1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JASON N. WARREN, Case No. 1:18-CV-543 

Plaintiff, Dlott, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 Plaintiff Jason N. Warren filed this Social Security appeal to challenge Defendant’s 

finding that he is not disabled for the purposes of his eligibility to receive Social Security 

Disability Insurance Benefits. 42 U.S.C. §405(g). Proceeding through counsel, Plaintiff 

presents six claims of error, all of which the Defendant disputes. For the the reasons 

explained below, I conclude that the ALJ’s finding of non-disability should be AFFIRMED, 

because it is supported by substantial evidence in the administrative record. 

I. Summary of Administrative Record 

 On September 14, 2015, Plaintiff applied for diability insurance benefits, alleging 

disability beginning April 5, 201.1 (Tr. 87, 104, 167-73). Plaintiff’s application was denied 

initially on November 6, 2015 and upon reconsideration on January 22, 2016. (Tr. 105-

08, 127-29). Plaintiff then filed a written request for a hearing on February 16, 2016 before 

an Administrative Law Judge (“ALJ”). On November 29, 2017 (Tr. 32-74), ALJ William 

Diggs held a hearing at which Plaintiff appeared with counsel and testified. Robert Breslin, 

an impartial vocational expert, also appeared at the hearing. 
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 In a Decision dated January 29, 2018, the ALJ concluded that Plaintiff was not 

disabled within the meaning of the Social Security Act. (Tr. 9-29). Plaintiff filed a timely 

request for a review before the Appeals Council of the Office of Disability Adjudication 

and Review. On April 23, 2018, the Appeals Council advised Plaintiff’s counsel of 

Plaintiff’s right to submit additional evidence that is new, material, and relates to the period 

on or before the date of the hearing decision. (Tr. 7-8). In response, Plaintiff submitted a 

May 10, 2018 statement from plaintiff’s treating physician, Dr. Chang. (Tr. 31). In a 

Decision dated June 29, 2018, the Appeals Council denied Plaintiff’s claim and found that 

the May 10, 2018, letter did not show a reasonable probability that would change the 

outcome of the decision and therefore was not considered. (Tr. 1-6). Thereafter Plaintiff 

commenced this action. 

 Plaintiff was 36 years old on the date of the ALJ’s decision. (Tr. 39). He was 

homeshooled from 4th to 12th grade, obtained a high school diploma, and an associate’s 

degree from Cincinnati State Techinal College in PC Support and Administration. (Tr. 40). 

After graduating, he was hired at Frost, Brown, Todd as computer support and help desk 

technician. (Tr. 40-41). His past relevant work also includes appliance deliverer/installer. 

 Based upon the record and testimony presented at the hearing, the ALJ found that 

through the day last insured, the Plaintiff had the following severe impairments: 

“fibromyalgia; disorders of the spine; bilateral knee arthritis; irritable bowel syndrome 

(IBS); obesity; anxiety disorder; and effective disorder”. The ALJ concluded that none of 

Plaintiff’s impairments alone or in combination met or medically equaled a listed 

impairment in 20 C.F.R. Part 404, Subp. P, Appendix 1. The ALJ determined that through 
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the day last insured, Plaintiff had the following residual functional capacity (“RFC”) to 

perform sedentary work with the following limitations: 

[T]he claimant must periodically alternate sitting and standing to relieve pain and 

discomfort. He can occasionally climb ramps and stairs but can never climb 

ladders, ropes or scaffolds. He can frequently balance. He can occasionally stoop, 

kneel, crouch or crawl. He must avoid all exposure to unprotected heights. He 

can perform some multi-step tasks in a setting with flexible pace and production 

quotas. 

 

(Tr. 17). 

 Based upon the record as a whole including testimony from the vocational expert, 

and given Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that 

Plaintiff is unable to perform his past relevant work. Nonetheless, there were jobs that 

existed in significant number in the national economy, through the date last insured, that 

he could have performed, including such jobs as document preparer, addressor, and 

assembler. (Tr. 24). Accordingly, the ALJ determined that Plaintiff, through the date last 

insured, was not under disability, as defined in the Social Security Regulations, and is not 

entitled to DIB. Id.

