IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GENEVA KING,

Plaintiff,

vs. Civil Action 2:11-CV-339

Judge Graham

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

This is an action instituted under the provisions of 42

U.S.C. §405(g) for review of a final decision of the Commissioner of

Social Security denying plaintiff’s application for supplemental

security income. This matter is now before the Court on plaintiff’s

Statement of Specific Errors, Doc. No. 15, and the Commissioner’s

Memorandum in Opposition, Doc. No. 20.

Background and Procedural History

Plaintiff Geneva King filed the current, her third,

application for benefits on February 28, 2007. The application was

denied initially and upon reconsideration and plaintiff requested a de

novo hearing before an administrative law judge.

On August 12, 2009, plaintiff, represented by counsel,

appeared and testified at the administrative hearing, as did Carl

Hartung, who testified as a vocational expert.

In a decision dated September 15, 2009, the administrative

law judge found that plaintiff’s severe physical and mental 

impairments neither meet nor equal a listed impairment and leave her

with a residual functional capacity for a reduced range of light work. 

Although plaintiff is unable to perform any of her past work, the

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administrative law judge relied on the testimony of the vocational

expert to find that plaintiff could nevertheless perform work that

exists in significant numbers in the national economy. The

administrative law judge therefore concluded that plaintiff is not

disabled within the meaning of the Social Security Act. That decision

became the final decision of the Commissioner of Social Security when

the Appeals Counsel declined review on March 18, 2011.

Medical Record before the Administrative Law Judge

Plaintiff was 46 years of age at the time she applied for

benefits. She has a GED and prior work experience as a tagger,

laundry worker, cashier, telemarketer and office helper. 

The medical record documents both physical and mental

impairments. 

Plaintiff has experienced a seizure disorder for a number of

years secondary to a head injury. Dana Vallangeon, M.D., who has

treated plaintiff for the condition, reported to the state agency in

April 2007 that plaintiff has experienced no seizures since 2002. 

A.R. 144. Dr. Vallangeon reported that Tegretol controls the

condition, but that plaintiff is “somewhat noncompliant.” A.R. 145. 

According to Dr. Vallangeon, plaintiff’s “daily ability to function is

not impaired due to seizures. . . .” Id.

In January 2005, plaintiff presented to an emergency room

for complaints of arm pain. X-rays of the cervical spine were normal

and plaintiff was diagnosed with acute cervical radiculopathy. A.R.

141. 

Plaintiff was seen in an emergency room in July 2006

following an assault. A chest x-ray was normal, as were CT scans of

the cervical and thoracic spine and the brain. A.R. 126-28. 

An October 2006 EEG was suspicious, but not definitive, for

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epileptic activity. A.R. 139, 146, 148.

In June 2007, plaintiff presented to an emergency room after

falling off a couch and injuring her left foot. An x-ray confirmed a

Lisfranc fracture and dislocation. A.R. 151, 154. In August of that

year, plaintiff underwent a tarsometatarsal fusion. See A.R. 200.

In September 2007, plaintiff presented to an emergency room

after suffering a seizure. Records indicate that plaintiff had not

been compliant with her medication. A.R. 158. A CT scan of the head

showed no acute intracranial process. A.R. 163.

In January 2008, Scott Lewis Donaldson, Ph.D., performed a

consultative psychological evaluation of plaintiff as the request of

the state agency. On clinical examination, plaintiff’s affect was

flat and her mood was anxious. A.R. 168. She was alert and oriented;

her insight and judgment were intact. A.R. 169. Dr. Donaldson

diagnosed a depressive disorder, nos, and a generalized anxiety

disorder. He placed her Global Assessment of Functioning [“GAF”] at

50-60. According to Dr. Donaldson, plaintiff’s ability understand,

remember and carry out one or two step job instruction was not

impaired; her ability to perform repetitive tasks was moderately

limited by her neurological status, as was her ability to attend to

relevant stimuli. Her ability to relate to supervisors and co-workers

was moderately limited, as was her ability to withstand the stress and

pressures associated with day to day work activity. Dr. Donaldson

recommended psychotherapy, medication, a neuropsychological evaluation

and vocational training. A.R. 170.

