UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANTHONY HERNANDEZ,

Plaintiff,

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:17-cv-00419

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

Plaintiff Anthony Hernandez brings this case pro se challenging the Social Security 

Administration’s denials of his applications for Disability Insurance Benefits and 

Supplemental Security Income. He disagrees with Administrative Law Judge George 

Michael Gaffaney’s determination that he is not under a “disability” as defined by the Social 

Security Act. This determination compelled the Social Security Administration to deny 

Plaintiff’s applications for benefits.

Plaintiff asserts that he has numerous health problems and that he is presently under 

hospice care. A report his mother wrote states that Plaintiff has a “current history of 1 or 

more years inability to function outside a highly supportive living arrangement.” (Doc. #11, 

PageID #584). His health problems include cirrhosis of the liver (requiring 2 surgeries), 

alcoholism, mild strokes, back problems, internal bleeding into his stomach, and “draining 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

fluid around his stomach and heart.” (Doc. #9, PageID #s 561-62). He has endured 2 heat 

strokes. He also has emotional difficulties. He feels low, pathetic, worthless, and useless. 

Id. at 562. He cannot drive anymore due to seizures, and he was under hospice care, at least 

as of April 2018.

Liberally construing Plaintiff’s pro se submissions in his favor, he asserts that his 

health problems prevent him from working a full-time job and that the ALJ erred in 

concluding otherwise. See Wright-Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 396 n.1 (6th 

Cir. 2010) (“keeping in mind the liberal standard accorded to pro se pleadings, we will 

address her contention here.”); see also Meek v. Comm'r of Soc. Sec., No. 96-3428, 1996 

WL 596506, at *1 (6th Cir. 1996) (“liberally construing Meek’s pro se brief ...”); Meadows 

v. Berryhill, 5:17-176-DCR, 2017 WL 1147453, at *2 (E.D. Ky. March 27, 2017) (and cases 

cited therein).

The Commissioner argues that Plaintiff has not raised any legally cognizable 

arguments and, as a result, has waived such arguments. This contention lacks merit 

because—when Plaintiff’s materials are liberally construed in his favor, Wright-Hines, 597 

F.3d 392, 396 n.1; see Meadows, 2017 WL 1147453, at *2 (and cases cited therein)—he 

sufficiently identifies his potentially disabling impairments, and he argues that the ALJ’s 

findings are incorrect. He argues, for instance, that his part-time work was not influenced 

by his desire to apply for disability benefits, as the ALJ believed, but was influenced by his 

desire to work as much as he could. (Doc. #11, PageID #s 584-85). He also points to 

evidence he submitted to the Social Security Administration’s Appeals Council, including a 

note his treating physician, Dr. Rose, wrote in July 2014 declaring that he (Plaintiff) could
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not work over 20 hours a week. Id. at 585. Plaintiff also explains that cervical and lumbar 

MRIs in July 2014 and March 2014 resulted in diagnoses of syringomyelia and 

syringobullia. Id. at 586. Because Plaintiff has submitted this, plus additional evidence, for 

this Court’s consideration, he has not waived his challenge to the ALJ’s decision or the 

possibility that his newly submitted evidence warrants a remand to the Social Security 

Administration under Sentence 6 of 42 U.S.C. §405(g).

Additionally, waiver does not apply here because in the lone social-security case the 

Commissioner cites to support an application of waiver, the plaintiff was represented by 

counsel. See Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 465, 2003 WL 23140056, 

at *1 (6th Cir. 2003). In addition, although the plaintiff’s counsel in Kennedy asserted that 

the plaintiff met or equaled a disability (listing 1.13) described in the Commissioner’s 

Listing of Impairments, counsel waived this contention by not presenting any supporting 

explanation. Id. at 466. Kennedy is distinguished from the present case for several reasons: 

(1) Plaintiff proceeds without the assistance of an attorney, unlike the plaintiff in Kennedy; 

(2) Plaintiff’s pro-se status dictates a liberal construction of his submissions in his favor;

and (3) construing his submissions liberally in his favor sheds enough light to discern the 

basis for his claimed disabilities. Plaintiff, therefore, has not waived his challenge to the 

ALJ’s decision.

