Biglow v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CRYSTAL BIGLOW, Case No. 1:18-CV-381

Plaintiff, Black, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Crystal Biglow filed this Social Security appeal in order to challenge the

Defendant’s findings that she is not disabled. Without counsel, Plaintiff presents a

handwritten list of corrections, but identifies no reversible errors. For the reasons

explained below, I conclude that the ALJ’s finding of non-disability should be AFFIRMED,

because it is supported by substantial evidence in the administrative record.

I. Summary of Administrative Record

On April 14, 2015, Plaintiff filed an application disability insurance benefits and

supplemental security income. (Tr. 24). In both applications, Plaintiff alleges disability

beginning January 15, 2009. Plaintiff’s claims were denied initially on October 8, 2015.

Thereafter, Plaintiff filed a written request for a hearing in front of an administrative law

judge (ALJ) on December 21, 2015. (Tr. 24). Plaintiff appeared and testified at a hearing

held on October 10, 2017, in Columbus, Ohio. Carl W. Hartung, an impartial vocational

expert, testified at the hearing as well. Plaintiff was informed of her right to representation,

but chose to appear and testify without an attorney or other representative. Plaintiff’s

husband, Larry Biglow, was also present and testified on Plaintiff’s behalf. On February

1, 2018, the ALJ denied Plaintiff’s application. The Appeals Council denied Plaintiff’s

subsequent request for review. Plaintiff now seeks judicial review of the denial of her

application for benefits.

Plaintiff was 39 years old when she submitted the applications. (Tr. 34). Plaintiff

has a high school education, graduated from a trade school, and has only unskilled past

relevant work. (Tr. 34, 53). Plaintiff testified that she lives in a trailer with her husband and

is responsible for caring for a dog and four cats. (Tr. 50).

Based upon the record and testimony presented at the hearing, the ALJ found that

Plaintiff had the following severe impairments: “degenerative disc disease of the lumbar

spine with Grade 1 spondylolisthesis; degenerative disc disease of the cervical spine;

lupus; morbid obesity; osteoarthritis of the bilateral knees; trochanteric bursitis of the left

hip; and bilateral foot spurs.” (Tr. 27). The ALJ concluded that none of Plaintiff’s

impairments alone or in combination met or medically equaled a listed impairment in 20

C.F.R. Part 404, Subp. P, Appendix 1. The ALJ determined that Plaintiff retains the

following residual functional capacity (“RFC”) to perform light work with the following

limitations:

[T]he claimant can stand and walk 4-hours in an 8-hour workday; can occasionally

use foot controls with the bilateral lower extremities; occasionally climb ramps and

stairs; never climb ladders, ropes and scaffolds; occasionally balance;

occasionally stoop; occasionally kneel; occasionally crouch; never crawl; have

only occasional exposure to extreme cold; and never work at unprotected heights.

(Tr. 30).

Based upon the record as a whole including testimony from the vocational expert,

and given Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that

Plaintiff is unable to perform her past relevant work. Nonetheless, there are jobs that

exist in significant numbers in the national economy that she can perform, including such

jobs as addresser, document preparer, and table worker/spotter. Accordingly, the ALJ

determined that Plaintiff is not under disability, as defined in the Social Security

Regulations, and is not entitled to DIB. Id.

The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff,

proceeding pro se, has submitted a handwritten list of complaints. Construed liberally,

the undersigned finds that Plaintiff asserts that the ALJ erred by: (1) improperly

formulating her physical RFC; (2) improperly evaluating her mental impairments, and 3)

failing to find her complaints of pain credible. Upon close analysis, I conclude that none

of the asserted errors require reversal or remand.

II. Analysis

A. Judicial Standard of Review

To be eligible for SSI or DIB a claimant must be under a “disability” within the

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition

of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City

of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory meaning, a

“disability” includes only physical or 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, 476 U.S. at 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).

In considering an application 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 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. Commissioner 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 he or she

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits

must present sufficient evidence to show that, during the relevant time period, he or she

suffered impairment, or combination of impairments, expected to last at least twelve

months, that left him or her unable to perform any job in the national economy. 42 U.S.C.

§ 423(d)(1)(A).