In February 2008, a state agency psychologist reviewed the

record and opined that plaintiff’s affective disorder and anxietyrelated disorder did not satisfy Listings 12.04 and 12.06,

respectively. A.R. 171. According to the psychologist, plaintiff

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would be no more than moderately impaired in her ability to engage in

work-related activities. A.R. 181-86. She would be able to

understand, remember and carry out simple instructions and had

sufficient concentration for routine, repetitive tasks. She could

engage in superficial and occasional interactions with others and

could work in settings that do not require adherence to strict time

and production standards. A.R. 187.

That same month, a state agency physician reviewed the

record and opined that plaintiff had no exertional limitations, A.R.

190, although plaintiff had certain postural and environmental

limitations. A.R. 191, 193.

In April 2009, Robert M. Hess, M.D., performed a

consultative neurological evaluation of the plaintiff. On clinical

examination, Dr. Hess noted a significant left antalgic gait and

difficulty heel and toe walking on the left. Deep reflexes were 2+ on

the right and absent in the right knee. Plaintiff had poor foot

invertors, evertors and great toe extensors, which Dr. Hess attributed 

to the Lisfranc surgery. Grasp, manipulation, pinch and fine

coordination were normal. There were no pathological reflexes nor was

there muscle atrophy. Range of motion of the cervical spine was

normal. Range of motion of the right shoulder was slightly reduced. 

Range of motion of the dorsal lumbar spine was limited at 20 degrees

in flexion, 10 degrees in extension and 10 degrees in right and left

lateral bending. Dr. Hess diagnosed idiopathic paroxysmal cerebral

dysrhythmia (seizures), of unknown etiology, bronchial asthma, status

post operative fixation of the left metatarsal fracture, Lisfranc

fracture and possible pre-diabetes. A.R. 210. He recommended another

“neurological consultation evaluation” and testing. A.R. 211.

According to Dr. Hess, plaintiff could frequently lift up to 10 pounds

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and occasionally lift up to 20 pounds. A.R. 216. She could sit for

45 minutes at a time, but for only 1 hour in an 8 hour work day, could

stand for 2 hours at a time, but for only 1 hour in an 8 hour work

day, and could walk for 30 minutes at a time, but for only 1 hour in

an 8 hour work day. A.R. 217. Although Dr. Hess stated that

plaintiff did not require a cane to walk, he also stated that a cane

is medically necessary. A.R. 217. Plaintiff could never reach with

her right hand or operate foot controls with either foot. A.R. 218.

John L. Tilley, Psy.D., performed a consultative

psychological evaluation of plaintiff in June 2009. A.R. 243-48. On

clinical examination, plaintiff’s mood was depressed and her affect

was volatile and labile. She acknowledged some suicidal ideation. 

She was oriented, her insight was adequate and her judgment was not

markedly impaired. A.R. 246. On the Achenbach Adult Self-Report,

“the sum of her scores on the Critical Items was in the clinical

range.” A.R. 247. Dr. Tilley diagnosed major depressive disorder,

recurrent and severe, without psychotic features, and post traumatic

stress disorder, chronic. He placed her current GAF at 40. A.R. 247. 

From a “purely psychological perspective,” Dr. Tilley opined, “the

patient is unemployable.” A.R. 248. Her impairments were expected to

last “9 to 11 months.” Id.; A.R. 250. Dr. Tilley recommended further

treatment. In an assessment of plaintiff’s mental functional

capacity, Dr. Tilley indicated that plaintiff was markedly or

extremely limited in many work-related areas. A.R. 249.