The Commissioner next argues that substantial evidence supports ALJ Gaffaney’s 

assessment of Plaintiff’s residual functional capacity—his ability to perform work activities 

despite his limitations, see Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 

2006), and the ALJ’s conclusion that Plaintiff is not disabled. The Commissioner further 
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argues that the evidence Plaintiff has submitted with his Memoranda—which includes his 

July 2014 and March 2015 MRI reports—does not warrant a remand to the Social Security 

Administration under Sentence 6 of 42 U.S.C. § 405(g). Before reaching these arguments,

an exploration of some key facts along with Plaintiff’s testimony is warranted.

Plaintiff was 38 years old on the date his asserted disability began (January 2, 2012). 

This placed him in the category of a “younger” person under social security regulations. 20

C.F.R. § 404.1563(c).2

 He graduated from high school and worked in the past as an 

electrician apprentice.

Plaintiff testified during a hearing held by the ALJ. He did so without representation 

by counsel or a non-attorney representative. His mother was present during the hearing and 

testified.

Plaintiff testified that he is 5ˊ1′′ tall and weighs 124 pounds. He lives with his 

mother, stepfather, and 7 dogs. At that time, he worked part-time as a delivery driver for a 

submarine-sandwich store.3

Plaintiff explained that he feels hot and cold in his right arm. He thinks nerve 

damage on his right side causes this problem. If someone touches his right arm, he feels 

pressure. He uses his left hand, not his right hand, to test the temperature of water so he will

not burn himself. (Doc. #6, PageID #125). If he happens to cut his right arm, he will not 

notice until someone points it out to him. Id. at 125. His right arm is constantly numb and 

 2 Citations to social security regulations will identify the pertinent Disability Insurance Benefits regulations 

with full knowledge of the corresponding Supplemental Security Income regulation.

3 The ALJ concluded that this was not substantial gainful activity. See Doc. #6, PageID #82.
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this keeps him awake at night. He reported, “I mean..., it’s not, like, a pain. It’s just 

annoying....” Id. at 131. A physician told him that he probably needs surgery on his right 

arm, but he cannot afford it. Id. at 124. Plaintiff has lost strength in his right arm and has 

difficulty picking things up with his right hand. For example, he takes out the trash using 

his left hand. Id. at 126. He writes and eats with his left hand.

Plaintiff also has back pain. He told the ALJ that sitting in a chair during the hearing 

was “killing [his] back,” and he preferred to stand. Id. at 124, 131. He feels a stabbing pain 

in his left and right sides, below his ribs. He noted, “It feels like somebody just sticks a 

needle in there. And it hurts real bad.” Id. at 124-25. Now and then, Plaintiff has similar 

needle-stabbing pain in the back of his head. Id. at 126.

Plaintiff explained that his pain leads him into depression. He’s “not a very happy 

guy sometimes.” Id. He has difficulty remembering addresses when he is working as a 

delivery driver. If someone distracts him, he completely forgets what he is thinking. He 

does not have difficulty getting along with people. He takes prescription eye drops for 

glaucoma. He testified that he “can’t sleep” and takes Doxepin to help him sleep. Id. at 

127. He is unaware of any side effects his medication causes him. Id.

When asked about his drinking, Plaintiff said, “It’s slowed down considerably.” Id. 

at 128. This, he explained, means about 5 or 6 cans of beer (12 ounces each) a day. Id.

Plaintiff’s mother testified that she sees Plaintiff daily. She explained, “He doesn’t 

sleep very well,” he takes out the trash, and he helps with the dogs. Id. at 130. She noted,

“He doesn’t have a lot of energy. He’s lost a lot of weight.” Id.

Turning to the law, the Social Security Administration provides Disability Insurance
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Benefits and Supplemental Security Income to individuals who are under a “disability,” 

among other eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 

(1986); see 42 U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the

Social Security Act—has specialized meaning of limited scope. It encompasses “any 

medically determinable physical or mental impairment” that precludes an applicant from 

performing a significant paid job—i.e., “substantial gainful activity.” 42 U.S.C. §§ 

423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.

As indicated above, ALJ Gaffaney concluded that Plaintiff was not under a disability. 

