Neupane v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SABI NEUPANE,

Plaintiff,

Civil Action 2:20-cv-2306

v.

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff, Sabi Neupane, 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

Social Security Supplemental Security Income benefits (“SSI”). With the consent of the parties

pursuant to 28 U.S.C. § 636(c) (ECF No. 6), this matter is before the Court for consideration of

Plaintiff’s Statement of Errors (ECF No. 13) the Commissioner’s Memorandum in Opposition

(ECF No. 19), Plaintiff’s Reply (ECF No. 20), and the administrative record (ECF No. 12). For

the reasons that follow, Plaintiff’s Statement of Errors is OVERRULED and the Commissioner’s

decision is AFFIRMED.

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I. BACKGROUND

This is Plaintiff’s second application for Supplemental Security Income (“SSI”). Plaintiff

filed her first application for SSI on February 17, 2010, alleging that she had been disabled since

November 1, 2009. (R. at 58.) Administrative Law Judge (“ALJ”) Claudia L. Rosen-Underwood

held a hearing on March 12, 2012, at which Plaintiff, unrepresented by counsel, appeared and

testified with the assistance of a Nepalese interpreter. (R. at 54.) On June 27, 2012, ALJ Rosen-

Underwood issued a decision finding that Plaintiff had been under a disability within the meaning

of the Social Security Act. (R. at 58.)

Plaintiff filed her current application for SSI1 on August 2, 2016, alleging that she had

been disabled since June 19, 2009.2 (R. at 167-176.) This application was denied initially and

upon reconsideration. (R. at 60-101.) Plaintiff again sought a de novo hearing before an

administrative law judge. (R. at 112-114.) ALJ Thomas L. Wang held a hearing on March 6,

2019, at which Plaintiff, who was represented by counsel, appeared and testified, again with the

assistance of an interpreter. (R. at 32-50.) On March 26, 2019, ALJ Wang issued a decision

finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 12-

31.) On March 6, 2020, the Appeals Council denied Plaintiff’s request for a review of the ALJ’s

decision, which became the Commissioner’s final decision. (R. at 1–6.) Plaintiff then timely

commenced the instant action.

1 Plaintiff describes her current claim as one for reinstatement of her benefits. (ECF No. 13 at 5.)

2 “Regardless of the actual or alleged onset date of disability, an SSI claimant is not entitled to

SSI benefits prior to the date the claimant files an SSI application. See 20 C.F.R. § 416.335.”

Snead v. Saul, No. 1:19CV2754, 2020 WL 5097580, at *11 (N.D. Ohio Aug. 10, 2020), report

and recommendation adopted, No. 1:19CV2754, 2020 WL 5096066 (N.D. Ohio Aug. 28, 2020).

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II. HEARING TESTIMONY

A. Plaintiff’s testimony

At her first hearing on March 12, 2012, Plaintiff testified with the assistance of a Nepalese

interpreter, Prem Tamang. (R. at 54.) She testified that she “apparently last worked on a farm in

Bhutan in 1991” but “then spent approximately 18 years in a refugee camp in Katmandu.” (R. at

56.)

At her second hearing on March 6, 2019, Plaintiff again testified with the assistance of an

interpreter, Neal Pradhan. (R. at 34.) When asked by the ALJ why she could not work, Plaintiff

responded that “she was sick.” (R. at 37.) When asked to describe her impairments more

specifically, Plaintiff testified that:

She has a first surgery, and then after the second surgery, then after the third surgery,

also. And she had a problem on the right-hand side part of it, so she’s not really

ready for – she doesn’t feel good very much on the right part of the – right part of

her body. And now she has back pain also. Okay. She does have the back pain,

also, right now, and she does have a very severe headache, also. Plus, because of

the headache she has a little bit of eyes problem, too, and a little bit of headaches.

She has a nose problem, also. Okay. Because of that reasons she is feeling really

dizzy, also. Oh. She has been – she is suffering from the dizziness. It’s been about

two years.