Plaintiff has been treated at the Lower Lights Christian

Health Center. A.R. 204-08, 224-241. Medical center records reflect

complaints of left foot pain, numbness in the right arm, difficulty

breathing and a seizure disorder. A.R. 206. Medical center personnel

have also prescribed medication for plaintiff’s depression. A.R. 205.

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In June 2009, Lynne Toretto, M.D., completed a basic medical

form in which she indicated that plaintiff’s seizure disorder is

controlled by medication and that her status post left foot fusion

limits her ability to walk. Dr. Toretto also noted asthma and

complaints of left arm and hand numbness. A.R. 251. An x-ray of the

left foot showed no loosening of hardware or degenerative joint

disease. Id. According to Dr. Toretto, plaintiff can stand/walk for

a total of 2 hours, for 15 minutes at a time. A.R. 252. Her ability

to sit is unimpaired. Although Dr. Toretto indicated that plaintiff’s

ability to lift and carry are affected, she indicated no weight limits

in this regard. Id. Plaintiff would be moderately limited in her

ability to reach with her left hand and would be extremely limited in

her ability to use her left foot for repetitive foot movements. 

According to Dr. Toretto, plaintiff is “employable.” Id.

Testimony

At the administrative hearing, plaintiff acknowledged that

Tegretol controls her seizures, A.R. 375, and that she does not take

the medication regularly. She explained that the medicine makes her

sleepy or drowsy, A.R. 374, and she has financial problems. A.R. 375.

Plaintiff also testified that she still suffers left foot pain as a

result of her Lisfranc fracture. “I can’t walk too far without feeling

pain or stand too long, and sometimes when I sit then it’s like a

numbness in my legs where I have to – notice I’ve been moving around

from discomfort from sitting around. Like it cuts the circulation off

or something.” A.R. 370. She uses pain cream for relief or elevates

her foot, which sometimes helps. Id. She must walk on the heel of

her left foot. A.R. 381. She can walk three or four blocks before

having to sit. A.R. 372. She experiences numbness in her legs if she

sits too long. Id. She testified that she can lift “a load of

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laundry or a couple bags of groceries.” A.R. 373.

Plaintiff also testified that she sleeps a lot during the

day. Her medication also makes her irritable. A.R. 377. She has

difficulty dealing with others and has lost work because of her poor

ability to interact with others. A.R. 377.

The vocational expert was asked to assume a claimant with

plaintiff’s vocational profile and the residual functional capacity

found by the administrative law judge. In response, the vocational

expert testified that such a claimant could perform sedentary work

that exists in significant numbers in the national economy, including

such jobs as inspector, office machine operator and mail clerk. A.R.

383-84. Asked to assume Dr. Tilley’s mental residual functional

capacity assessment, the vocational expert testified that such a

claimant could not work. A.R. 384-85.

Administrative Decision

In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of a seizure disorder, status

post Lisfranc fracture of the left foot, an affective disorder and an

anxiety disorder. A.R. 16. He relied on the opinion of the reviewing

state agency psychologist to find that plaintiff’s mental impairments

neither meet nor equal a listed impairment. A.R. 18-19. 

The administrative law judge went on to find that plaintiff

has the residual functional capacity to perform a reduced range of

light work, with certain postural limitations. She would also be

precluded from using foot controls with her left leg and from working

around hazardous machinery or unprotected heights. She would be

limited to simple, repetitive tasks that are not fast-paced or present

strict time limitations or high production quotas. She could interact

with co-workers and supervisors for questions and instructions, but

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should generally work alone. She should be limited to working in a

static environment with minimal changes in routine. She would have

difficulty interacting with members of the general public. A.R. 19-

20. In making these findings, the administrative law judge relied on

the reports and opinions of the state agency reviewing physician as

well as plaintiff’s testimony and the medical evidence. He considered

the consultative opinions of Dr. Hess but did not accept those

opinions “to the extent they are inconsistent with” the residual

functional capacity found by the administrative law judge. A.R. 21. 