Judicial review of the ALJ’s decision proceeds along two lines: whether he applied the 

correct legal standards and whether substantial evidence supports his findings. Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 

478 F.3d 742, 745-46 (6th Cir. 2007). Review for substantial evidence is not driven by 

whether the Court agrees or disagrees with the ALJ’s factual findings or by whether the 

administrative record contains evidence contrary to those findings. Gentry v. Comm’r of 

Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 

241 (6th Cir. 2007). Instead, the ALJ’s factual findings are upheld if the substantialevidence standard is met—that is, “if a ‘reasonable mind might accept the relevant evidence 

as adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r 

of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more 

than a scintilla of evidence but less than a preponderance....” Rogers, 486 F.3d at 241 

(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.

If the ALJ applied incorrect legal criteria, reversal may be warranted even though the 
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record contains substantial evidence supporting the ALJ’s factual findings. Rabbers v. 

Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746.

In reviewing the evidence connected to Plaintiff’s applications for benefits, ALJ 

Gaffaney utilized the 5-step analysis enumerated in social security regulations. See 20 

C.F.R. § 404.1520(a)(4); see e.g., Earley v. Comm’r of Soc. Sec., 893 F.3d 929, 931 (6th 

Cir. 2018). The ALJ’s more significant conclusions, for present purposes, occurred at Steps 

2 and 3 where he found that Plaintiff’s severe impairments—“cervical spine degenerative 

disc disease with radiculopathy; eczema/cellulitis; depression; anxiety; and alcohol use”—

plus his non-severe impairments, did not automatically qualify him for benefits under the 

Commissioner’s Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 

#6, PageID #s 82-84).

At Step 4, the ALJ assessed Plaintiff’s residual functional capacity or, more simply, 

the most he can and cannot do despite his impairments. 20 C.F.R § 404.1545(a)(1); 

see Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). The ALJ concluded 

that Plaintiff could perform the light work. He “is able to lift/carry 20 pounds occasionally 

and 10 pounds frequently; stand and walk 6 hours in and 8-hour workday; sit 6 hours during 

an 8-hour workday. [He] is limited to frequent, as opposed to constant, climbing of ladders 

and crawling. He limited to simple, routine tasks with only occasional changes in a routine 

setting and only occasional changes in a routine work setting and only occasional interaction 

with public, co-workers, and supervisors.” Id. Given these abilities and limitations, 

Plaintiff could no longer work as an electrician apprentice, but there were a significant 

number of jobs available in the national economy that he could do, such as folder,
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housekeeper, or sorter. Id. at 89-90. The ALJ’s conclusion that Plaintiff could do such jobs 

meant he was not under a disability and not eligible to receive either Disability Insurance 

Benefits or Supplemental Security Income. Id.

Plaintiff’s opposition to ALJ Gaffaney’s decision is based, in part, on the results of a 

MRIs he had in December 2014 and March 2015. The ALJ did not have these test results 

before him at the time of his July 2014 decision. But Plaintiff submitted these test results 

and other materials (Exhibits 21E, 12F, and 13F) to the Appeal Council. (Doc. #6, PageID

#75). In July 2015, the Appeals Council denied Plaintiff’s request for review, effectively 

affirming the ALJ’s decision. Id. at 70-71.

The first potentially dispositive issue is whether Plaintiff is entitled to remand based 

on the medical evidence he obtained and submitted the Social Security Administration’s 

Appeals Council after the ALJ issued his decision.

Under sentence 6 of 42 U.S.C. § 405(g), a proscription arises: Plaintiff’s new 

evidence is not examined to determine whether to uphold, reverse, or modify the ALJ’s 

decision. See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Instead, 

sentence 6 provides this Court with authority to “remand the case for further administrative 

proceedings in light of the new evidence, if a claimant shows that the evidence is new and 

material, and that there was good cause for not presenting it in the prior proceeding.” Id.

(citing Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993)).

[E]vidence is new 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, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990). Such evidence is material 

only if there is “a reasonable probability that the Secretary [now, 

Commissioner] would have reached a different disposition of the disability 

claim if presented with the new evidence.” Sizemore v. Sec'y of Health & 
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Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). A claimant shows “good 

cause” by demonstrating a reasonable justification for the failure to acquire and 

present the evidence for inclusion in the hearing before the ALJ. Willis v. Sec'y 

of Health & Human Servs., 727 F.2d 551, 554 (1984) (per curiam).... [T]he 

burden of showing that a remand is appropriate is on the claimant. Oliver v. 

