Montecalvo v. Commissioner of Social Security

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0405n.06

No. 16-3560 FILED
Jul 13, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOHN J. MONTECALVO, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
COMMISSIONER OF SOCIAL SECURITY, )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellee. )
)
)

BEFORE: SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges.

SUHRHEINRICH, Circuit Judge. Plaintiff-Appellant John Montecalvo appeals the

district court’s judgment affirming the Commissioner’s denial of Social Security disability

insurance benefits. The district court had jurisdiction to review the Commissioner’s final

decision under 42 U.S.C.§§ 405(g) and 1383(c)(3). This court has appellate jurisdiction pursuant

to 28 U.S.C. § 1291 and 42 U.S.C. §§ 405(g) and 1383(c)(3). We affirm.

I.

Plaintiff applied for disability insurance benefits (DIB) on January 10, 2011, alleging

disability beginning March 3, 2007 when he was forty-one years old. He has a high school

diploma. He served in the Gulf War from January 1991 until May 15, 1991. From 1994 until

March 2007, he worked as an assembly-line worker and forklift operator at Delphi Packard

Electric in Warren, Ohio. He stopped working on March 3, 2007 when the company filed for
No. 16-3560, Montecalvo v. Comm’r of Social Security

bankruptcy and he accepted a buyout. He also receives a 60% disability from the Veterans

Administration for peptic ulcer disease.

Plaintiff alleged disability due to depression, anxiety, post-traumatic stress disorder

(PTSD), stomach problems, bowel problems, stress, concentration problems, respiratory issues,

and pain all over his body. R. 13, ID# 211, 236. Plaintiff requested and received a hearing.

Applying the five-step sequential analysis detailed at 20 C.F.R. § 404.1520, the administrative

law judge (ALJ) concluded that Plaintiff was not disabled within the meaning of the Social

Security Act. The ALJ found that Plaintiff had severe impairments of gastritis, peptic ulcer,

irritable bowel syndrome (IBS), lumbar degenerative disc disease, adjustment disorder and post-

traumatic stress disorder, but did not have an impairment or combination of impairments that met

or medically equaled one of the impairments listed in 20 C.F.R. Pt. 404, subpt. P, app. 1,

20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. R. 13, ID# 72-85. The ALJ found that Plaintiff

had the residual functional capacity (RFC) to perform a limited range of light work, based on the

vocational expert’s (VE) testimony that a person with Plaintiff’s limitations would be able to

perform work available in significant numbers in the national economy, including housekeeping

cleaner, commercial cleaner, and hand packager. The ALJ concluded that Plaintiff was not

under a disability under the Act and not entitled to benefits. The ALJ’s decision became the final

determination of the Commissioner when the Appeals Council denied Plaintiff’s request to

review the ALJ’s decision.

Plaintiff sought judicial review of the Commissioner’s decision. He filed a motion to

supplement the record, R. 15, which included his affidavit about his military service and

pertinent medical records, along with exhibits, R. 15-1, ID# 1054-91, and a copy of a decision of

the Department of Veteran Affairs granting him a 60% disability for peptic ulcer, R. 15-2, ID#

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1092-98. The district court granted the motion to supplement. Plaintiff then filed a motion to

remand pursuant to “sentence six” of § 405(g), based on the following items: (1) a January 20,

2015 study by Baylor University linking Gulf War Illness and a veteran’s gene markers; (2) a

September 22, 2014 Gulf War Research Advisory Committee’s Report on Gulf War Illness;

(3) Social Security Ruling (SSR) 14-1p, “Titles II and XVI: Evaluating cases Involving Chronic

Fatigue Syndrome,” effective April 3, 2014, replacing SSR 99-2p; and (4) the May 9, 2013

Department of Veterans Affairs Disability Rating Decision.1

The magistrate judge recommended that the court deny Plaintiff’s motion to remand and

affirm the Commissioner’s decision that Plaintiff is not disabled. Plaintiff filed objections to the

magistrate’s report and recommendation. The district court overruled Plaintiff’s objections,

adopted the magistrate’s report, and affirmed the Commissioner’s decision. Specifically, the

district court found that none of the evidence submitted by Plaintiff met the materiality

requirement for a sentence-six remand—that is, Plaintiff did not show that there was a

reasonable probability that the Commissioner would have reached a different disposition of his

disability claim had the ALJ been presented with new evidence or reviewed the claim pursuant to

SSR 14-1p.

II.

This court reviews a district court’s decision in a social security case de novo. Valley v.

Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). “The findings of the Commissioner of

Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”

42 U.S.C. § 405(g). “Substantial evidence” means “such relevant evidence as a reasonable mind

1
Plaintiff does not ask this court to consider the disability rating decision on appeal, or otherwise address
the fifth ground listed in his motion for remand. See R. 16, ID# 1101.

