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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

STEPHANIE GRAY, Case No. 1:17-cv-666

Dlott, J.

Bowman, M.J.

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Stephanie Gray filed this Social Security appeal in order to challenge the 

Defendant’s denial of her disability claim. See 42 U.S.C. §405(g). Proceeding pro se, 

Plaintiff presents a single claim of error. For the reasons explained below, I conclude that 

the ALJ’s finding of non-disability is supported by substantial evidence and should be 

AFFIRMED.

I. Summary of Administrative Record

In December 2013, Plaintiff applied for disability insurance benefits (“DIB”) and for 

supplemental security income (“SSI”), alleging disability as of October 18, 2010 primarily 

based upon a mental disorder, although Plaintiff also relied on alleged physical 

impairments related to hepatitis B and sickle cell disorder. After her applications were 

denied initially and upon reconsideration, Plaintiff timely requested an evidentiary hearing 

before an administrative law judge (“ALJ”). On April 26, 2016, ALJ Giuffre held a hearing 

at which Plaintiff appeared pro se, after waiving her right to appear with a representative. 

(Tr. 13, 242; see also generally Tr. 87-117). At the hearing, the ALJ notified Plaintiff that 

her records from Talbert House were not up to date, and Plaintiff executed releases so 
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that the ALJ could obtain the most recent records. (Tr. 29, 93). At the time of the hearing, 

both Plaintiff and a vocational expert testified. On June 21, 2016, noting that she had 

held the administrative record open for a number of weeks but still had not received

additional records, the ALJ issued an adverse written decision, denying Plaintiff’s claim 

of disability. 

Within a day or two of that adverse decision, Plaintiff obtained an additional 58 

pages of Talbert House records. (Tr. 6, 31). On August 16, 2016, Plaintiff, through her 

case manager, timely requested additional review from the Appeals Council, relying in 

part on a reference to the recently obtained records. (Tr. 243). On September 6, 2016, 

the Appeals Council granted Plaintiff’s request for more time to submit new information 

and directed her to send the additional information “within 25 days of the date of this 

letter,” or by October 1, 2016. Within the requested time, Plaintiff submitted the additional 

58 pages of Talbert House records to the Appeals Council.

By letter dated July 20, 2017, the Appeals Counsel acknowledged receipt of the 

additional pages and explained that it would consider the post-hearing evidence only if 

Plaintiff could show it was “new, material, and relates to the period on or before the date 

of the hearing decision.” (Tr. 6). The Appeals Council indicated that Plaintiff could send 

a statement in order to show “there is a reasonable probability that the additional evidence 

would change the outcome of the decision,” and “good cause for why you missed 

informing us about or submitting [the new evidence] earlier.” (Id.) The Appeals Council 

informed Plaintiff that she “must” send any statement or new information within 30 days 

of the date of the July 20, 2017 letter, and that they would “not allow more time to send 

information except for very good reasons.” (Id.) There is no indication that Plaintiff sent 
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any further explanation to show “good cause” for her failure to earlier submit the 

referenced records, or that the records were new and material.

On September 6, 2017, after considering Plaintiff’s request for additional review 

including review of the recently obtained Talbert House records, the Appeals Council 

denied further review. The Appeals Council found “no reason under our rules to review” 

the ALJ’s decision, specifically determining that the additional records were not “new” or 

“material” under relevant regulations. (Tr. 1-2). The Appeals Council specifically found 

that Plaintiff’s submission of an additional 58 pages of treatment notes from Talbert House 

did “not show a reasonable probability that it would change the outcome of the decision,” 

and therefore declined to further consider that evidence. (Tr. 2). 

The Appeals Council’s denial of further review effectively rendered the ALJ’s 

decision as the final decision of the Commissioner. Thereafter, Plaintiff timely filed a 

judicial appeal of that decision in this Court.

Plaintiff was 42 years old on the date of the onset of her alleged disability, and was 

47 years old, still a “younger individual” for purposes of social security, on the date that 

the ALJ issued the adverse decision. She reported several years of college and has an 

associate’s degree as a medical assistant, although she never used her degree. (Tr. 94). 