 The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s 

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff 

argues that the ALJ erred by: 1) failing to consider Plaintiff’s limitations caused by pain 

and other symptoms; 2) failing to assess all of the manifestion of Plaintiff’s fibromyalgia; 

3) failing to consider the impact of Plaintiff’s morbid obesity; 4) improperly found Plaintiff’s 

description of his RFC not credible; 5) substituting his own opinion for the experts’ findings 

regarding anxiety and depression and cognitive limitations; and 6) finding that the 
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additional evidence would not have changed the outcome.1 Upon close analysis, I 

conclude that none of the asserted errors require reversal or remand. 

II. Analysis

 A. Judicial Standard of Review 

 To be eligible for SSI or DIB a claimant must be under a “disability” within the 

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition 

of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City 

of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory meaning, a 

“disability” includes only physical or 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, 476 U.S. at 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 

 1 Many of Plaintiff’s stated errors contain dublicate arguments and will be considered together 

when warranted for judicial clarity.
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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). 

 In considering an application 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 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. Commissioner 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 he or she 

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits 

must present sufficient evidence to show that, during the relevant time period, he or she 

suffered impairment, or combination of impairments, expected to last at least twelve 
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months, that left him or her unable to perform any job in the national economy. 42 U.S.C. 

§ 423(d)(1)(A). 

 B. The ALJ’s decision is supported by substantial evidence 

1. Physical Impairments 

 Plaintiff’s main argument appears to be that the ALJ did not sufficiently consider 

his physical impairments, particularly his severe impairments of fibromyalgia, irritable 

bowel syndrome (IBS), and obesity and the combined effects thereof. 

 Notably, Plaintiff argues that ALJ failed to properly evaluate his fibromyalgia. 

Specifcially, Plaintiff contends that the ALJ improperly evaluated the severity of the many 

fibromyalgia symptoms suffered by Plaintiff by failing to consider the combined effect of 

those symptoms upon Plaintiff's capacity to engage in work activities. Plaintiff further 

contends that the ALJ failed to consider the longitudinal nature of plaintiff's fibromyalgia 

in assessing the severity of this condition; and the fact that fibromyalgia symptoms wax 

and wane in order to recognize that a temporary abatement of a symptom does not reflect 

an improvement in a fibromyalgia patient's overall physical functional capacity. Plaintiff’s 

contentions are unavailing. 

 As detailed above, the ALJ determined that Plaintiff had the severe impairment of 

fibromyalgia. (Tr. 15). The ALJ noted that, in 2015, Plaintiff saw a rheumatologist and that 

treatment notes indicated allegations of chronic widespread pain in his neck, knees, lower 

back, left ribs, legs, and hips since 2014. (Tr. 18, 280-81, 297-302). Plaintiff also reported 

malaise and fatigue and the rheumatologist noted muscle tenderness and tender points 

on examination. Id. Plaintiff also had complaints of cognitive and memory problems 

consistent with “fibro fog.” (Tr. 18-19, 394). The ALJ also appropriately noted that other 
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causes of Plaintiff’s symptoms had been properly excluded, as is consistent with a 

diagnosis of fibromyalgia. (Tr. 18). 

 Moreover, Plaintiff argues that the ALJ should have given more credence to his 

pain complaints because his rheumatologist and primary care doctor diagnosed 

fibromyalgia and documented his pain on several occasions. However, it is well 

established that a mere diagnosis does not compel a finding of disability. See Young v. 

Sec’y of HHS, 925 F.2d 146, 151 (6th Cir. 1990) (diagnosis of an impairment is not 

enough for a finding of disability). See also Vance v. Comm’r of Soc. Sec., 260 F. App’x 

801, 806 (6th Cir. 2008) (“[A] diagnosis of fibromyalgia does not automatically entitle 

[claimant] to disability benefits . . .”); Estok v. Apferl, 152 F.3d 636, 640 (7th Cir. 1998) 

(“[F]ibromyalgia is not always (indeed, not usually) disabling.”). Second, the ALJ here 

carefully considered Plaintiff’s diagnosis and complaints of pain, but also reasonably 

considered Plaintiff’s conservative treatment and noted that medications relieved his 

symptoms. (Tr. 19, 297-99, 375-78, 487-88, 491-92, 495-96). 