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might accept to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

We are limited to determining whether the Commissioner’s decision is supported by substantial

evidence and was made pursuant to proper legal standards. Rogers v. Comm’r of Soc. Sec., 486

F.3d 234, 241 (6th Cir. 2007).

Under the Social Security Act, “disability” is defined as the inability “to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. § 404.1505. The claimant bears the burden of proving that he has an

impairment that is expected to result in death or last continuously for a year and that is so severe

that it prevents him from performing any work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B);

20 C.F.R. § 404.1512(a). This burden includes supplying medical evidence that substantiates the

claim of disability. See 20 C.F.R. § 404.1512(a); Bowen v. Yuckert, 482 U.S. 137, 146 & n.5

(1987); Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456, 459 (6th Cir. 2008). The well-

established five-step sequential analysis found in 20 C.F.R. § 404.1520 applies. First, the

Commissioner determines whether the claimant is performing substantial gainful activity. If not,

the Commissioner next decides whether the claimant has any severe impairments. If so, the

Commissioner proceeds to step three, and determines whether any of these severe impairments,

singly or in combination, meets or medically equals an impairment listed at 20 C.F.R. pt. 404,

subpt. P, app. 1 or 20 C.F.R. § 404.1520(a)(4)(iii). If not, the Commissioner considers at step

four the claimant’s RFC and whether the claimant can perform past relevant work. If the answer

is yes, the Commissioner must decide if there exists any other work the claimant can perform,

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based on the claimant’s RFC, age, education and work experience. 20 C.F.R.

§ 404.1520(a)(4)(i)-(v).

Plaintiff presents three issues on appeal: (1) Whether substantial evidence supports the

ALJ’s determination at step two of the sequential evaluation process; (2) whether remand is

required for consideration of Plaintiff’s claim pursuant to SSR 14-1p; and (3) whether remand is

required pursuant to sentence six of 42 U.S.C. § 405(g) for consideration of documents

submitted to the district court. We address each in turn.

A.

First, Plaintiff claims that the ALJ erred at step two of the sequential-evaluation process

because he failed to consider whether Plaintiff’s chronic fatigue syndrome (CFS) was a severe

impairment. But, as the Commissioner points out, Plaintiff did not make this argument in the

district court—not in his motion to remand, see R. 16, ID# 1099-11152, not in his motion to

supplement the record, see R. 15, ID# 1044-53, and not in his objections to the magistrate’s

report and recommendation, see R. 19, ID# 1162-68. Plaintiff did not complain about the ALJ’s

consideration of the evidence at the hearing level, or request remand based on the ALJ’s

evaluation of the evidence before him, as the magistrate judge expressly noted in his report and

recommendation. See R. 18, ID# 1158. Thus, this argument is forfeited. See Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 513 (6th Cir. 2010) (declining to review arguments presented for the

first time on appeal); see also Thomas v. Arn, 474 U.S. 140, 147-48 (1985) (failing to object to

magistrate’s report and recommendation precludes review on appeal).

2
In the memorandum in support of his motion to remand, Plaintiff asserts merely that his “doctor’s
diagnosis of chronic fatigue syndrome” and other ailments “remain uncontradicted on the record,” R. 16, ID# 1101.

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No. 16-3560, Montecalvo v. Comm’r of Social Security

Even if it had been preserved for review, it would fail because the ALJ’s determination at

step two was supported by substantial evidence. In his 2011 application, Plaintiff did not allege

that CFS was among the impairments that caused him to be disabled. See R. 13, ID# 236. The

record does not contain any treatment records for CFS, nor any opinions regarding any

limitations from CFS. Nonetheless, the ALJ questioned Plaintiff about his claims of fatigue at

the hearing, see R. 13, ID# 106-08, and addressed the claims in his decision, see R. 13, ID# 72-

85. The ALJ specifically noted that Plaintiff’s treating physician, Dr. Ramamurthy Alam, M.D.,

indicated that Plaintiff was diagnosed with IBS that would flare up and cause fatigue. R. 13, ID#

78. The ALJ also noted Plaintiff’s pain-report claim that he had stomach pain and fatigue due to

flare-ups from his ulcer and IBS and that he sometimes needed to go to the bathroom seven times

a day, causing fatigue. R. 13, ID# 77. The ALJ acknowledged that Plaintiff’s consultative-

examination report reflected Plaintiff’s complaint that he slept too much. R. 13, ID# 82.