Instead, she previously performed semi-skilled work as a remote agent/call center clerk, 

as well as skilled work as an officer manager, as a retail manager, and as a copier 

repairer. She also performed unskilled work as a cashier. (Tr. 22). All of her prior work 

was performed at the light or sedentary level. 

The ALJ determined that Plaintiff suffers from a severe impairment of an affective 

disorder, as well as non-severe impairments of hepatitis B and chronic anemia with some 

fatigue, but no shortness of breath or dizziness. (Tr. 16). However, the ALJ determined 
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that Plaintiff did not meet or equal any listing in 20 C.F.R. Part 404, Subpart P, Appendix 

1, such that Plaintiff was entitled to a presumption of disability. Instead, the ALJ found

that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of 

work at all exertional levels, with only the following nonexertional restrictions:

[S]he has the ability to complete simple to detailed tasks in a setting that 

does not have a need for close sustained focus/concentration or sustained 

fast pace. She has the capacity for superficial contact with co-workers and 

the public. She has the capacity to work in a routine environment with 

infrequent changes.

(Tr. 18). 

Based on the testimony of a vocational expert, the ALJ determined that Plaintiff 

remains capable of performing three of her prior positions: specifically, as a remote 

agent/call center clerk, cashier, and copier repairer. (Tr. 21). Therefore, the ALJ 

concluded that Plaintiff was not under a disability. (Tr. 22).

Plaintiff argues that the ALJ erred when she indicated that she would obtain the 

most recent treatment notes at the April 26, 2016 hearing, but then rendered the 

unfavorable decision prior to receipt and review of those records. Plaintiff posits that if 

the ALJ had reviewed her most recent treatment notes, she would have received benefits. 

(Doc. 8). In part because this Court’s review of an ALJ’s decision is limited to the record 

presented before the ALJ, and in part because this Court agrees with the Appeals Council 

that the tendered evidence is neither new nor material, I find no error and no basis for 

reversal or remand.

II. Analysis

A. Judicial Standard of Review

To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C. 

§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or 
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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 v. City 

of New York, 476 U.S. 467, 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). 

Whether considering an application for supplemental security income or 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 
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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. Com’r 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 she is 

entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must 

present sufficient evidence to show that, during the relevant time period, she suffered an

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

left her unable to perform any job. 42 U.S.C. § 423(d)(1)(A).

B. Plaintiff’s Claim

Plaintiff’s claim, construed liberally, is that substantial evidence does not support 

the ALJ’s adverse disability decision. Plaintiff believes that if the ALJ had considered the 

most recent 58 pages of records, encompassing her treatment between October 28, 2015

and June 17, 2016, the ALJ would have found her to be disabled. She urges this Court 

to consider those records in favor of reversal of the ALJ’s decision. 

1. New Evidence Cannot Be Considered Under Sentence Four

This Court cannot consider evidence submitted after the ALJ issued her decision 

to determine whether substantial evidence at the time, to uphold the ALJ’s decision. See 

Cline v. Com’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996); Casey v. Sec’y of HHS, 987 

F.2d 1230, 1233 (6th Cir. 1993); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993). 

Based upon the evidence cited by the ALJ, including medical records and medical opinion 
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evidence that she discussed, I conclude that substantial evidence exists to support her

determination.

Relevant to the review of Plaintiff’s “substantial evidence” challenge, the ALJ found 

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

symptoms to be “not entirely consistent with the medical evidence and other evidence in 

the record....[and her] allegations [to be] out of proportion to the medical evidence and 

other evidence.” (Tr. 19). In fact, although Plaintiff initially claimed some physical 

impairments, there is no evidence of any severe physical impairment. In this appeal, 

Plaintiff does not challenge the ALJ’s determination that she can perform work at all 

exertional levels.

The ALJ also pointed out numerous inconsistencies between Plaintiff’s subjective 

complaints and more objective evidence concerning her mental limitations. (See e.g., Tr. 