These extreme limitations are not supported by

the findings on examination and are internally

inconsistent. Notably if the claimant was capable

of standing for two hours at a time, she would

not be limited to just one hour of standing in a

day. There are additional inconsistencies in Dr.

Hess’ findings. For instance, Dr. Hess also

opined that the claimant could never reach

overhead with the right arm, yet on examination

he found that the claimant had normal muscle

strength in the upper extremities. His notes do

show that the claimant had some slight

limitations in range of motion of the right

shoulder, yet Dr. Hess did not diagnose the

claimant with any shoulder impairment and these

findings do not justify a limitation to never

reaching overhead. Dr. Hess also limited the

claimant to only occasional reaching, handling,

fingering, feeling and pushing/pulling with both

upper extremities yet, again, his findings on

examination showed normal grasp, manipulation,

pinch and fine coordination. Moreover, despite

Dr. Hess’ assessed limitations, he found that the

claimant was capable of most daily activities,

including shopping, using public transportation,

and preparing meals. Further it is noted that

Dr. Hess only evaluated the claimant on one

occasion and did not have a longitudinal picture

of the claimant’s conditions. Accordingly, Dr.

Hess’ opinions have been given only little weight

and are accepted only to the extent that they are

consistent with the residual functional capacity

assessed above. 

Id.(citations to record omitted).

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The administrative law judge gave “great weight” to the

mental assessment of the state agency reviewing psychologist. A.R.

22. He considered but declined to accord “any significant weight” to

Dr. Tilley’s consultative assessment:

First, it is noted that Dr. Tilley opined that

the limitations he assessed for the claimant

would only last for eleven months. Further, his

opinions are inconsistent with the evidence from

the claimant’s treating sources which do not show

significant mental impairments. The findings of

the consultative examiner also do not show that

the claimant was as limited as found by Dr.

Tilley. Last, it is noted that Dr. Tilley relied

in part on the claimant’s subjective statements

which . . . have not been found to be fully

credible. 

A.R. 22 (citations to record omitted). 

Although the administrative law judge found that plaintiff’s

residual functional capacity precluded the performance of her past

relevant work, he relied on the testimony of the vocational expert to

find that plaintiff could nevertheless perform work that exists in

significant numbers. A.R. 25. Accordingly, the administrative law

judge concluded that plaintiff is not disabled within the meaning of

the Social Security Act. A.R. 26.

Discussion

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings

of the administrative law judge are supported by substantial evidence

and employed the proper legal standards. Richardson v. Perales, 402

U.S. 389 (1971); 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 as adequate to support a conclusion. 

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk

v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.

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1981). This Court does not try the case de novo, nor does it resolve

conflicts in the evidence or questions of credibility. Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 

In determining the existence of substantial evidence, this

Court must examine the administrative record as a whole. Kirk, 667

F.2d at 536. If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, Tyra v. Sec’y of Health & Human Servs.,

896 F.2d 1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983)), and even if substantial evidence

also supports the opposite conclusion. Longworth, 402 F.3d at 595.

In her Statement of Specific Errors, plaintiff contends that

the administrative law judge erred in failing to give greater weight

to the consultative opinions of Dr. Hess and Dr. Tilley. This Court

disagrees. An administrative law judge is required to consider all

medical opinions and in particular to consider the length of the

treatment relationship, the frequency of examination, the nature and

extent of the relationship, the supportability of the opinion, the

consistency of the opinion with the record as a whole and the

specialization of the medical source in determining the weight to be

given an opinion. 20 C.F.R. § 416.927(d). As noted supra, the

administrative law judge explicitly and exhaustively considered the

opinions of Drs. Hess and Tilley and gave good reasons for his failure

to accord great weight to those opinions. As the administrative law

judge noted, Dr. Hess’s assessment of plaintiff’s ability to perform

work-related functions was internally inconsistent and was not

supported by even his own clinical findings. Dr. Tilley’s opinion did

not, on its face, support a finding of disability likely to last at

least twelve months and was inconsistent with the consultative

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evaluation of Dr. Donaldson. Moreover, the Commissioner is not bound

by an opinion that a claimant is “unemployable.” 20 C.F.R. §

416.927(e)(1). The administrative law judge’s evaluation of the

opinions of Drs. Hess and Tilley applied appropriate standards and

enjoys substantial support in the record. The Court is without

authority to disturb the findings of the administrative law judge in

this regard.