 The ALJ also considered Plaintiff’s overall conservative treatment for his other 

impairments, which again undermined Plaintiff’s subjective complaints of pain. (Tr. 19-

20). For example, Plaintiff treated with a pain management specialist in 2015 and 2016 

for his spine impairment. (Tr. 19, 381-91, 439-78, 478-547). This treatment consisted of 

injections, which relieved a portion of Plaintiff’s back pain; in August and September 2015, 

Plaintiff reported up to 80% pain relief. (Tr. 19, 381, 441, 446, 451-52, 456-59, 463). He 

was also prescribed a conservative regimen of medications, with no opioids, that Plaintiff 

stated reduced his pain. (Tr. 19-20, 382, 385, 387, 389, 453, 469, 475). Plaintiff also had 

several sessions of physical therapy in October and November 2017. (Tr. 20, 405-11). 
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Plaintiff received similarly conservative treatment for his knee impairment. (Tr. 20, 504). 

He relied exclusively on medication to treat this condition and treatment notes indicate 

that Plaintiff responded positively to this regimen. Id. In sum, the undersigned finds that 

the ALJ properly considered Plaintiff’s fibromyalgia and resulting symptoms in formulating 

Plaintiff’s RFC. As such, the ALJ’s finding in this regard should not be disturbed. 

 Plaintiff also contends that the ALJ failed to consider the impact of Plaintiff’s 

obesity on his ability to perform gainful activity. In this regard, Plaintiff notes that he is 

5’10” and weighs 386 pounds, which is a BMI of 54.13. Here, however, the ALJ 

determined that Plaintiff had the severe impairment of obesity and noted that throughout 

the record, especially around 2016, Plaintiff’s weight exceeded 400 pounds. (Tr. 15, 20, 

492). The ALJ also noted Plaintiff’s testimony that he weighed more than 300 pounds for 

the past 15 years, and that doctors did not recommend gastric bypass surgery because 

of his gastrointestinal issues. (Tr. 18, 51). Moreover, the state agency reviewing 

physicians explicitly considered Plaintiff’s obesity, yet opined that he could perform light 

work even with this impairment. (Tr. 22, 75-86, 88-103). The ALJ only gave these opinions 

some weight given that evidence submitted after these physicians authored their opinions 

necessitated further restrictions. (Tr. 22). However, there is no indication that Plaintiff’s 

obesity caused any additional limitation after these opinions were authored to invalidate 

the findings therein, or to invalidate the ALJ’s assessment of Plaintiff’s obesity. 

 With respect to Plaitniff’s irritable bowel syndrome (IBS), the ALJ noted that 

Plaintiff had been diagnosed with IBS and had experienced abdominal symptoms 

beginning several years prior to the alleged onset date, in 2008. (Tr. 20, 646). Further, as 

detailed by the Commisserion, diagnostic studies from this remote period, as well as 
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those close to the alleged onset date, showed no abnormalities in Plaintiff’s colon. (Tr. 

20, 412, 425, 431-32). While Plaintiff reported symptoms of nausea, vomiting, and 

diarrhea around the alleged onset date, there is no indication that Plaintiff’s condition 

deteriorated at that time, or after that date. (Tr. 20, 637). The ALJ properly noted that the 

medical evidence showed that Plaintiff’s IBS symptoms, during the relevant period, were 

sporadic and amenable to treatment. (Tr. 20). For example, in 2013, Plaintiff reported 

exacerbated symptoms that lasted several days before abating. (Tr. 20, 321-28). He also 

stated that probiotics helped with abdominal pain and cramps. (Tr. 20, 321). The following 

month, Plaintiff stated that his abdominal pain was mild and he indicated that his 

symptoms continued to improve by the end of the year. (Tr. 20-21,324-31). In 2015, 

Plaintiff reported only needing to use the bathroom three times that morning. (Tr. 21, 365-

70). As the ALJ noted, this was not inconsistent with working in a job with flexible pace 

and production quotas. (Tr. 21). For these reasons, the undersigned finds that the ALJ 

properly evaluated Plaintiff’s severe impairment of IBS and reasonably determined that it 

did not cause work-preclusive limitations. 