(R. at 38.) In response to questions regarding whether she was taking medication, Plaintiff stated:

So, she cannot specifically say what is that for. Okay. She does have the medicine

for the physical, as the mental. Mostly, the pain, relieve the headaches, back aches,

back pains, and all those kind of stuff.

(Id.) Plaintiff also testified that she had no education at all and had not received any in Nepal or

Bhutan. (R. at 38-39.)

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Upon questioning by her counsel, Plaintiff responded that on a “day-to-day basis,”

Because of the pains, and so on and so forth, back pains and headaches, and so on

and so forth, she cannot perform very well. And there, as well, she has to go into

the emergency, also. And that is the reason she cannot perform very well day-to-

day basis.

(R. at 39.) When asked by counsel to describe how she spends her days, Plaintiff stated:

She hasn’t done anything since she’s been here. She basically lays down and take a

rest. And basically all of her kids brings her the food, and the meals, and everything

right where she’s laying down.

(Id.) Further, she explained that, at night she goes to bed but during the day she lays down

on the couch. (Id.)

Plaintiff further stated that she had received benefits before but did not know why they

stopped. (R. at 39-40.) In his closing statement, counsel clarified that Plaintiff had received

benefits following a “Judge’s decision in 2012” and that he believed her benefits had been

terminated because “a family member had brought a resource into the household” making her

“financially ineligible.” (R. at 48-50.) When asked by counsel to explain whether her problems

have gotten better over time, worse, or stayed the same, Plaintiff testified as follows:

Since back there there’s no difference whenever she has pain, and headaches, and

all those kind of stuff are still the same, and where she had a kidney problem, and

she has the – oh, she did the -- she had a kidney disposal, I would say. They took

the kidney out. Kidney operations. And since, then, also, she had the same problem

on the [INAUDIBLE], also. And there’s no changes before and now.

(R. at 40.)

Plaintiff also explained that:

whenever there’s a problem she goes to the doctor, and takes the medicine and so he

worked out the problem, and then it’s the same thing. Meantime, when the

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medicine’s been taken it solves the problem, but however, when the medicine’s not

there and it comes about.

(Id.)

Plaintiff further noted that she uses an inhaler and has a breathing problem. (R. at

40-41.) Accordingly, her counsel explained that they would allege that “the sinus problems

are, perhaps, a severe impairment, but that there was no “diagnosis for COPD.” (R. at 41.)

B. Vocational Expert Testimony

John R. Finch testified as a vocational expert (“VE”) at the March 6, 2019, administrative

hearing. (R. at 42-48.) The VE testified that a hypothetical individual of Plaintiff’s age,

education, experience, and vocational profile who retained the residual functional capacity

(“RFC”)3 that ALJ Wang ultimately assessed could perform jobs such as cleaner (approximately

300,000 jobs nationally); folder (approximately 50,000 nationally); and garment sorter

(approximately 60,000 jobs nationally). (R. at 43)

III. MEDICAL RECORDS AND OPINION

The medical records appear at pages 352 through 1067 of the Administrative Record and

are discussed below as necessary.

IV. ADMINISTRATIVE DECISIONS

A. First Administrative Decision dated June 27, 2012.

Following a hearing held on March 12, 2012, ALJ Claudia L. Rosen-Underwood issued a

3 A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [his or her] limitations.”

20 C.F.R. § 416.945(a)(1).

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decision on June 27, 2012. (R. at 54-59.) ALJ Rosen-Underwood found that Plaintiff had not

engaged in substantial gainful activity since November 1, 2009, the alleged onset date. (R. at 56.)

The ALJ found that Plaintiff had the severe impairments of status post left radical nephrectomy

for renal cell cancer; polyarthropathy; and osteopenia. (Id.) She further found that Plaintiff did

not have an impairment or combination of impairments that met or medically equaled on of the

listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At step four of

the sequential process, the ALJ stated:

The claimant does not have the residual functional capacity to perform sustained

work-related physical and mental activities in a work setting on a regular and

continuing basis as defined in SSR 96-8p, at any exertional level as defined in 20

CFR 416.967 due to her chronic right-sided pain and numbness.