Sec'y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986).

Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Plaintiff bears the burden of 

demonstrating that a sentence-6 remand is proper. See Allen v. Comm'r of Soc. Sec., 561 

F.3d 646, 653 (6th Cir. 2009); see also Oliver v. Sec'y of Health and Human Servs., 804 

F.2d 964, 966 (6th Cir. 1986).

The Commissioner contends that a sentence-6 remand is neither appropriate nor 

warranted because some—6 pages—of the evidence Plaintiff submitted to the Appeals 

Council is not “new.” This is correct as to those 6 pages, see Doc. #6, PageID #s 508-13,

yet much of Plaintiff’s recently submitted evidence is new. The MRI reports in particular 

are dated after the ALJ’s July 2014 decision. Because these reports and other evidence 

Plaintiff submitted to the Appeals Council did not exist a the time of the ALJ’s decision, it 

constitutes new evidence under sentence 6. See Sullivan, 496 U.S. at 626.

Good cause supports Plaintiff’s failure to obtain and submit this evidence to the ALJ 

before he issued his decision. Plaintiff testified during the ALJ’s hearing that he “just got 

accepted for Medicaid through Job and Family Services.” (Doc. #6, PageID #124). 

Medicaid therefore did not provide him health coverage much before the ALJ’s hearing 

occurred. This reasonably explains why he was unable to obtain and provide his new 

evidence to the ALJ. He simply could not afford to pay for the MRIs before obtaining 

Medicaid. Additionally, when the ALJ asked Plaintiff if he had “signed up for 

Obamacare...,” Plaintiff responded, “Yeah, I tried that.” Id. The ALJ did not further 
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question Plaintiff about whether he had health insurance at any time before the hearing. 

Plaintiff testified, moreover, that surgery would cost him up to $3,000, “that’s, like a years 

pay to me.” Id. The record leaves little doubt that Plaintiff could not afford health 

insurance and lacked health-insurance coverage until he began receiving Medicaid. 

Moreover, Plaintiff promptly obtained the September 2014 MRI once his Medicaid kicked 

in. All these circumstances add up to good cause for Plaintiff’s failure to obtain and submit 

his new evidence before the ALJ issued his decision. 

The Commissioner next argues that Plaintiff’s evidence is not material because much 

of it came into existence well after the ALJ’s July 2014 decision and, consequently, does not 

impact Plaintiff’s health status during the time period the ALJ adjudicated. Given this, the 

evidence would not alter the ALJ’s decision and is cumulative and not material, according 

to the Commissioner.

The Commissioner, however, overlooks the specific information provided in the 

spinal MRI taken on December 29, 2014. It appears that this MRI was the first one Plaintiff 

underwent with gadolinium. The physician who reviewed this MRI identified a 

“[p]rominent thoracic cord syrinx. There is a slitlike cavity in the posterolateral aspect of 

the spinal cord on the right and extends all the way from C1 into the thoracic region. 

Appears thickest at C5 and measures 4 mm in maximal diameter. The etiology is 

inapparent. No cord compression of significance is seen....” (Doc. #11, PageID #594).

In March 2015, Plaintiff underwent an MRI of his lumbar spin without contrast, 

which showed mild degenerative changes with borderline spinal stenosis at L4-5 and mild 

neural foraminal encroachment at L4-5. The reviewing physician also reported his 
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impression that Plaintiff had “syringiohydromyelia cervical thoracic.” Id. at 599. Here is 

where the materiality of Plaintiff’s new evidence begins to emerge.