 Last, Plaintiff contends that the ALJ failed to properly consider the combine effects 

of his fibromyalgia, IBS, and obesity on his ability to sustain gainful employment. Here, 

however, the ALJ's decision clearly indicates that he considered the combined effect of 

Plaintiff's impairments. (See Tr. 15-16). The ALJ expressly refers to a “combination of 

impairments” in finding that Plaintiff does not meet any of the Listings. Id. See also Loy v. 

Sec'y of Health and Human Servs., 901 F.2d 1306, 1310 (6th Cir.1990) (“An ALJ's 

individual discussion of multiple impairments does not imply that he failed to consider the 

effect of the impairments in combination, where the ALJ specifically refers to a 
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‘combination of impairments' in finding that the plaintiff does not meet the listings.”). The 

ALJ's decision also indicates that he considered whether Plaintiff's impairments met 

Listings 1.04(A), 12.04 and 12.06 and thoroughly explained his rationale for concluding 

that she did not meet any of those Listings. The ALJ also indicated that he considered 

Plaintiff's obesity in combination with her other impairments. 

 2. Mental Impairments

 Plaintiff further asserts that the ALJ improperly substituted his own judgment for 

the medical opinions regarding Plaintiff’s anxiety and depression. While an ALJ is free to 

resolve issues of credibility as to lay testimony, or to choose between properly submitted 

medical opinions, he is not permitted to make his own evaluations of the medical findings. 

As recognized by this Court, “[t]he ALJ must not substitute his own judgment for a doctor's 

conclusion without relying on other medical evidence or authority in the record.” Mason 

v. Comm'r of Soc. Sec., No. 1:07–cv–51, 2008 WL 1733181, at *13 (S.D.Ohio April 14, 

2008) (Beckwith, J.; Hogan, M.J.) (citing Hall v. Celebrezze, 314 F.2d 686, 690 (6th 

Cir.1963); Clifford v. Apfel, 22.7 F.3d 863, 870 (7th Cir.2000); Ferguson v. Schweiker, 

765 F.2d 31, 37 (3rd Cir.1985); Sigler v. Sec'y of H.H.S., 892 F.Supp. 183, 187–88 

(E.D.Mich.1995)). 

 Here, however, the ALJ properly evaluated the medical opinions and record 

evidence relating to Plaintiff’s mental impairments. In this regard, the ALJ noted that 

Plaintiff’s primary care physician diagnosed Plaintiff with anxiety and was prescribed 

Prozac. He further noted that Plaintiff was prescribed psychotropic medications in relation 

to his fibromyalgia symptom’s. The ALJ further noted that the consultative examination 

with Brian Griffiths, Psy.D. in January 2016 did not substantiate Plaintiff’s allegations 
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regarding his mental impairments. (Tr. 21). On exam, Plaintiff appeared depressed with 

a flat affect, but did not exhibit any autonomic or motoric indications of anxiety (Tr. 21, 

396). He recalled five digits forward and five backwards, remembered one of three objects 

after a five-minute delay, and successfully completed a serial counting task. Id. Plaintiff 

correctly calculated several arithmetic problems, correctly interpreted a saying, and 

exhibited a fund of common knowledge. Id. Dr. Griffiths noted that Plaintiff understood 

and followed simple instructions during the exam, could follow conversation adequately, 

and worked at an adequate rate. (Tr. 397-98). 

 Moreover, other than asserting that he has been diagnosed with anxiety and 

depression, Plaintiff fails to identify and record evidence that supports greater functional 

limitations than those found by the ALJ relating to his mental impairments. As noted 

above, a mere diagnosis or catalogue of symptoms does not indicate functional limitations 

caused by the impairment. See Young v. Sec'y of Health & Human Servs., 925 F.2d 

146,151 (6th Cir. 1990) (diagnosis of impairment does not indicate severity of 

impairment). 

 In light of the forgoing, the undersigned finds that substantial evidence supports 

the Commissioner’s decision and the decision should be affirmed in this regard. 