(Id.)

Further, ALJ Rosen-Underwood found that Plaintiff had no past relevant work, was a

younger individual age 18-44 on the established onset date and was unable to communicate in

English. (R. at 57.) Considering Plaintiff’s age, education, work experience, and residual

functional capacity, the ALJ found that there were no jobs that existed in significant numbers in

the economy that Plaintiff could perform. (R. at 58.) Accordingly, the ALJ found that, based on

her application for SSI filed on February 17, 2010, Plaintiff had been under a disability since

November 1, 2009, the alleged onset date of disability. (Id.) The ALJ further stated, however,

that “[m]edical improvement is expected with appropriate treatment” and “a continuing disability

review is recommended in 12 months.” (R. at 59.)

B. Second Administrative Decision

On March 26, 2019, ALJ Wang issued his decision. (R. at 15-26.) ALJ Wang

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found that Plaintiff had not engaged in substantially gainful activity since July 22, 2016, the

application date. (R. at 18.) The ALJ found that Plaintiff had the severe impairments of

depressive disorder, not otherwise specified, and degenerative disc disease of the lumbar spine

with radiculopathy. (Id.) He further found that Plaintiff did not have an impairment or

combination of impairments that met or medically equaled one of the listed impairments

described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 19.) At step four of the sequential

process, the ALJ set forth Plaintiff’s RFC as follows:

After careful consideration of the entire record, the undersigned finds that the

[Plaintiff] has the residual functional capacity to perform light work as defined in 20

CFR 416.967(b) except she can never climb ladders, ropes or scaffolds, but can

occasionally climb ramps and stairs. She is able to frequently balance and can

occasionally stoop, kneel, crouch, or crawl. Her ability to push is limited as per the

exertional weight limits of light work. She should never engage in commercial

driving or be expose[d] to hazardous moving, or heavy machinery. She is limited to

goal-based work that is measured by end result and not pace work. She should

engage in only simple, routine tasks in a low stress environment, defined as having

only occasional decision making and occasional changes in the work setting. She is

further limited to only occasional interaction with coworkers, supervisors, and the

general public.

(R. at 21.)

ALJ Wang specifically considered the prior ALJ decision. (R. at 17-18.) ALJ Wang

noted that the current application represents a subsequent disability claim with respect to an

unadjudicated period (the period extending from the date of the prior ALJ decision through the

date of his decision), arising under the same titles of the Act as her prior claims. (R. at 17.)

Accordingly, the ALJ acknowledged that Acquiescence Rulings 98-3(6) and 98-4(6) apply. (Id.)

The ALJ then explained that the June 2012 decision is binding on all parties to the hearing

through the date of its issuance and that, in the absence of new and material evidence or changed

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circumstances, as the subsequent ALJ, he was bound by the previous ALJ’s findings. However,

ALJ Wang proceeded to find that there was new and material evidence such that he was not

bound by the previous ALJ’s findings. (R. at 18.)

In making the above determination, the ALJ afforded great weight to the opinions from

the stage agency medical consultants at both the initial and reconsideration levels. (R. at 24.)

Further, he gave partial weight to the opinions of the state agency psychological consultants at the

initial and reconsideration levels. (Id.) Finally, ALJ Wang assigned partial weight to the opinion

of Dr. Reece, a non-treating source who performed a one time, limited and brief examination of

Plaintiff. (Id.)

Relying on the VE’s testimony, the ALJ found that Plaintiff can perform jobs that exist in

significant numbers in the national economy. (R. at 25.) He therefore concluded that Plaintiff

was not disabled under the Social Security Act, since July 22, 2016, the date the application was

filed. (R. at 26.)

V. 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 as ‘more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.’” Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health &

Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. 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)).