20-21). For example, although Plaintiff alleges a disability onset date of October 18, 2010, 

she did not appear to have sought any mental health treatment until more than three 

years after that date; she was first seen for depression at Centerpoint Health on 

November 26, 2013 (Id). Plaintiff started outpatient counseling with a social worker at 

that facility on December 10, 2013. On January 13, 2014, she returned to Centerpoint, 

now called Talbert House, and was prescribed Prozac. In March 2014 she was diagnosed 

with bipolar disorder and her medication was changed. 

The ALJ discussed multiple treatment records from Talbert House dating from the 

beginning of her treatment through October 27, 2015, and overall noted that the course 

of Plaintiff’s treatment at Talbert House and elsewhere was “not consistent with disabling 

mental impairment.” (Tr. 20). Plaintiff has never been psychiatrically hospitalized or 

required Emergency Department care. While she has received regular treatment at 
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Talbert House, she has never “required or received intensive outpatient mental health 

services,” and her thought process, speech, recent and remote memory, and attention 

and concentration have all been found to be “normal.” (Tr. 20).

In addition to the mental health treatment records, the ALJ gave “great weight” to 

a March 20, 2014 psychological consultative examination by Jennifer Stoeckel, Ph.D. Dr. 

Stoeckel diagnosed depressive disorder not otherwise specified and assigned a global 

assessment of functioning (“GAF”) score of 59, reflective of moderate symptoms. (Tr. 

20). Regarding work-related mental abilities, Dr. Stoeckel opined that Plaintiff appeared 

capable of performing simple tasks and could understand and apply instructions in a work 

setting consistent with low average to average intellectual abilities. (Tr. 489). In addition, 

Dr. Stoeckel believed that Plaintiff’s mental health symptoms secondary to her depression 

“may interfere with her ability to respond appropriately to the public or constructive 

criticism,” and “[u]nder stress, she is likely to develop increased depressive 

symptomatology, isolation, and withdrawal. (Tr. 489; see also Tr. 20). 

Dr. Stoeckel’s opinions are consistent with the RFC as formulated by the ALJ, as 

are the opinions of two state agency reviewing psychologists, whose opinions the ALJ 

gave “considerable weight.” (Tr. 21). All three consulting opinions also are consistent 

with the ALJ’s ultimate non-disability determination. Thus, substantial evidence in the 

record before the ALJ supports the Commissioner’s decision. Because substantial 

evidence exists, remand under Sentence Four of 42 U.S.C. § 405(g) is not appropriate.

2. Plaintiff’s Evidence Does Not Require Remand Under Sentence Six 

Because Plaintiff proceeds pro se in this Court, the undersigned additionally has 

construed her Statement of Errors as suggesting that remand for review of the additional 

Talbert House records could be appropriate under Sentence Six of 42 U.S.C. § 405(g). 
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While the additional Talbert House records cannot be considered to determine whether 

substantial evidence exists to uphold the ALJ’s decision under Sentence Four, new 

evidence can support remand under Sentence Six. See Cline v. Com’r of Soc. Sec., 96 

F.3d at 148. However, a court can remand for consideration of new evidence only if the 

plaintiff establishes that the evidence is both new, in 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 

difference 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). 

On the record presented, remand under Sentence Six is not appropriate. It is the 

Plaintiff’s burden to provide a complete record to the ALJ. See 20 C.F.R. § 404.1512. By 

the time of the hearing, the ALJ had more than 1,000 pages of records, including at least 

973 pages of medical records submitted by the Plaintiff. (See, e.g., Tr. 341, 349-1321). 

The mental health records reviewed by the ALJ included a number of Talbert House 

treatment records reflecting treatment between November 26, 2013 and October 27, 

2015. In addition, the ALJ reviewed treatment records from Behavioral Health Services 

between November 2013 and October 27, 2015, and the opinions of three different 

psychological consultants. At the April 26, 2016 hearing, the ALJ alerted Plaintiff that she 

did not have the most recent records from Talbert House and asked Plaintiff to execute 
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releases in order to obtain those records. (Tr. 30, 93). On May 5, 2016, a letter was 

mailed to Talbert House, requesting records from the prior six months.

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 (Tr. 29). 

