1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ARIEL UMARA, 

 Plaintiff, 

 vs. Civil Action 2:12-CV-1119 

 Judge Smith 

 Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

I. Background 

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 applications for a period of disability, disability 

insurance benefits, and supplemental security income. This matter is now 

before the Court on plaintiff’s Fact Sheet and Statement of Specific Errors; 

Motion for Remand (“Statement of Errors”), Doc. No. 18, and the 

Commissioner’s Opposition to Plaintiff’s Statement of Errors, Doc. No. 23. 

Plaintiff has not filed a reply. 

 Plaintiff Ariel Umara filed his applications for benefits on April 

17, 2009, alleging that he has been disabled since August 1, 2006. See

PAGEID 198-206. The applications were denied initially and upon 

reconsideration, and plaintiff requested a de novo hearing before an 

administrative law judge. 

 Following an administrative hearing, at which plaintiff was 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 1 of 11 PAGEID #: <pageID>
2

represented by counsel, the administrative law judge issued a written 

decision concluding that plaintiff was not disabled from August 1, 2006, 

through the date of the administrative decision. PAGEID 91-92. That 

decision became the final decision of the Commissioner of Social Security 

when the Appeals Council declined review on October 4, 2012. PAGEID 70. 

 Plaintiff was 54 years of age on the date of the administrative 

decision. See PAGEID 92, 198. He has at least a high school education, 

is able to communicate in English, and has past relevant work as a claims 

processor. PAGEID 89-90, 124. Plaintiff was last insured for disability 

insurance benefits on June 30, 2010. PAGEID 82. He has not engaged in 

substantial gainful activity since August 1, 2006, his alleged date of onset 

of disability. Id. 

II. Administrative Hearing and Decision 

 The administrative hearing was held on June 30, 2011. PAGEID 98. 

During opening statement, plaintiff’s counsel noted that “this case 

involves the residuals of a stroke that was suffered by Mr. Umara back 

several years ago . . . [in] 2004/2005.” PAGEID 103. Counsel indicated 

that a consultative examiner had recommended on November 4, 2009 that “it 

would be beneficial to have input from Mr. Umara’s treating physicians or 

possibly neurology consult for review of old medical history -– old medical 

records.” Id. Counsel also referred to a November 10, 2006 MRI of the 

brain which indicated that “there was a definite positive finding of small 

vessel ischemia,” and “some question about whether there was an infarct 

or not in the brain.” PAGEID 103-04. Counsel then stated that plaintiff’s 

family doctor was “going to send him for a neurological examination or a 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 2 of 11 PAGEID #: <pageID>
3

referral to a neurologist” “in the next 30 days.” PAGEID 104. Based on 

this representation, the administrative law judge agreed to keep the record 

open until July 31, 2011: 

ALJ: Okay. All right. Thank you, counsel. If that neuro exam 

is going to take place in the next 30 days, it could be very 

beneficial so I think I’m going to put the case in post and we’ll 

keep it open . . . [until] July 31 and if at that point, you’ve 

gotten it, get it to me. If you don’t have it yet but the exam 

has occurred, just call or send in a fax letting us know what’s 

going on with that -- 

ATTY: Yes, sir. 

ALJ: -- and we’ll adjust accordingly, you know, if it’s been 

postponed, it’s still two months to go, well, we’ll have to 

decide what to do. If it’s something that we just need another 

week or two, so be it. But I could be very – 

ATTY: I will keep your office advised. 

PAGEID 105. 