Nevertheless, as the ALJ found, there is no record evidence establishing that Plaintiff told

his doctors about his chronic fatigue. In fact, as the ALJ found, treatment revealed that Plaintiff

was very active—playing basketball, exercising three to four hours a day, lifting weights,

staining a house, taking trips to Tennessee and North Carolina, and performing the normal

activities of daily living. See R. 13, ID# 81, 393, 396, 400, 406, 461-65, 472, 503, 873, 897-900,

936-38, 986. Plaintiff relies on two letters from Dr. Alam, dated April 2008 and June 2013,

R. 13, ID# 336, 1041, which indicate Dr. Alam’s belief that Plaintiff has IBS, gastroesophageal

reflux disease [GERD], and CFS.3 Plaintiff claims that the letter required the ALJ to consider

whether CFS was a severe impairment. But Dr. Alam’s treatment notes do not indicate that

Plaintiff has CFS. Although Plaintiff complained of tiredness in March 2006 (prior to his alleged

3
On November 1, 2010, Dr. Alam issued another “To Whom It May Concern” letter that listed Plaintiff’s
impairments at “recurrent IBS and depression as a result of PTSS” but not CFS. R. 13, ID# 335.

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No. 16-3560, Montecalvo v. Comm’r of Social Security

onset date and while he was still working), Dr. Alam diagnosed anxiety and prescribed Lexapro.

R. 13, ID# 855. In any event, the letters are not medical opinions because they do not discuss

functional limitations, see 20 C.F.R. § 404.1527(a)(2), and are therefore not entitled to deference

by the ALJ, see Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 n.3 (6th Cir. 2009) (noting that

statements that do not address the specific extent of limitations “appear to be outside the scope of

‘medical opinions’ as defined in 20 C.F.R. § 404.1527(a)(2)”).

The cases Plaintiff cites in support are distinguishable. In Vega v. Comm’r of Soc. Sec.,

265 F.3d 1214, 1219-20 (11th Cir. 2001), and Rose v. Shalala, 34 F.3d 13, 15-18 (1st Cir. 1994),

there was credible record evidence of functional limitations related to CFS that the ALJ failed to

include in hypothetical examples to the VE. Jockish v. Colvin, No. 5:15-CV-05011-KES, 2016

WL 1181680 (D. S.D. Mar. 25, 2016), is distinguishable because, unlike Plaintiff, the claimant

was pro se, alleged CFS in his application for benefits, and his physicians constantly diagnosed

and treated him for CFS. The claimant in Wellenstein v. Colvin, No. C 14-4043-MWB, 2015

WL 5734438 (N.D. Iowa Sept. 30, 2015), was also pro se, and the record contained evidence that

a medical doctor had diagnosed the claimant with CFS, which the ALJ ignored. See id. at *7-9

(noting that treating doctor’s letter stated that the claimant had been diagnosed with CFS by a

prior provider). Furthermore, the “bulk” of the claimant’s testimony in that case was that she

could not work because she slept too much. Id. at *8-9. Thus, the district court remanded to the

ALJ for further development of the record regarding the claimant’s CFS. Id. at *9. In this case,

the ALJ questioned Plaintiff about his fatigue at the hearing and discussed the evidence of

fatigue in his decision. R. 13, ID# 77-79, 82, 106-07.

Finally, contrary to Plaintiff’s argument, the ALJ was not required to incorporate

limitations related to CFS into the hypothetical examples posted to the VE because the ALJ did

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not credit Plaintiff’s claims that he suffered work-related limitations due to fatigue. See Spicer v.

Comm’r of Soc. Sec., 651 F. App’x 491, 494 (6th Cir. 2016) (“It is well established that an ALJ

may pose hypothetical questions to a vocational expert and is required to incorporate only those

limitations accepted as credible by the finder of fact.”); Casey v. Sec’y of HHS, 987 F.2d 1230,

1235 (6th Cir. 1993) (per curiam) (same).

B.

Second, Plaintiff argues that his case must be remanded for consideration under SSR 14-

1p: Evaluating Cases Involving Chronic Fatigue Syndrome. SSR 14-1p became effective April

2, 2014, replacing SSR 99-2p. See SSR 14-1p, 79 Fed. Reg. 18752 (Apr. 3, 2014).4 Plaintiff

asserts that the SSR 14-1p “no longer requires claimants to show medically determinable proof

of the Chronic Fatigue Syndrome impairment” because “the traditional MDI proof requirement is

illusive in” CFS. Appellant’s Br. at 29-30, ID# 34-35.

This is not a correct reading of SSR 14-1p, which “clarifies [SSA’s] policy on how we

develop evidence to establish that a person has a medically determinable impairment (MDI) of

CFS and how we evaluate this impairment in disability claims . . . .” None of the passages

Plaintiff cites in support of his argument demonstrate the policy change posited by Plaintiff.