VI. ANALYSIS

Plaintiff puts forth two contentions of error:

(1) The ALJ errs in rejecting a prior adjudicator’s disability determination; and

(2) The ALJ’s decision is not supported by substantial evidence and the

Commissioner’s position is not substantially justified.

A. The Prior Disability Determination and Drummond

Plaintiff argues that the ALJ erred in denying her the “benefit of applying res judicata to

her prior award.” (ECF No. 20 at 1.) As the Court understands Plaintiff’s argument, the source

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of the ALJ’s error was his failure to “review even a single medical record or other piece of

substantive evidence from the period relevant to the period of disability previously adjudicated.”

(ECF No. 13 at 7.) Plaintiff’s argument on this issue is not well-taken.

The United States Court of Appeals for the Sixth Circuit previously held that principles

of res judicata apply to both claimants and the Commissioner in Social Security cases.

Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 841–42 (6th Cir. 1997). The Drummond

Court specifically held that absent evidence of “changed circumstances” relating to a claimant’s

condition, “a subsequent ALJ is bound by the findings of a previous ALJ.” Id. at 842. Applying

this approach, the Drummond Court concluded that an ALJ was bound by a previous ALJ’s

determination that the claimant retained the RFC to perform sedentary work because evidence

did not indicate that the claimant’s condition had improved. Id. at 843.

Following Drummond, the Social Security Administration issued AR 98-4(6), which

provides, in pertinent part, as follows:

[W]hen adjudicating a subsequent disability claim with an unadjudicated period

arising under the same title of the Act as the prior claim, adjudicators must adopt

such a finding from the final decision by an ALJ or the Appeals Council on the

prior claim in determining whether the claimant is disabled with respect to the

unadjudicated period unless there is new and material evidence relating to such a

finding or there has been a change in the law, regulations or rulings affecting the

finding or the method for arriving at the finding.

AR 98-4(6), 1998 WL 283902, at *3 (June 1, 1998); see also Blankenship v. Comm’r of Soc.

Sec., 624 F. App’x 419, 425 (6th Cir. 2015) (“Read together, Drummond and Acquiescence

Ruling 98-4(6) clearly establish that a subsequent ALJ is bound by the legal and factual findings

of a prior ALJ unless the claimant presents new and material evidence that there has been either

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a change in the law or a change in the claimant’s condition.”).

Thereafter, the Sixth Circuit clarified its decision in Drummond in Earley v. Comm’r

of Soc. Sec., 893 F.3d 929 (6th Cir. 2018). The Sixth Circuit explained that principles of

“consistency between proceedings and finality with respect to resolved applications” protected

by Drummond “do not prevent the agency from giving a fresh look to a new application

containing new evidence or satisfying a new regulatory threshold that covers a new period of

alleged disability while being mindful of past rulings and the record in prior proceedings.” Id. at

931. The Court went on to specifically reject the Social Security Administration’s argument that

“[i]n reviewing a second application by the same individual, . . . the administrative law judge

should completely ignore earlier findings and applications” because “[f]resh review is not blind

review.” Id. at 934. In short, the Sixth Circuit therefore found that “it is fair for an

administrative law judge to take the view that, absent new and additional evidence, the first

administrative law judge’s findings are a legitimate, albeit not binding, consideration in

reviewing a second application” and that a “ALJ should have another opportunity to review the

application under the correct standard.” Id. at 933–34.

In Section 1-5-4-62 of the Social Security Administration's Hearings, Appeals and

Litigation Law Manual (HALLEX), guidance is provided about how to implement the Drummond

ruling. In relevant part, that guidance provides that a finding of improvement must be based on

evidence that is both “new” and “material.” In this context, “new” simply means evidence not

presented to the prior adjudicator. “Material” evidence is evidence that “both differs from that

presented in the prior claim and warrants a finding different than that made in the decision on the

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prior claim.” Additionally, the ALJ's decision “must refer to the AR [Acquiescence Ruling 98-

4(6)] and include rationale indicating why any new evidence is or is not material to a particular

finding.” Blaney v. Colvin, No. 2:15-CV-2449, 2016 WL 3679983, at *5 (S.D. Ohio July 12,

2016) (citing HALLEX Section 1–5–4–62, at www.ssa.gov/OPHome/hallex/hallex/html.)