 The neurological consultative examination did not occur within the 

ensuing 30 days. On July 28, 2011, plaintiff’s counsel advised the 

administrative law judge that the consult had been scheduled for September 

8, 2011 and asked that the record continue to be held open to allow plaintiff 

to obtain records “‘or send the claimant for a consultative neurological 

examination.’” PAGEID 79. Counsel did not specify the length of time 

requested. In response, the administrative law judge denied that request, 

explaining: 

On July 28, 2011, [plaintiff’s counsel] provided written 

correspondence to my attention that the claimant was not 

scheduled to see any neurologist until September 8, 2011 and, 

consequently, requested that I hold the record open for an 

additional (indefinite) period so that he could “get his records 

and/or send the claimant for a consultative neurological 

examination” (Ex. 13B). I supplied a written response to 

[plaintiff’s counsel] that same day, with carbon copy sent to 

the claimant, that I would not keep the file open awaiting the 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 3 of 11 PAGEID #: <pageID>
4

upcoming neurology visit in September 2011 and advised that I 

will proceed in rendering my decision based on the available 

evidence (Ex. 14B). Nevertheless, I did indicate that I would 

certainly allow submission of a neurology consultation report 

should it be received prior to my issuing a decision. It now 

being nearly two business weeks since the date of the July 28th

correspondence, I see no further good case for delay. 

My reasoning here is that the thirty-day period after the 

claimant’s June 30th hearing was an ample window of time within 

which the claimant could have attended a consultative 

neurological examination at the behest of his attorney. 

Whatever the cause for the delay to the scheduling of the 

claimant’s neurological examination as referred by his family 

physician until September 8, 2011, I do not find a showing of 

good cause has been made for holding the record open for such 

an extended period of time. 

PAGEID 79-80. 

In his written decision, which was issued on August 12, 2011, the 

administrative law judge found that plaintiff’s severe impairments consist 

of “umbilical hernia, status post right hemispheric cerebrovascular 

accident (‘CVA’), chronic pain, and cognitive disorder, not otherwise 

specified.” PAGEID 82. The administrative law judge also found that 

plaintiff’s impairments neither meet nor equal a listed impairment and 

leave plaintiff with the residual functional capacity (“RFC”) for medium 

work, 

except that he is further limited as follows: 

-Can only occasionally balance; 

-Can never climb ladders, ropes or scaffolds; 

-Should avoid all exposure to hazards such as unprotected 

heights or dangerous machinery, and should engage in no 

commercial driving; and 

-Is further limited to tasks that are simple, repetitive, and 

routine; in a relatively static environment with few changes 

that can be explained to him; and having no fast pace and/or 

high production quotas (such as is involved in piecemeal work). 

PAGEID 84. Although this RFC precluded plaintiff’s past relevant work, 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 4 of 11 PAGEID #: <pageID>
5

the administrative law judge relied on the testimony of the vocational 

expert to find that plaintiff is able to perform a significant number of 

jobs in the national economy, including such jobs as packager, cafeteria 

attendant, and mail clerk. PAGEID 89-91. Accordingly, the 

administrative law judge concluded that plaintiff was not disabled within 

the meaning of the Social Security Act from August 1, 2006, through the 

date of the administrative law judge’s decision. PAGEID 91-92. 

VI. 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 more than a scintilla of evidence but less than 

a preponderance; it is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion. See Buxton v. Haler, 246 F.3d 

762, 772 (6th Cir. 2001); Kirk v. Sec’y of Health & Human Servs., 667 F.2d 

524, 535 (6th Cir. 1981). This Court does not try the case de novo, nor 

does it resolve conflicts in the evidence or questions of credibility. See 

Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 

1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 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, 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 5 of 11 PAGEID #: <pageID>
6

see 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 his Statement of Errors, plaintiff contends that the 

administrative law judge abused his discretion when he kept the record open 

for only 1 month after the June 30, 2011 administrative hearing and refused 

plaintiff’s request to continue to keep the record open to permit plaintiff 

to arrange additional medical evaluations and submit additional medical 

evidence. Statement of Errors, pp. 3-5. Plaintiff also submits medical 

records dated September, October, and November 2011, see id. at Exhibits 

1-3, that, plaintiff argues, would have “made a difference” in the 

administrative law judge’s decision. Id. at p. 5. Specifically, 

plaintiff argues that, “[w]hile the records speak for themselves, the 

neuropsychologist finds [plaintiff] disabled, with all of the necessary 

tests and supporting data to support that conclusion, and the reader of 

the MRI finds ‘moderate to severe chronic white matter changes’ and 

‘advanced atrophy for age.’” Id. Accordingly, plaintiff asks that this 

Court award plaintiff benefits or, alternatively, “remand[] to the 

Defendant Commissioner.” Id. at p. 7.1

 