B. The ALJ’s decision is supported by Substantial Evidence

1. Physical RFC

Plaintiff appears to assert that the ALJ’s RFC assessment is not supported by

substantial evidence. As detailed above, the ALJ determined that Plaintiff retained the

RFC to perform light work if limited to standing no more than 4 hours in an 8-hour workday

with postural limitations, avoidance of hazards, occasional use of foot controls, and only

occasional exposure to cold temperatures. Light work involves lifting no more than 20

pounds at a time and 10 pounds frequently and can require standing or walking for a total

of six hours out of an eight-hour workday. 20 C.F.R. § 404.1567(b); SSR 83-10, 1983 WL

31251, *6 (1983). Plaintiff, however, asserts that she is unable to lift 20 lbs and cannot

sit or stand as required to complete an 8-hour workday. Plaintiff also appears to argue

that the ALJ improperly determined that Plaintiff’s assertions are unavailing.

As noted by the Commissioner, the ALJ’s RFC determination properly considered

the objective medical evidence, the opinion evidence and Plaintiff’s testimony. Notably,

the ALJ thoroughly reviewed the relevant objective evidence of Plaintiff’s physical

impairments and undertook a detailed analysis of the medical records in determining

Plaintiff’s limitations due to those impairments. (Tr. 27) (citing 20 C.F.R. § 404.1520(c)).

The ALJ reasonably concluded that the objective evidence did not establish that any of

Plaintiff’s impairments, alone or in combination, rendered her disabled. (Tr. 30-34). With

respect to Plaintiff’s claims of back and neck pain, the ALJ discussed Plaintiff’s treatment

dating back to 2009 and the x-rays and MRIs of her spine. (Tr. 31-32) (citing Exh. 1F (Tr.

290-328); Exh. 2F (Tr. 329-334); Exh. 4F (Tr. 373-74); Exh. 6F (Tr. 428); Exh. 12F (Tr.

509-53); Exh. 17F (Tr. 599); Exh. 18F (Tr. 616- 42); Exh. 19F (Tr. 645, 648); Exh. 20F

(Tr. 675, 721, 725)). The ALJ noted that although imaging showed some degenerative

changes, she maintained a normal gait, negative straight leg raise tests, and no motor or

sensory deficits. (Tr. 31-32) (citing Exh. 4F (Tr. 374); Exh. 6F (Tr. 428); Exh. 9F (Tr. 451-

458); Exh. 13F (Tr. 554-71); Exh. 18F (Tr. 616-42); Exh. 20F (Tr. 654 748)). Regarding

knee pain, the ALJ noted that imaging was normal and her doctors’ assessments showed

that she was doing well aside from knee pain with activity. (Tr. 32) (citing Exh. 9F (Tr.

448); Exh. 17F (Tr. 599-615); Exh. 19F (Tr. 650-52)).

The ALJ also considered that x-rays showed bilateral heel spurs and that Plaintiff

was treated with heel cups, night splints, and physical therapy. (Tr. 33) (citing Exh. 4F

(Tr. 357, 360); Exh. 8F (Tr. 443-47); Exh. 12F (Tr. 541); Exh. 20F (Tr. 686-89); Exh. 22F

(Tr. 752-71)). The ALJ also considered Plaintiff’s bursitis in her left hip. (Tr. 33) (citing

Exh. 22 (Tr. 761)). He noted that she had tenderness and moderately decreased range

of motion but no other deficits and she was treated with physical therapy and prednisone.

(Tr. 33).

The ALJ’s decision further indicates that he properly considered Plaintiff’s lupus,

noting that her doctors described it as “mild” in November 2013 and observed

improvement by June 2014. (Tr. 32) (citing Exh. 10F (Tr. 460-85); Exh. 13F (Tr. 554-71);

Exh. 16F (Tr. 590-98); Exh. 17F (Tr. 599- 615); Exh. 23F (Tr. 772-94)). The ALJ noted

examinations finding that Plaintiff had normal strength, normal gait, and no atrophy. (Tr.

32-33) (citing Exh. 13F (Tr. 565)). At times, she had tenderness in her back, heels, hips,

or knees, but not consistently so. (Tr. 32-33). The ALJ further noted that Dr. Mikulik had

observed that medication had controlled Plaintiff’s joint pain. (Tr. 32) (citing Exh. 13F (Tr.