Instead, much of the language simply reworks the text of SSR 99-2p, as the Commissioner

illustrates in his appellate brief at page 37. Importantly, the new regulation still requires that

CFS be established by “appropriate medical signs or laboratory findings.” Plaintiff quotes the

following passage in support: “We will find that a person has an MDI of CFS if a licensed

physician diagnosed CFS, and this diagnosis is not inconsistent with the other evidence in the

4
Clarifying regulations are retroactive. See Pope v. Shalala, 998 F.2d 473, 482–86 (7th Cir. 1993),
overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999).

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person’s case record.” That sentence must be read and understood in the context of its

surroundings:

A. General.
1. A person can establish that he or she has an MDI of CFS by providing
appropriate evidence from an acceptable medical source. A licensed physician (a
medical or osteopathic doctor) is the only acceptable medical source who can
provide such evidence. We cannot rely upon the physician’s diagnosis alone. The
evidence must document that the physician reviewed the person's medical history
and conducted a physical exam. We will review the physician's treatment notes to
see if they are consistent with the diagnosis of CFS . . . .
2. We will find that a person has an MDI of CFS if a licensed physician diagnosed
CFS, and this diagnosis is not inconsistent with the other evidence in the person's
case record. Under the CDC case definition, a physician can make the diagnosis
of CFS based on a person’s reported symptoms alone after ruling out other
possible causes for the person's symptoms. However, as mentioned, statutory and
regulatory provisions require that, for evaluation of claims of disability under the
Act, there must also be medical signs or laboratory findings before we may find
that a person has an MDI of CFS. If we cannot find that the person has an MDI of
CFS but there is evidence of another MDI, we will not evaluate the impairment
under this SSR. Instead, we will evaluate it under the rules that apply for that
impairment.
SSR 14-1p (emphases added; footnotes omitted).

Dr. Alam’s opinion and Plaintiff’s subjective complaints do not meet this standard.

Dr. Alam did not provide a medical opinion regarding Plaintiff’s CFS, did not address the

severity of Plaintiff’s alleged CFS, did not indicate any limitations due to CFS, and did not

discuss any clinical findings establishing CFS. His treatment notes do not provide any insight

into the nature, severity, or resulting limitations either. For the same reasons stated above,

Jockish does not help his argument. In short, Plaintiff has failed to provide support for his claim

that consideration under SSR 14-1p would likely change the outcome of his claim.

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C.

Third, Plaintiff argues that he is entitled to a “sentence six” remand under § 405(g). See

42 U.S.C. § 405(g) (“The court . . . may at any time order additional evidence to be taken before

the Commissioner . . . , 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 . . .”.). To obtain a remand, the claimant must show that the evidence is “new,”

“material,” and that there was good cause for failure to present it at the hearing. Ferguson v.

Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010). Only “materiality” is at issue here. To

demonstrate materiality, Plaintiff must show that “there was a reasonable probability that the

Secretary would have reached a different disposition of the disability claim if presented with the

new evidence.” Sizemore v. Sec’y of HHS, 865 F.2d 709, 711 (6th Cir. 1988).

Plaintiff claims that the following evidence requires the remand: (1) a January 20, 2015

Baylor University study finding a link between Gulf War illness and gene markers, (2) a

September 22, 2014 Research Advisory Committee report on Gulf War Veterans’ Illness study,

entitled “Health of Gulf War Veterans: Research Update and Recommendations,” (3) an affidavit

from Plaintiff about his military service, and (4) medical records dated 1992 to 1999 allegedly

maintained by Plaintiff’s employer, Delphi Packard Electric.

As the district court found, Plaintiff failed to demonstrate how any of these documents

are material to his claim. Regarding the Baylor University study, he failed to explain how the

study was relevant to his gene markers. He also failed to explain how the Research Advisory

Committee study bears on his disability claim. And he has never been diagnosed with Gulf War

illness. In short, he does not explain how the articles affect the ALJ’s findings.

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Plaintiff asserts that the lower court “missed the point” of the Baylor study, “which was

to show that now there is empirical proof that those affected from exposure to toxic war

chemicals from the Gulf War are indeed physically ill, and their peculiar illness is now

connected to their own individual genetic makeup.” Appellant’s Br. at 29. But this evidence

does not relate to Plaintiff personally, so it could not possibly have changed the result of the

administrative proceeding. This is still true under SSR 14-1p, which retains the requirement that

a claimant demonstrate CFS by medical evidence consisting of medical signs, symptoms, and

laboratory findings. Plaintiff fails to reference medical records to support his position, and fails

to explain how the new SSR ruling standard would have affected the assessment of the severity

of his symptoms, or imposed additional limitations on his ability to perform work. His

subjective claims are not sufficient under the new standard and do not require a remand. In

short, none of the documents meet the requirements for a sentence-six remand.

III.

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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