The determination of whether an administrative law judge has failed 

to fully develop the record is made on a case-by-case basis by examining 

the record. Lashley v. Sec'y of Health & Human Servs., 708 F.2d 1048, 1051–

52 (6th Cir. 1983) (“There is no bright line test for determining when the 

administrative law judge has assumed the role of counsel or failed to fully 

 

1 It is unclear whether plaintiff’s request for remand is grounded in Sentence 4 

of 42 U.S.C. § 405(g) or Sentence 6 of the statute. 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 6 of 11 PAGEID #: <pageID>
7

develop the record.”). “As long as there is sufficient evidence in the 

record for him to make a decision regarding the claimant's disability, it 

is within the discretion of an ALJ to close the record.” Penn v. Comm’r 

of Soc. Sec., No. 1:10CV1885, 2012 WL 646057 (N.D. Ohio Feb. 28, 2012) 

(citing Dotson v. Dotson Coal Co., 893 F.2d 1334 (6th Cir. 1990)). See 

also Brown v. Comm’r of Soc. Sec., 4:11CV1084, 2012 WL 1885132, at *6 (N.D. 

Ohio May 23, 2012); Kendall v. Comm’r of Soc. Sec., No. 2:10-263-DCR, 2011 

WL 4388794, at *5 (E.D. Ky. Sept. 20, 2011); Pugh v. Comm’r of Soc. Sec., 

No. 1:09-CV-112, 2010 WL 1544271, at *9 (E.D. Tenn. Feb. 17, 2000) (“An 

ALJ's decision not to hold the record open for further evidence is reviewed 

for an abuse of discretion.”) (citing Hayes v. Comm'r of Soc. Sec., 357 

F. App’x 672 (6th Cir. 2009)). However, “[w]here there are obvious gaps 

in the record, the ALJ has the duty to develop the administrative record 

with respect to the missing evidence.” Kendall, 2011 WL 4388794 at *5 

(citing Sims v. Apfel, 530 U.S. 103, 110–11 (2000) (“Social Security 

proceedings are inquisitorial rather than adversarial. It is the ALJ's 

duty to investigate facts and develop the arguments both for and against 

granting benefits.”)). 

 The Court concludes that the administrative law judge did not abuse 

his discretion when he kept the record open for only 43 days after the 

administrative hearing. Plaintiff cites to no authority for the proposition 

that an administrative law judge’s failure to hold the record open for a 

longer period of time is an abuse of discretion. Plaintiff does not argue 

that there was insufficient evidence in the record upon which the 

administrative law judge could base a decision, see Penn, 2012 WL 646057 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 7 of 11 PAGEID #: <pageID>
8

at *8, or that there were “obvious gaps in the record” that created a “duty 

to develop the administrative record with respect to [] missing evidence.” 

See Kendall, 2011 WL 4388794 at *5-6 (citing Sims, 530 U.S. at 110-11). 

Furthermore, because plaintiff was represented by counsel, the 

administrative law judge was not charged with a “heightened” or “special” 

duty to develop the record. See Wilson v. Comm’r of Soc. Sec., 280 F. App’x 

456, 459 (6th Cir. 2008) (finding that the administrative law judge has 

a “special, heightened duty to develop the record” when a claimant is “(1) 

without counsel, (2) incapable of presenting an effective case, and (3) 

unfamiliar with hearing procedures”) (citing Lashley, 708 F.2d at 

1051-52)). 