The March 2015 impression of syringiohydromyelia correlates with the December 

2014 MRI report’s description of a “[p]rominent thoracic cord syrinx.” Id. “Syringomyelia 

is a disorder in which a fluid-filled cyst (called a syrinx) forms within the spinal cord. The 

syrinx can get bigger and elongate overtime, damaging the spinal cord and compressing and 

injuring the nerve fibers that carry information to the brain and from the brain to the rest of 

the body.” https://wwwninds.nih.gov (search for “syringomyelia”). The term 

“syringiohydromyelia” used in the March 2015, rather than “syringomyelia” refers to the 

same type of spinal abnormality.4

These MRI test results are relevant to evaluating the intensity, persistence, and 

limiting effects (as Plaintiff explained to the ALJ) of his right-arm pain and numbness; his

inability to feel temperature—he tests water temperature with his left had so he doesn’t burn 

his right hand; his loss of feeling—he said he doesn’t notice a right-arm cut until someone 

points it out to him; and his weakness in his right arm—he said he drops things, so he uses 

his left arm to do tasks like taking out the trash. Plaintiff’s MRI results constitute objective 

evidence that correlates with Plaintiff’s syringomyelia symptoms. As such, it constitutes 

evidence of “an underlying medically determinable physical impairment that could 

reasonably be expected to produce the claimant’s symptoms.” Rogers v. Comm’r of Soc.

Sec., 486 F.3d 234, 247 (6th Cir. 2007) (citing 20 C.F.R. § 416.929(a)).

 4 “Hydromyelia is sometimes used interchangeably with syringomyelia, the name for a condition that also involves 

cavitation in the spinal cord....” http://ninds.nih.gov (search for “hydromyelia”).
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The Commissioner’s contention that Plaintiff’s evidence pertains to a later time 

period that is after the adjudicated time period overlooks that Plaintiff often reported 

symptoms consistent with syringomyelia during the adjudicated period. As early as April 

2012 (before his claimed disability onset date of March 28, 2013), he reported “no feeling in 

his rt [right] arm, neck & parts of [his] spine....” (Doc. #6, PageID #368). In June 2012, he 

complained of decreased sensation in his right hand. Id. at 371.

He reported numbness and was diagnosed with “right upper extremity paresthesias” 

in March 2012; he was diagnosed with paresthesia in July 2012 (Doc. #6, PageID #466). 

By definition, paresthesia generally involves “abnormal or unpleasant sensations that result 

from injury to one or more nerves, often described by patients as numbness or as a prickly, 

stinging, or burning feeling.” Taber=s Cyclopedic Medical Dictionary, p. 1519 (19th Ed. 

2001). Similar entries in his medical records document his reports of numbness and other 

symptoms in later years, including information in his new medical evidence. See Doc. #6, 

PageID #s 491 (“Numbness of the right upper extremity”); 509 (neuropathy right arm); 511 

(“right grip definite weakness,” neuropathy upper limb); 512, 514 (neuropathy right arm, 

“sharp pain in lower back when sits down”).

Plaintiff’s new evidence contains the first MRI results in the record, indicating that it 

wasn’t until he underwent the MRI that there was objective medical evidence of 

syringomyelia. The most reliable way to diagnose syringomyelia is with an MRI, which 

“produce[s] clear images of the brain and spinal cord.” https://wwwninds.nih.gov (search 

for “syringomyelia”; “How is syringomyelia diagnosed?”). This objective evidence is 

consistent with the symptoms Plaintiff reported to physicians during the adjudicated time 
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period and the symptoms he described to the ALJ. Given this, his new evidence creates a 

reasonable probability that the ALJ would have found Plaintiff had some, if not significant, 

limitations in the use of his right extremity during the adjudicated time period, thus altering 

his assessment of Plaintiff’s residual functional capacity—which contained no limitation at 

all on Plaintiff’s use of his right extremity. For emphasis: The ALJ found that Plaintiff 

could frequently, although not constantly, climb ladders. Anyone who climbs a ladder using 

only one extremity, or with a significantly limited extremity, surely plays a daredevil’s 

game.

For these reasons, Plaintiff’s new objective evidence leads to a reasonable probability 

that the Social Security Administration would have reached a different disposition of 

Plaintiff’s applications for disability benefits.

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s non-disability finding be vacated;

2. No finding be made as to whether Plaintiff Anthony Hernandez was under a 

“disability” within the meaning of the Social Security Act;

3. This case be remanded to the Social Security Administration under sentence 6

of 42 U.S.C. § 405(g) for further consideration consistent with this Report and 

any Decision and Entry adopting this Report and Recommendations; and

4. The case be administratively processed, but not terminated, on the docket of 

this Court.

April 4, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise 

directs. A party may respond to another party’s objections within FOURTEEN days after 

being served with a copy thereof. 

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, 

949-50 (6th Cir. 1981).