As an initial matter, res judicata does not apply to a new application for SSI benefits for a

new period of time. Forman v. Saul, No. 7:19-CV-043-CHB, 2020 WL 5521038, at *5 (E.D. Ky.

Sept. 14, 2020) (citing Earley, 893 F.3d at 933-34). Plaintiff’s most recent application dated July

22, 2016 covers a new period of time. See Snead v. Saul, No. 1:19CV2754, 2020 WL 5097580, at

*11 (N.D. Ohio Aug. 10, 2020), report and recommendation adopted, No. 1:19CV2754, 2020

WL 5096066 (N.D. Ohio Aug. 28, 2020). (“Regardless of the actual or alleged onset date of

disability, an SSI claimant is not entitled to SSI benefits prior to the date the claimant files an SSI

application. See 20 C.F.R. § 416.335.”) To the extent Plaintiff may be arguing otherwise, such

an argument simply is incorrect.

Rather, consistent with Earley, under the specific circumstances of this case, ALJ Wang

was obligated only to undertake a “fresh review” and consider the prior ALJ’s findings and the

earlier record. (ECF No. 20 at 3.) Plaintiff, noting Earley’s caution that “[f]resh review is not

blind review” argues that, because ALJ Wang “fail[ed] to consider even a single portion of the

prior record, he did not even know what that record contained as no exhibit list was affixed to the

prior ALJ’s decision.” (Id.) In short, Plaintiff contends that ALJ Wang undertook a “blind

review.” Plaintiff suggests that, as a result, ALJ Wang could not have “genuinely determined the

presence or absence of new and material evidence.” (Id. at 2.); (see also ECF No. 13 at 7

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(“Plaintiff would also question how the present ALJ could have genuinely or reasonably

contrasted the record before him with that which was before the prior ALJ” because he “did not

review even a single medical record or other piece of substantive evidence from the period

relevant to the period of disability previously adjudicated”). The Court disagrees.

ALJ Wang both acknowledged and discussed the prior ALJ decision. (see, e.g., R. at 17

citing R. at 51-59; R. at 18 citing R. at 56.) Further, he clearly noted his obligations in light of

Drummond, Earley and the relevant Acquiescence Rulings. Moreover, he considered the RFC as

formulated by the previous ALJ but determined that, because there was new and material

evidence in the record, he would not adopt the prior RFC. (R. at 21 citing R. at 56.) Plaintiff’s

argument that ALJ Wang could not reasonably have determined the presence or absence of new

and material evidence is not persuasive.

As the Court understands Plaintiff’s argument, she is contending that, in order to

determine the existence of new and material evidence, ALJ Wang was required to review the

medical records relied upon by the previous ALJ. (See ECF No. 13 at 7 “the current ALJ did not

review even a single medical record or other piece of substantive evidence from the period

relevant to the period of disability previously adjudicated.) Plaintiff cites no authority in support

of this argument. Further, under the specific circumstances of this case, the ALJ had sufficient

information from which to find the existence of such evidence. First, ALJ Wang cited the severe

impairments found by the previous ALJ, including status post radical nephrectomy for renal cell

cancer; polyarthropathy; and osteopenia. (R. at 18 citing R. at 56.) Further, the previous ALJ’s

decision described in some detail the medical evidence of record at that time:

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The medical evidence of record showed the claimant was diagnosed with a left renal

mass and underwent a left radical nephrectomy on November 4, 2009. Ex. 2F. Since

then, she has had consistent treatment for complaints of abdominal pain, numbness,

and right leg pain although the cancer has not recurred. Ex. 5F. She also has a

history of elevated liver function tests. Ex. 6F. The State Agency denied the

claimant’s claim for durational reasons determining that although her condition[]

was “disabling now”, she was responding well to treatment, was recovering well,

and that her condition was not expected to remain severe “enough” for 12 months in

a row. Ex. 4A.