556)). In addition, he considered that Plaintiff saw a kidney specialist in 2017 who

instructed her on weight loss, diet, and exercise. (Tr. 33) (citing Exh. 21F (Tr. 749-51)).

Furthermore, the ALJ appropriately accorded significant weight to the opinions of

reviewing physicians Dr. David Knierim and Dr. Elizabeth Das because their assessments

were “generally consistent with the medical evidence viewed as a whole and with the

claimant’s own description of her activities.” (Tr. 33); 20 C.F.R. § 404.1527(c) (medical

opinions given greater weight when consistent with record as a whole). Both reviewers

opined that with postural limitations Plaintiff could occasionally lift 20 pounds, frequently

lift 10 pounds, and stand, walk, or sit for 6 out of 8 hours in a workday. (Tr. 33). The ALJ

accepted each of these limitations, but determined that Plaintiff had the following

additional limitations: (1) standing or walking for 4 hours out of an 8-hour day, (2)

occasional use of foot controls with both feet, (3) and only occasional exposure to extreme

cold. (Tr. 33). The ALJ reasonably considered the two medical opinions regarding

Plaintiff’s physical abilities and imposed greater limitations than either source identified.

(Tr. 33); see Thompson v. Astrue, No. 1:10-cv-371, 2011 WL 3861693, *15 (S.D. Ohio

July 28, 2011) (ALJ decision supported by substantial evidence where RFC adequately

accommodated established functional limitations).

As noted by the Commissioner, no treating source opined on Plaintiff’s functional

abilities and no medical source opined that Plaintiff had greater limitations than those

found by the ALJ in the RFC.

In light of the foregoing, the undersigned finds that the ALJ’s RFC assessment

relating to Plaintiff’s physical impairments is supported by substantial evidence.

2. Mental Impairments

Plaintiff also argues that the ALJ failed to properly evaluate her mental

impairments. Specifically, the Plaintiff notes that if her depression worsens, it would affect

her ability to concentrate.

The ALJ considered the relevant evidence and determined that Plaintiff’s

depression was not a severe impairment because it caused no “more than minimal

limitation in [Plaintiff’s] ability to perform basic mental work activities.” (Tr. 27-29) (citing

Exh. 4F (Tr. 345, 351, 388); Exh. 7F (Tr. 434-42); Exh. 11F (Tr. 501); Exh. 12F (Tr. 527,

534, 541); Exh. 20F (Tr. 700, 725); Exh. 22F (Tr. 761)). See also Higgs v. Bowen, 880

F.2d 860, 863 (6th Cir. 1988) (diagnosed condition not necessarily severe impairment).

The record evidence indicated that Plaintiff behaved normally in medical appointments,

maintained strong family relationships, and lived independently with normal activities. (Tr.

28-29). No mental status examinations found significant functional limitations. Id.

In 2015, Nurse Haecker diagnosed Plaintiff with depression and prescribed Celexa

(Tr. 355-57). When Plaintiff reported continued irritability the next month, Nurse Haecker

switched Plaintiff’s antidepressant to Zoloft and recommended that she engage in

counseling and daily walks. (Tr. 351-53). One month later, Plaintiff reported that she was

doing well on her medication and had no difficulty functioning. (Tr. 346). Plaintiff attended

two counseling sessions in 2015. In March, Laura Mullikin, LSW, noted Plaintiff’s

depressed mood and flat affect, but otherwise normal mental status; she assessed a

Global Assessment of Functioning (GAF) score of 61.1 (Tr. 489-507). In May, a second

counselor noted Plaintiff’s mood was euthymic (normal). (Tr. 507).

Moreover, the ALJ properly considered the state agency psychologists’ findings

that opinions that Plaintiff’s mental impairment was not severe and caused no more than

mild functional limitations. (Tr. 34).

With respect to Plaintiff’s depression, the ALJ also gave limited weight to Dr.

Groneck’s opinions.2 (Tr. 33). Dr. Groneck recorded a normal mental status exam, save

for a depressed mood with constricted tears and limited energy. (Tr. 437-38). Based upon

his observations, Dr. Groneck opined that Plaintiff could (1) understand and remember

job instructions, (2) maintain concentration, persistence, and pace, (3) conform to social

expectations in a work setting, and (4) adjust to minor workplace pressures. (Tr. 439). He

opined, however, that should Plaintiff’s depression worsen, she might have difficulty

working. Id. The ALJ accepted Dr. Groneck’s opinions, in part, that Plaintiff’s intelligence,

memory, focus, ability to adjust, attention, concentration, persistence, and pace were all

adequate to function in a working environment. (Tr. 33).