Notably, Plaintiff offers no explanation at all for her original failure to submit those 

records prior to the date of the hearing before the ALJ. See Holton ex rel. Holton, 447 

F.3d 477, 485 (6th Cir. 2006) (“Holton has not even attempted to show that these 

materials were unavailable to her or her prior counsel during the course of the 

administrative proceedings”); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (to prove 

“good cause,” Plaintiff must demonstrate “a reasonable justification for the failure to 

acquire and present the evidence” to the ALJ) (additional citation omitted). 

Despite Plaintiff’s failure to show good cause (or any cause at all), the undersigned 

has reviewed the belatedly submitted evidence to determine whether it is “new” and 

“material” under Sentence Six. (See Tr. 32-35; 40-86). The records cannot be considered

“new” insofar as the vast majority of the records existed before the date of the hearing, 

and all of the records were generated prior to the date of the ALJ’s written decision.2 

Plaintiff’s failure to show the evidence is “new” in any way defeats any claim that this 

Court should remand under Sentence Six. Accord Cuthbertson v. Com’r of Soc. Sec., 

Case No. 1:11-cv-582, 2012 WL 2620257, at **5-6 (S.D. Ohio July 5, 2012), adopted at 

2012 WL 3073232 (S.D. Ohio July 30, 2012). 

Even if Plaintiff could show both that the records were “new” and that she had good 

cause for failing to present the records to the ALJ in this case, she still has failed to show 

 

1Defendant states that the ALJ requested copies of the latest records “within ten days” but the referenced 

letter does not appear to list a time limit for submission of the additional records. (See Doc. 11 at 3, citing 

Tr. 29). An ALJ cannot be expected to hold a record open indefinitely. Here, the hearing was held on April 

26, 2017 and the ALJ’s written decision was not rendered until nearly two months later, on June 21, 2017. 

2The most recent treatment note is dated June 17, 2016, a few days before the ALJ’s June 21, 2016 

decision.
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that the evidence is “material.” “In order for the claimant to satisfy this burden of proof as 

to materiality, [she] must demonstrate that there was 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 and Human Servs., 865 

F.2d 709, 711 (6th Cir. 1988). 

The tendered records are relevant to the assessment of Plaintiff’s mental 

limitations. However, the ALJ had already determined based on Talbert House and other 

treatment notes, as well as three psychological consultative reports, that Plaintiff was 

limited to completing simple to detailed tasks in a setting that did not have the need for 

close sustained focus/concentration or sustained fast pace, with only superficial contact 

with co-workers and the public, and a need to work in a routine environment with 

infrequent changes. (Tr. 18). Plaintiff points to nothing in the record that would require 

any greater limitations. In addition, the opinions of the psychological consultants were

well-supported, and it was reasonable for the ALJ to give them great weight in assessing 

Plaintiff with less than disabling mental limitations. The most recent pages of treatment 

notes do not contain any additional RFC opinions, and do not otherwise suggest 

additional limitations that would be inconsistent with those assessed by the ALJ. To the 

contrary, the latest notes regularly note “no new issues.” (Tr. 32-35, 40-86). Thus, there 

is no “reasonable probability” that the ALJ would have reached a different conclusion on 

the issue of Plaintiff’s disability if she had been presented with the additional Talbert 

House records. 

In sum, the records that Plaintiff urges this Court to consider cannot be considered 

to determine whether substantial evidence existed to support the ALJ’s decision. The 

undersigned finds, based upon the administrative record that was before the ALJ at that 
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time, that the June 21, 2016 non-disability determination is substantially supported. 

Additionally, remand under Sentence Six is not warranted because Plaintiff has failed to 

show “good cause” for her failure to submit the additional 58 pages of records to the ALJ

prior to the hearing and/or prior to the ALJ’s written decision, and Plaintiff also has failed 

to show that the evidence is either “new” or “material” as those terms are defined under 

the regulations and relevant case law.

III. Conclusion and Recommendation

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

decision be AFFIRMED as supported by substantial evidence, and that this case be 

CLOSED. 

/s Stephanie K. Bowman 

Stephanie K. Bowman

United States Magistrate Judge
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

STEPHANIE GRAY, Case No. 1:17-cv-666

Dlott, J.

Bowman, M.J.

Plaintiff,

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 and 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).