However, the claimant has had persistent right-sided abdominal pain since her

nephrectomy. Ex. 5F-6F; 10F; 20F. This pain radiates to her right leg. Ex. 20F.

This has continued despite the fact that she has undergone extensive evaluations as

well as a tubal ligation, which the doctors told her would not resolve the pain. Ex.

20F; 24F. In fact, the best possibility the treating physicians were able to come up

with to explain her ongoing pain and numbness was a vitamin B12 deficiency or

depression. The claimant was to get vitamin B12 injections, but was noncompliant

and switched to pills in April 2012. Ex. 27F. MRI showed mild splenomegaly and

hepatosteatosis. Ex. 10F. However, there is nothing showing recurrent cancer. She

has taken pain medications, but unfortunately had adverse reactions or became

intolerant. Ex. 6F.

The State agency medical consultants’ physical assessments are given little weight

because evidence received at the hearing level shows that the claimant is more

limited than determined by the State agency consultants. Ex. 2A;4A. Furthermore,

the State Agency consultants did not adequately consider the combined effect of the

claimant’s impairments.

In sum, the above residual functional capacity assessment is supported by the

objective medical evidence and the claimant’s testimony. None of the claimant’s

doctors indicated they doubted the claimant’s alleged symptoms of pain and

numbness. Moreover, there was nothing contradictory in the claimant’s limited

testimony. Although it was suggested by one of the treating physician’s that

depression was contributing significantly to her pain, she was not referred for mental

health treatment. In short, there is nothing affirmative on which to discount her

allegations.

(R. at 57.)

There is no question that the medical information relied upon by ALJ Wang post-dated

the prior ALJ’s decision. (See R. at 257-551; 555-1067.) Further, ALJ Wang’s review of the

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post-2012 records, which he cited as the basis of his decision, shows that he gave various reasons

for reaching a different conclusion as to Plaintiff’s physical and mental limitations in the RFC.

For example, with respect to Plaintiff’s physical impairments, ALJ Wang determined that

Plaintiff’s current medical records did not “contain substantial treatment or documentation of any

of the three previously found impairments.” (R. at 18; see also R. at 22-23.) Specifically, ALJ

Wang noted that, although Plaintiff “has a history of renal cell cancer and nephrectomy, current

records do not indicate that she needed medical treatment or care related to this condition.” (Id.)

Further, he concluded that “current records do not reflect any evidence of polyarthropathy or

osteopenia, and therefore, the undersigned does not find them to be severe impairments for

purposes of this decision.” (Id.) ALJ Wang also plainly considered the new evidence pertaining

to Plaintiff's mental impairments and found that Plaintiff's RFC needed to be updated accordingly

to reflect limitations from a severe depressive order. (R. at 18; see also R. at 23-24.)

Specifically, he noted, citing medical records from 2016 and 2017 that “many health care

providers express[ed] concern that [Plaintiff’s] depression may be having an impact on her

physical health as well.” (R. at 23.)

In sum, all an ALJ is required to do is consider any new evidence in a subsequent

application and make his or her own determinations about a claimant's limitations. Goins v. Saul,

No. CV 19-117-DLB, 2020 WL 1290784, at *2 (E.D. Ky. Mar. 18, 2020). ALJ Wang did so

here. He correctly articulated the governing legal standard and stated that his decision was based

on new evidence. (R. at 18.) Further, based on this new evidence he set forth various reasons for

reaching a different conclusion as to Plaintiff’s physical and mental limitations in the RFC.

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Further, he did so in a way that permits the Court to understand the basis for his ruling. Plaintiff’s

disagreement with the ultimate conclusion reached by the ALJ does not mean that the ALJ did not

conduct a proper Drummond analysis. Accordingly, there is no merit to Plaintiff’s first contention

of error.