1  A GAF of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in

social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally

functioning pretty well, and has some meaningful interpersonal relationships.

2 In August 2015, Plaintiff saw consultative examining psychologist, Dr. Taylor Groneck. (Tr. 434‐36).

The Commissioner asserts that the ALJ was not required either to find Plaintiff’s

mental impairments “severe” or to adopt more stringent limitations based upon Dr.

Groneck’s statements that Plaintiff’s functional abilities might decline if her depression

worsens. The undersigned agrees. See Bloch v. Richardson, 438 F.2d 1181, 1182 (6th

Cir. 1971) (risk of future heart attack not disabling); see also Quisenberry v. Comm’r of

Soc. Sec., No. 17-2408, 2018 WL 6264566, *11 (6th Cir. Nov. 29, 2018) (proper

procedure when claimant’s condition worsens after final denial of disability benefits is to

file new application).

Furthermore, an ALJ's failure to find an impairment to be severe does not

constitute reversible error where the ALJ determined that a claimant has at least one

other severe impairment and properly considered all of the claimant's impairments, both

severe and non-severe, in determining whether the claimant retained sufficient residual

functional capacity to allow him to perform substantial gainful activity. Maziarz v. Sec'y of

Health & Human Servs., 837 F.2d 240, 244 (6th Cir.1987).

Here, the ALJ found that Plaintiff had the following severe impairments:

“degenerative disc disease of the lumbar spine with Grade 1 spondylolisthesis;

degenerative disc disease of the cervical spine; lupus; morbid obesity; osteoarthritis of

the bilateral knees; trochanteric bursitis of the left hip; and bilateral foot spurs”, and then

proceeded through the five-step sequential analysis. Even if there was an error, then, the

ALJ’s failure to consider any of the three conditions as “severe” at Step 2 of the sequential

analysis will not necessarily require reversal or remand. Notably, the regulations require

that if one “severe” impairment exists, all impairments-severe or otherwise-must be

considered in the remaining steps of the sequential analysis. 20 C.F.R. §§ 404.1523,

416.923, 404.1545(e). Thus, where an ALJ errs in finding a particular impairment “non-

severe” in step two of the analysis, the error is harmless if the ALJ finds at least one

severe impairment and continues to address each impairment in determining the

claimant's RFC. Meadows v. Comm'r of Soc. Sec., No. 1:07cv1010, 2008 WL 4911243,

at *13 (S.D. Ohio 2008) (citing Maziarz v. Secy of Health & Human Servs., 837 F.2d 240,

244 (6th Cir. 1987)). Here, as detailed above, the ALJ's decision indicates that he properly

considered and addressed all of Plaintiff's severe and non-severe impairments in

determining his RFC.

Accordingly, Plaintiff's contention is not well-taken in this regard.

3. Evaluation of Plaintiff’s Subjective Complaints

Plaintiff also claims that the ALJ failed to properly consider her complaints of

disabling pain. In this regard, Plaintiff asserts that the ALJ’s failed to consider Plaintiff’s

complaints of depression and severe back and neck pain.

The ALJ's assessment of symptoms, formerly referred to as the “credibility”

determination in SSR 96-7p, was clarified in SSR 16-3p to remove the word “credibility”

and refocus the ALJ’s attention on the “extent to which the symptoms can reasonably be

accepted as consistent with the objective medical and other evidence in the individual’s

record.” SSR 16-3p, 2017 WL 5180304 at *2 (October 25, 2017) (emphasis added). The

new ruling emphasizes that “our adjudicators will not assess an individual’s overall

character or truthfulness in the manner typically used during an adversarial court

litigation.” See id. at *11. Under SSR 16-3p, an ALJ is to consider all of the evidence in

the record in order to evaluate the limiting effects of a plaintiff’s symptoms, including the

following factors:

1. Daily activities;

2. The location, duration, frequency, and intensity of pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any medication an

individual takes or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual receives or has received for

relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or has used to relieve

pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual's functional limitations and

restrictions due to pain or other symptoms.