 The administrative law judge initially held the record open for one 

month after the administrative hearing to permit plaintiff to undergo a 

neurological examination that plaintiff’s counsel represented would be 

completed within 30 days of the hearing. PAGEID 104-05. The 

administrative law judge also expressed a willingness to consider any 

medical records submitted after July 31, 2011 and before the administrative 

decision, which was issued on August 12, 2011. PAGEID 79-80. Plaintiff 

argues that the administrative law judge erred in not holding the record 

open even longer, apparently merely because a consultative examiner had 

recommended a neurological consult more than a year earlier. Plaintiff 

offers no explanation why he waited until the very eve of the June 30, 2011 

administrative hearing (or perhaps beyond) to schedule the recommended 

consultation, nor does he explain why that examination was not completed 

within the month after the administrative hearing – or even prior to the 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 8 of 11 PAGEID #: <pageID>
9

issuance of the administrative decision on August 12, 2011. See PAGEID

188. The Court also notes that plaintiff’s July 28, 2011 request that the 

record continue to be kept open proposed no date by which the record should 

be closed, see PAGEID 187, and that the medical records submitted by 

plaintiff were generated months after the administrative law judge issued 

his decision. 

 It is plaintiff’s burden to establish disability; he must present 

evidence sufficiently complete and detailed to enable the Commissioner to 

make a disability determination. See 20 C.F.R. §§ 404.1512(a), 404.1514, 

416.912, 416.913(d); Carrelli v. Comm'r Of Soc. Sec., 390 F. App'x 429, 

434 (6th Cir. 2010) (“The plaintiff has the ultimate burden to establish 

an entitlement to benefits by proving the existence of a disability . . 

. .”) (quoting Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 

(6th Cir. 1992)). It was plaintiff’s failure to carry this burden – and 

not the administrative law judge’s refusal to keep the record open 

indefinitely – that resulted in an administrative record that did not 

include the results of the neurological examination and MRI. 

 In short, the Court finds no error in the administrative law judge’s 

decision to close the record one month after the administrative hearing. 

 The Court also finds that, to the extent plaintiff’s Statement of 

Errors can be interpreted to seek remand under Sentence 6 of 42 U.S.C. § 

405(g), that request is without merit. A court may, under certain 

circumstances, remand a case under Sentence 6 of 42 U.S.C. § 405(g) for 

further administrative proceedings in light of new and material evidence. 

Id. 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 9 of 11 PAGEID #: <pageID>
10

The court . . . may at any time order additional evidence to 

be taken before the Commissioner of Social Security, 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). A plaintiff has the burden under this provision to 

demonstrate that the additional evidence presented is both “new”2 and 

“material”3

 and that there is “good cause”4 for the failure to present this 

evidence to the administrative law judge. See Hollon ex rel. Hollon v. 

Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006). 

 As noted supra, plaintiff has now submitted medical records generated 

in September, October, and November 2011. Statement of Errors, Exhibits 

1-3. Assuming that the evidence submitted by plaintiff is new, because it 

was not in existence at the time the administrative decision was issued, 

and that plaintiff actually seeks a Sentence 6 order of remand, plaintiff 

has not established good cause for his failure to acquire the evidence in 

time to present it to the administrative law judge. Remand is therefore 

not warranted under even Sentence 6 of 42 U.S.C. § 405(g).5

Plaintiff has not shown that the administrative law judge abused his 

discretion in closing the record one month after the administrative hearing 

or that remand is warranted under Sentence 6 of 42 U.S.C. § 405(g). It 

 

2

 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 U.S. 617, 626 (1990). 3

 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). 4

 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). 5 The Court expresses no opinion as to whether a new application for benefits, based 

on these additional medical records, would be appropriate. 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 10 of 11 PAGEID #: <pageID>
11

is therefore RECOMMENDED that the decision of the Commissioner be AFFIRMED 

and that this action be DISMISSED. 

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); Fed. R. Civ. P. 72(b). Response to objections must be filed 

within fourteen (14) days after being served with a copy thereof. Fed. 

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 Fed’n of Teachers, Local 231 

etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 

947 (6th Cir. 1981). 

November 12, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:12-cv-01119-GCS-NMK Doc #: 24 Filed: 11/12/13 Page: 11 of 11 PAGEID #: <pageID>