Magistrate Judge.
Before the Court is the complaint (DN 1) of Michael Smith seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 14) and Defendant (DN 20) have filed a Fact and Law Summary. For the reasons that follow, the undersigned orders that judgment be granted for the Commissioner.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 11). By Order entered July 12, 2019 (DN 12), the parties were notified that oral arguments would not be held unless a written request was filed and granted. No such request was filed.
Smith filed an application for a period of disability and disability insurance benefits on August 31, 2016 (Tr. 290-96). Smith alleged that he became disabled on August 13, 2015 as a result of broken back-herniated/spinal disc and shoulder surgery on the left rotator cuff (Tr. 314). Administrative Law Judge David Peeples ("ALJ") conducted a hearing on June 26, 2018 via video conference presiding from Paducah, Kentucky. Smith appeared from Madisonville, KY. Smith was represented by Brian Newlin, an attorney, and Sean P. Sullivan, a non-attorney representative. Also present and testifying was Theresa Wolford, an impartial vocational expert.
In a decision dated October 24, 2018, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 47-56). At the first step, the ALJ found Smith has not engaged in substantial gainful activity since August 13, 2015, the alleged onset date (Tr. 49). At the second step, the ALJ determined that Smith's spine degeneration, status post discectomy/hemilaminectomy resection and fixation, left rotator teat, status post shoulder arthroscopy with subacromial decompression and rotator cuff repair are "severe" impairments within the meaning of the regulations (Tr. 49). At the third step, the ALJ concluded that Smith does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 (Tr. 50).
At the fourth step, the ALJ found Smith has the residual functional capacity to perform a limited range of light work (Tr. 50). More specifically, the ALJ found that Smith can not frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; can balance frequently, but only occasionally stoop, kneel, and crouch; can never crawl; can frequently reach overhead with the left (non-dominate) upper extremity; and must avoid concentrated exposure to vibrations and hazards (i.e. unprotected heights and moving mechanical parts) (Tr. 50). Relying on testimony from the vocational expert, the ALJ found that Smith is capable of performing past relevant work as a Quality Assurance Monitor (Tr. 55). Because the ALJ found Smith could perform past relevant work, he did not need to proceed to the fifth step.
Smith timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 335-342). The Appeals Council denied Smith's request for review of the ALJ's decision (Tr. 1-4).
Review by the Court is limited to determining whether the findings set forth in the final decision of the Commissioner are supported by "substantial evidence," 42 U.S.C. § 405(g);
As previously mentioned, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-4). At that point, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of the Commissioner's decision). Thus, the Court will be reviewing the decision of the ALJ, not the Appeals Council, and the evidence that was in the administrative record when the ALJ rendered the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981;
The Social Security Act authorizes payment of Disability Insurance Benefits and Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term "disability" is defined as an
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a), 416.905(a);
The Commissioner has promulgated regulations setting forth a five-step sequential evaluation process for evaluating a disability claim. See "Evaluation of disability in general," 20 C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
Here, the ALJ denied Plaintiff's claim at the fourth step.
Smith presents just one argument to this Court: that new and material evidence is available that was not reviewed by the ALJ and is relevant to his claims. Smith argues the new evidence demonstrates the he cannot perform light work and the case should be remanded to the Commissioner for an award of benefits (DN 14 PageID # 614). In response, the Commissioner requests the Court enter judgment affirming the ALJ's decision. The Commissioner argues that Smith has not shown that the evidence is new and material and has failed to demonstrate good cause for not submitting the evidence before the ALJ issued his decision (DN 20 PageID # 628).
The evidence at issue is various medical records generated between February 2017 and October 24, 2018—the date the ALJ issued his ruling. After Smith's claim was denied, he retained new counsel who gathered the evidence and submitted it to the Appeals Council. The Appeals Council considered the evidence, but nevertheless denied Smith's appeal (Tr. 1-4). Smith now requests his case be remanded to the Commissioner pursuant to sentence six of 42 U.S.C. § 405(g). Under sentence six of 42 U.S.C. § 405(g), the Court does not address the correctness of the administrative decision.
Evidence is "new" only if it was "not in existence or available to the claimant at the time of the administrative proceeding."
The Court will first address whether the disputed evidence is new. The ALJ issued his opinion on October 24, 2018. Evidence in existence or available to the claimant on or before this date cannot be considered new. See
None of the "new" evidence is material. Evidence is material if there is a "reasonable probability the ALJ would have reached a different conclusion on the question of disability if he was presented with the new evidence. The first record is a post-surgical follow up with a nurse practitioner for a "wound check." The notes reflect Smith recovered well. The nurse recommended Smith begin reducing his doses of pain medication (Tr. 14-15). The second is an operative report from Dr. Neil Troffkin. The report merely documents the Smith's surgery and states he "tolerated the procedure well. There were no complications" (Tr. 16-17). The third record is notes from a visit to Dr. Briones on December 4, 2018 for chronic pain and medication monitoring (Tr. 18-22). Smith did report pain in his middle and lower back, but that it was alleviated by rest and medication (Tr. 18). Smith's gait was determined normal (Tr. 19). His lumbar spine alignment was diagnosed as normal and he had full range of motion in his spine and hip (Tr. 19). The fifth record is a follow up visit with Marcia Atherton, APRN on November 11, 2018, again for chronic pain and medication management (Tr. 23-28). Again, Smith reported pain that was ameliorated by rest and medication (Tr. 23). Again, Smith presented a normal gait. His lumbar spine alignment was normal, and he had full range of motion in his spine and hip (Tr. 24-25). The final record is a neurological follow up with Dr. Troffkin on October 23, 2018 (Tr. 28). Dr. Troffkin noted no physical changes since previous visits (Tr. 28). He did recommend removing screws from his back and cutting rods from the L2 level to alleviate some leg pain and numbness (Tr. 28). But Smith recovered well from that procedure and reported his leg pain and numbness resolved (Tr. 14-15).
None of these records creates a reasonable probability that the ALJ would have found Smith disabled should he have considered the evidence. The ALJ noted that Smith was receiving very conservative care in the form of pain management. Smith reported he was able to lift and carry up to 25 pounds and had 90% function in his shoulder and was able to reach in all directions without significant restriction (Tr. 51). The ALJ emphasized that Smith has endured "no significant exacerbations" of his conditions and he has "responded very well to his treatment" (Tr. 54). Objective imaging consistently showed stable findings (Tr. 54). The ALJ found Smith's medical impairments could reasonably be expected to cause the alleged symptoms, but not to the extent complained of by Smith. None of the new records dispute that finding, in fact Smith reported "resolved pain and numbness" in his most recent appointment with Dr. Troffkin (Tr. 14-15).
None of the additional evidence submitted by Smith is new and material, therefore sentence six remand must be denied. The Court notes that Smith has also failed to establish good cause for failing to present the evidence to the ALJ before he issued his decision. Smith does mention that the records were created after the hearing date, but before the ALJ issued his decision, and therefore could not have been available at the time of the hearing. But, Smith's previous counsel did not request that the record remain open beyond the hearing for submission of additional evidence. See