Id., 2017 WL 5180304, at *7–8; see also 20 C.F.R. §§ 404.1529(c), 416.929(c) and

former SSR 96–7p.

Despite clarifying the basis for the analysis of subjective complaints and

corresponding elimination of the term “credibility” from the text in order to avoid “character

analysis,” SSR 16-3p was not intended to substantially change existing law. See Banks

v. Com’r of Soc. Sec., Case No. 2:18-cv-38, 2018 WL 6060449 at *5 (S.D. Ohio Nov. 20,

2018) (quoting explicit language in SSR 16-3p stating intention to “clarify” and not to

substantially “change” existing SSR 96-7p), adopted at 2019 WL 187914 (S.D. Ohio Jan.

14, 2019). Thus, it remains the province of the ALJ and not the reviewing court, to assess

the consistency of subjective complaints about the impact of a claimant’s symptoms with

the record as a whole. See generally Rogers v. Com'r, 486 F.3d 234, 247 (6th Cir. 2007).

As stated, the primary distinction between SSR 16-3p and the former SSR 96-7p

is the elimination of the word “credibility” and clarifying that the focus of the evaluation

should be on the “consistency” of subjective complaints with the record as a whole. The

elimination of the word “credibility” from SSR 16-3p is semantically awkward in applying

prior case law, insofar as virtually all of the case law interpreting the former SSR 96-7p

uses the catchphrase “credibility determination.” Nevertheless, the essence of the

regulatory framework remains unchanged. Therefore, courts agree that the prior case

law remains fully applicable to the renamed “consistency determination” under SSR 16-

3p, with few exceptions. See Duty v. Com’r of Soc. Sec., 2018 WL 4442595 at *6 (S.D.

Ohio Sept. 18, 2018) (“existing case law controls to the extent it is consistent with the

clarification of the rules embodied in SSR 16-3p’s clarification.”).

Turning to that case law, an assertion of error in a credibility/consistency

determination requires a particularly strong showing by a plaintiff. Like the ultimate non-

disability determination, the assessment of subjective complaints must be supported by

substantial evidence, but “an ALJ's findings based on the credibility of the applicant are

to be accorded great weight and deference, particularly since an ALJ is charged with the

duty of observing a witness's demeanor and credibility.” Walters v. Com'r of Soc.

Sec., 127 F.3d 525, 531 (6th Cir. 1997). Further, a credibility/consistency determination

cannot be disturbed “absent a compelling reason.” Smith v. Halter, 307 F.3d 377, 379

(6th Cir. 2001). Thus, it is proper for an ALJ to discount the claimant's testimony where

there are inconsistencies and contradictions among the medical records, her testimony,

and other evidence. Warner v. Com'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004).

Here, the ALJ properly set forth several specific reasons in support of his finding

that Plaintiff’s statements regarding the intensity, persistence and limiting effects of her

symptoms were not entirely consistent with the medical evidence and other evidence in

the record. (Tr. 31). See 20 C.F.R. § 416.929 (c)(4) (in evaluating the extent to which

symptoms, such as pain, limit a claimant’s ability to perform work activities, the ALJ will

compare a claimant’s reported symptoms with the objective medical evidence and other

evidence to see if there are conflicts or inconsistencies between the two). As detailed by

the Commissioner, the ALJ reasonably determined that Plaintiff’s complaints of disability

were unsupported by the objective evidence. See 20 C.F.R. § 416.929(c)(2) (considering

objective evidence in weighing claimant’s statements regarding the intensity and

persistence of symptoms). The ALJ also properly considered Plaintiff’s report that

standing aggravated her back pain and accounted for that in the RFC by limiting her to

standing no more than 4 hours per workday, a stricter limitation than offered by any

medical source. (Tr. 30-33); 20 C.F.R. § 404.1529(c)(3)(iii).