 C. Sentence Six Remand

 Also before the Court is Plaintiff’s request for a sentence six remand to allow the 

Commissioner to consider additional records from Roger Chang, M.D., his treating 

physician. Plaintiff’s request is not well-taken. 

 Pursuant to sentence six, 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 
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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) (citations 

omitted); see also Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 483 (6th Cir.2006). The 

plaintiff must also establish good cause for his failure to present the evidence to the ALJ. 

See Bass v. McMahon, 499 F.3d 506 (6th Cir.2007); Brainard v. Sec'y of Health & Human 

Servs., 889 F.2d 679, 681 (6th Cir.1989). “‘Good cause’ is not established solely because 

the new evidence was not generated until after the ALJ's decision. The Sixth Circuit has 

taken a ‘harder line.’” Saunders v. Comm'r of Soc. Sec., 2010 WL 1132286 at *3 

(W.D.Mich. March 3, 2010) (quoting Oliver v. Sec. of Health & Human Servs., 804 F.2d 

964, 966 (6th Cir.1986) (additional citations omitted). 

 Here, the ALJ issued his decision in January 2018. (Tr. 9-29). Four months later, 

Plaintiff submitted a letter from his treating physician, Roger Chang, M.D., stating that Dr. 

Chang agreed with the functional capacity evaluation performed by physical therapist 

Karen Scholl in October 2017. (Tr. 31). The Appeals Council considered this letter, found 

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

decision,” and denied Plaintiff’s request for review of the ALJ’s decision. (Tr. 1-6). 

Plaintiff now aseeks a sentence six remand to consider this evidence. Plaintiff, however, 

has failed to show that such evidence is new and material. 

 As noted by the Commissioner, his material is not new. Though it post-dates the 

ALJ’s decision, it was available to Plaintiff prior to that point. Dr. Chang could have 

reviewed Ms. Scholl’s evaluation at any time prior to January 2018, and made those 

results made available to the ALJ. See Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) 
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(additional evidence is new if it was not available to the claimant at the time of the 

administrative proceeding). Furthermore, the evidence is not material. Evidence is 

material for the purpose of sentence six 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.” Foster, 279 F.3d at 357. 

 Plaintiff appears to argue that if Ms. Scholl’s evaluation had been endorsed by a 

treating source, the ALJ would have given it controlling weight, and therefore, found him 

disabled. However, upon review of Dr. Chang’s letter, the Appeals Council found that 

there was not a reasonable probability that this letter would have changed the outcome 

of the decision and therefore, it was not material. (Tr. 2). Furthermore, as noted by the 

Commissioner, the ALJ did not discount Ms. Scholl’s evaluation solely because she was 

not a treating source. (Tr. 22). Notably, in rejecting Ms. Schools evaluation, the ALJ 

determined that her findings were inconsistent with the medical evidence showing that 

Plaintiff had undertaken only conservative treatment that was largely effective for both his 

fibromyalgia and orthopedic problems. (Tr. 22, 297-99, 375-78, 382, 385, 389, 359, 453, 

469, 478, 497-88, 491-92, 495-96, 504). In addition, the ALJ referenced the objective 

medical evidence in the record including diagnostic studies that revealed no abnormalities 

in Plaintiff’s back and mild arthritis in his knees. (Tr. 22, 477-78, 526-27). Finally, the ALJ 

discussed how Plaintiff’s activities of daily living were not in line with the restrictions in 

Ms. Scholl’s evaluation. (Tr. 22). Plaintiff assisted his children with their homework, 

suggesting that he could sit longer than the opined 20 minutes, and occasionally rode his 

motorcycle. (Tr. 22, 61-63) 

 Accordingly, Plaintiff’s request for a sentence six remand is not well-taken. 
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 III. Conclusion and Recommendation 

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

decision be found to be SUPPORTED BY SUBSTANTIAL EVIDENCE, and 

AFFIRMED, and that this case be CLOSED.

 

 

 s/Stephanie K. Bowman 

Stephanie K. Bowman 

 United States Magistrate Judge 
15

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JASON N. WARREN, Case No. 1:18-CV-543 

Plaintiff, Dlott, J. 

 Bowman, M.J. 

 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 & 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).