B. Substantial evidence supports the ALJ’s decision

Plaintiff also appears to contend broadly that ALJ Wang’s decision is not supported by

substantial evidence. This argument is neither well-articulated nor particularly well-developed

and reasonably could be denied on that basis alone. “‘[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not

sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to

... put flesh on its bones.’” McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997) (quoting

Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm'n, 59 F.3d 284,

293–94 (1st Cir. 1995) (citation omitted)).

Moreover, it seems to hinge, in large part, on Plaintiff’s unsuccessful res judicata argument.

For example, Plaintiff asserts that, despite ALJ Wang’s “implicit finding” to the contrary, current

evidence supports a finding that she remains incapable of sustained work activity due to her

symptoms of chronic right-sided pain and numbness. As Plaintiff explains it, her right-sided pain

and numbness symptoms were the very basis for the prior ALJ’s favorable decision and that it was

error for ALJ Wang to disregard them in formulating an RFC different from the prior ALJ’s. (ECF

No. 13 at 7.) In short, she is contending that, regardless of ALJ Wang’s conclusion regarding the

nature of her severe impairments (and Plaintiff specifically states that she has no objection to ALJ

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Wang’s identification of her severe impairments, see ECF No. 20 at n.1), he was required, under

principles of res judicata to incorporate these symptoms into her RFC. (Id. at 2.) Beyond this, she

maintains that ALJ Wang’s own discussion reveals that her current medical records continue to

provide evidence of polyarthropathy. (Id.)

As discussed above, res judicata is not applicable here and ALJ Wang satisfied his

obligations under Drummond and Earley by giving the evidence a fresh look. Further, as set forth

below, ALJ Wang’s decision is supported by substantial evidence.

ALJ Wang discussed Plaintiff’s medical records in some detail, focusing specifically on

treatment records from Dr. Jonesco, a physician from whom Plaintiff frequently sought treatment,

and Dr. Luke who treated Plaintiff at the OSU Comprehensive Spine Center. (R. at 22-23.) The

ALJ noted that, although Dr. Jonesco’s records indicated that Plaintiff was seen in January 2016

and exhibited tenderness to palpitation in the bilateral thoracic paraspinals and soft tissues, Dr.

Jonesco found that Plaintiff was in no acute distress and referred her to physical therapy. (R. at

22 citing R. 521-524.) The ALJ then cited Plaintiff’s medical records indicating that her pain

always decreased with physical therapy but that Plaintiff did not notice lasting results so that it

ultimately was discontinued. (R. at 22 citing R. at 261, 275.) He also noted Plaintiff’s own

reports that her home exercise program helped to decrease her pain. (Id. citing R. at 306.) The

ALJ went on to discuss later treatment records reflecting Plaintiff’s good response to epidural

injections and Dr. Jonesco’s report upon objective examination that Plaintiff provided

inconsistent effort on strength and muscle testing, he did not observe and atrophy and her straight

leg raising test was negative. (Id. citing R. at 508, 509.)

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In addressing Plaintiff’s treatment records from Dr. Luke, the ALJ specifically cited Dr.

Luke’s comments that he did not believe Plaintiff was physically disabled. (R. at 23 citing R. at

457.)4 Further, the ALJ noted reports that an SI joint injection had resulted in relief to the point

where Plaintiff declined a repeat injection due to the improvement and that medication was

helping her pain. (Id. citing R. at 798, 797.) Finally, the ALJ noted that, in November 2017,

Plaintiff reported to Dr. Jonesco that her pain was stable on meloxicam and gabapentin and later

reported in September 2018 that she takes meloxicam only occasionally when her back pain is

severe. (R. at 23 citing R. at 973-974; 1024.)5

The ALJ concluded his discussion of these records with the following summary:

Overall, the evidence of record regarding the claimant’s physical impairments

document a relatively conservative treatment course. Multiple providers have noted

either inconsistent effort on muscular testing, or that the claimant suffers from

diffuse deconditioning, of that she is not active because of anticipated pain

(B12F/31). Consequently, the undersigned has relied greatly on the available

objective evidence of record and the qualified medical opinions. The medical

evidence, which is reviewed in detail above, does not support the claimant’s

assertions regarding the nature and severity of her subjective symptoms and

functional limitations. That evidence does, however, show that the claimant pain

complaints are inconsistent with the clinical and diagnostic test findings, which are

minimal. To the extent that the claimant alleges functional limitations that are so

severe as to preclude all sustained work activity, the undersigned does not find her

self-reported symptoms and limitations supported in light of the opinions of treating

and non-examining State agency physicians, the degree of medical treatment the

claimant has required, and the record when considered as a whole. As such, the

undersigned [h]as limited the claimant to reduced range of light work, with only

occasional stooping, kneeling, crouching, and crawling. These limitations are

consistent with the objective evidence of record.

(R. at 23.)

4 The ALJ cites to the record at B7F/5. Dr. Luke’s comments are found at B7F/1.

5 The ALJ cites to the record at B17F. These medical records appear in the record at B19F.

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Plaintiff does not dispute the ALJ’s characterization of the medical information.

Rather, she asserts only that other evidence in the record demonstrates continued “chronic

right-sided pain and numbness” and “polyarthropathy.” This is, in essence, nothing more

than an invitation to the Court to reweigh the evidence, which is impermissible. See, e.g.,

Paquette v. Saul, No. 19-12006, 2020 WL 6391311, at *5 (E.D. Mich. July 29, 2020) (citing

DeLong v. Comm'r of Soc. Sec. Admin., 748 F.3d 723, 726 (6th Cir. 2014)). Moreover, “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, 581 F.3d at 406.

Further, this assessment of the medical evidence supports the RFC finding. Plaintiff’s

objection to the RFC, at least in part, is that the ALJ failed to adopt the previous limitation

relating to her chronic right-sided pain and numbness. In articulating Plaintiff’s RFC, ALJ Wang,

however, specifically rejected the previous finding relating to these symptoms as, again, he was

free to do under the circumstances here. (R. at 21.) Plaintiff also argues, however, that ALJ

Wang’s RFC assessment was improper because he found Plaintiff to have a severe mental

impairment – an impairment not identified by the prior ALJ. Plaintiff contends that, in light of

this, ALJ Wang could not find her to be less functionally limited than the previous ALJ. Plaintiff,

however, has not shown that ALJ Wang was required to find a greater degree of functional

limitation or that ALJ Wang’s finding was not supported by substantial evidence. Quire v. Colvin,

No. CV 3: 15-016-DCR, 2015 WL 6871588, at *8 (E.D. Ky. Nov. 6, 2015) (“A mere diagnosis of

an impairment does not render an individual disabled nor does it reveal anything about the

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limitations, if any, it imposes upon an individual.”) (quoting McKenzie v. Comm'r, Soc. Sec., 215

F.3d 1327 (Table), 2000 WL 687680, at *5 (6th Cir. May 19, 2000)).

In sum, in making the RFC assessment, ALJ Wang thoroughly considered Plaintiff’s

medical records, treatment history (and lack of treatment history), the opinion evidence, and

Plaintiff’s own testimony. (R. at 21-24.) A review of the record and ALJ Wang’s decision

demonstrates that his independent determination of Plaintiff’s RFC and his decision not to adopt

the prior ALJ’s assessment is supported by substantial evidence. Accordingly, Plaintiff’s second

contention of error also is without merit.

VII. CONCLUSION

In conclusion, from a review of the record as a whole, the Court concludes that substantial

evidence supports the ALJ’s decision denying benefits. Accordingly, Commissioner of Social

Security’s decision is AFFIRMED and Plaintiff’s Statement of Errors is OVERRULED. The

Clerk is DIRECTED to enter judgment in favor of the Commissioner.

IT IS SO ORDERED.

.

Date: August 9, 2021 /s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

United States Magistrate Judge

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