The ALJ also considered that Plaintiff’s medications had helped her conditions and

allowed her to work within her RFC. (Tr. 31-32); 20 C.F.R. § 404.1529(c)(3)(iv); see Holt

v. Astrue, No. 1:10- cv-439, 2011 WL 3861891, *6 (S.D. Ohio July 6, 2011) (“an

impairment that is controlled with medication is not disabling”) (citing Casey v. Sec’y of

Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993)). Additionally, the ALJ

reasonably considered that Plaintiff attended two counseling sessions and reported

stopping because it had improved her symptoms. (Tr. 31, 67); 15 C.F.R. §

404.1529(c)(3)(v) (other treatments relevant to subjective symptom assessment);

Dahlinghaus v. Comm’r of Soc. Sec., No. 1:13-cv-447, 2014 WL 12577009, *9 (S.D. Ohio.

Aug. 29, 2014) (ALJ reasonably discounted Plaintiff’s subjective report of symptoms

where evidence showed that treatments had been effective).

The ALJ reasonably took into account Plaintiff’s daily activities, noting that Plaintiff

drove, cared for her pets, picked up trash outside, cooked, shopped, and knitted. (Tr. 30-

31); see 20 C.F.R. § 404.1529(c)(3)(i); Meyer v. Comm’r of Soc. Sec., 2011 WL 1124698,

No. 1:09-cv-814, *11 (S.D. Ohio Feb. 11, 2011) (ALJ’s credibility analysis supported by

substantial evidence where Plaintiff’s daily activities included driving, household chores,

going to the store, and attending appointments).

Based on the foregoing, the undersigned finds that the ALJ's decision adequately

sets forth the reasons for his evaluation of Plaintiff’s subjective complaints. In light of the

ALJ's opportunity to observe Plaintiff's demeanor, the ALJ's finding in this regard is

entitled to deference and should not be discarded lightly. Kirk v. HHS, 667 F.2d 524, 538

(6th Cir. 1981). See also Cruse v. Commissioner, 502 F.3d 532, 542 (6th Cir. 2007);

Walters v. Commissioner, 127 F.3d 525, 531 (6th Cir. 1997); Gaffney v. Bowen, 825 F.2d

98, 101 (6th Cir. 1987). Accordingly, the Court finds substantial evidence supports the

ALJ's evaluation of Plaintiff’s subjective complaints.

4. New Evidence

Plaintiff’s statement of errors attached new medical records that were not reviewed

by the ALJ. Because these records were not presented to the ALJ, they cannot be

considered part of the record for purposes of a substantial evidence review. Foster v.

Halter, 279 F.3d 348, 357 (6th Cir. 2001). To consider these documents, Plaintiff must

establish that she is entitled to a remand under sentence six of 42 U.S.C. § 405(g). A

court can remand for consideration of new evidence only if the plaintiff establishes that

the evidence is both new, 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 different 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).

Here, Plaintiff included with her Statement of Errors the results of an August 2018

MRI of her neck, a December 2018 MRI of her lower back, and a December 2018 sleep

study. Additionally, she submitted to the Appeals Council ten pages of treatment notes

from the Wilmington Physicians Group from March 2016 documenting treatment of her

heel spurs as well as an August 2017 letter from Dr. Mikulik stating only that Plaintiff had

lupus and degenerative disc disease and “[s]he has difficulty standing, prolong [sic]

sitting.” (Tr. 7-16, 92); see also Tr. 37-41 (list of exhibits submitted to ALJ, which does not

include these documents).

As noted by the Commissioner, this evidence is not new or material. The heel spur

records and Dr. Mikulik’s letter—dated March 2016 and August 4, 2017, respectively—

predate the October 2017 hearing; they thus are not “new” and Plaintiff has no good cause

for her failure to present them before the hearing. See Rider, 2018 WL 1250029 at *9

(evidence not “new” if available to claimant at time of hearing and no good cause where

no valid justification for failure to present evidence to ALJ). Furthermore, none of the

records are “material” because there is no reasonable probability that they would have

changed the ALJ’s decision. The newly submitted MRI results were consistent with the

MRI results from January 2011 and December 2015 that the ALJ already considered. (Tr.

311-12; Tr. 31-32).

Accordingly, the undersigned finds that the records do not constitute “new and

material” evidence warranting remand pursuant to Sentence Six of 42 U.S.C. § 405(g).

III. Conclusion and Recommendation

For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s

decision be found to be SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED,

and that this case be CLOSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CRYSTAL BIGLOW, Case No. 1:17-CV-381

Plaintiff, Black, J.

Bowman, M.J.

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 & 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).