Plaintiff also urges a remand of the case, pursuant to

Sentence 6 of 42 U.S.C. § 405(g), for consideration of new and

material evidence. Plaintiff submitted to the Appeals Council a

number of records not submitted to the administrative law judge. A.R.

257-357. Most, but not all, of those records were generated after the

administrative hearing and relate to plaintiff’s mental impairments

and a right shoulder impairment. Although evidence submitted to the

Appeals Council may not be considered by this Court for purposes of

substantial evidence review of the administrative law judge’s

decision, see Bass v. McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007);

see also Cline v. Comm’r of Social Security, 96 F.3d 146, 148 (6th Cir.

1996); Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993); Casey v.

Secretary of Health & Human Services, 987 F.2d 1230, 1233 (6th Cir.

1993), the Court may order the Commissioner to consider additional

evidence 

but only upon a showing that there is new

evidence which is material and that there is good

cause for the failure to incorporate such

evidence into the record in a prior proceeding; .

. .

42 U.S.C. §405(g). Evidence is “new,” for purposes of this provision,

only if it was “not in existence or available to the claimant at the

time of the administrative proceeding.” Sullivan v. Finkelstein, 496

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U.S. 617, 626 (1990). Evidence is “material” only if there is “a

reasonable probability that the [Commissioner] would have reached a

different disposition of the disability claim if presented with the

new evidence.” Sizemore v. Sec’y of Health & Human Servs., 865 F.2d

709, 711 (6th Cir. 1988); see also Faucher v. Sec’y of Health & Human

Servs., 17 F.3d 171, 174 (6th Cir. 1994). Moreover, the plaintiff must

establish that good cause exists for the failure to incorporate the

new and material evidence into the prior proceeding. Willis v. Sec’y

of Health & Human Servs., 727 F.2d 551, 554 (6th Cir. 1984). A

plaintiff may establish good cause by demonstrating a reasonable

justification for the failure to acquire and present the evidence at

the administrative hearing. Foster v. Halter, 279 F.3d 348, 357 (6th

Cir. 2001). This standard applies even to evidence submitted for the

first time to the Appeals Council. Id.; Cline v. Comm’r of Social

Security, 96 F.3d 146, 148 (6th Cir. 1996). 

This Court concludes that most of the evidence submitted by

plaintiff to the Appeals Council qualifies as the new and material

evidence that warrants a Sentence 6 remand. With the exception of the

June 2009 records from Netcare, A.R. 258-63, all the other records

were generated after the administrative hearing in this case. The

evidence reflected in those records is therefore new and plaintiff has

good cause for her failure to acquire and present that evidence at the

administrative hearing. Moreover, many of the records relate to

plaintiff’s affective disorder and anxiety disorder which the

administrative law judge included among plaintiff’s severe

impairments. Furthermore, the February 2010 MRI of plaintiff’s right

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shoulder, A.R. 348-57, may provide some documentation of plaintiff’s

complaints of right shoulder pain, which the administrative law judge

acknowledged but did not include among plaintiff’s severe impairments. 

See A.R. 16. Thus, the new evidence is material because there is a

reasonable probability that the Commissioner would have reached a

different result had the records been before the administrative law

judge. 

It is therefore RECOMMENDED that the action be remanded to

the Commissioner, pursuant to Sentence 6 of 42 U.S.C. § 405(g), for

review of new and material evidence.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14) days,

file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the basis

for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after

being served with a copy thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the right

to de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

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 August 1, 2012 United States Magistrate Judge

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