United States District Court, W.D. Kentucky, Paducah Division
B. Russell, Senior Judge.
Susan Kay Dillon brought this action pursuant to 42 U.S.C.
§ 405(g) to obtain judicial review of the Commissioner
of Social Security’s decision to deny her claim for
Social Security disability benefits. [DN 1]. The Court
referred the action to the Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. § 636. [DN 7]. The
Magistrate Judge recommended that the Court affirm the
Commissioner’s final decision and dismiss
Dillon’s Complaint. [DN 39]. Subsequently, Dillon filed
an Objection to the Magistrate Judge’s Findings of Fact
and Conclusions of Law and Recommendation, [DN 40], and the
Commissioner responded, [DN 42]. Having reviewed the
Administrative Record, the parties’ submissions, and
the applicable law, the Court will ADOPT the Magistrate
Judge’s Report and Recommendation
(“R&R”) [DN 39], and OVERRULE Dillon’s
Objection, [DN 40]. The Court will enter a separate Order and
Judgment consistent with this Memorandum Opinion.
14, 2014, Dillon filed a Title II application for disability
insurance benefits. [DN 31-1 at 684]. After this claim was
denied at the administrative level, Dillon was granted a
hearing in front of an Administrative Law Judge
(“ALJ”) on February 11, 2016. Id. at
685. The ALJ denied Dillon’s claim in a decision dated
March 25, 2016. Id. at 695. Using the traditional
five-step evaluation for disability benefits, see 20 C.F.R.
§ 404.1520(a)(4), the ALJ made the following findings:
First, Dillon had not engaged in substantial gainful activity
since February 21, 2014. [DN 27-2 at 132]. Second, Dillon has
the following severe impairments: fibromyalgia, obesity,
depression, and anxiety. Id. Third, Dillon’s
impairments do not satisfy the clinical criteria of any
impairment listed in Appendix 1 of the regulations.
Id. at 133. Fourth, Dillon has the residual
functional capacity (“RFC”) to perform light
work, but she is not capable of performing past relevant
work. Id. at 134, 140. Finally, the ALJ concluded
that Dillon was not disabled because she retains the ability
to perform a significant No. of unskilled, sedentary jobs.
Id. at 141.
April 28, 2017, the Appeals Council denied Dillon’s
request for review of the ALJ’s decision. [DN 38 at
716]. Dillon then filed a Complaint with this Court for
judicial review of the Commissioner’s decision to deny
her claim for Social Security disability benefits. [DN 1].
well-settled that the Court reviews the objected-to portions
of a report and recommendation de novo. 28 U.S.C. §
636(b)(1); see also Fed.R.Civ.P. 72(b). Its review of the
Commissioner’s determination is, of course, more
deferential. See 42 U.S.C. § 405(g); Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009). The scope of that inquiry is limited to (1)
“whether the findings of the ALJ are supported by
substantial evidence” and (2) “whether the ALJ
applied the correct legal standards.” Miller v.
Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir.
2016) (quoting Blakley, 581 F.3d at 405–06).
“Substantial evidence is defined as ‘more than a
scintilla of evidence but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). “When substantial evidence supports an
ALJ’s decision, we affirm even if we would have decided
differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983) (per curiam), and even if
substantial evidence also supports the opposite conclusion,
see Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986) (en banc).” Francis v. Comm’r Soc. Sec.
Admin., 414 F.App'x 802, 805 (6th Cir. 2011).
“[H]owever, ‘a decision of the Commissioner will
not be upheld where the [Social Security Administration]
fails to follow its own regulations and where that error
prejudices a claimant on the merits or deprives the claimant
of a substantial right.’”Rabbers v.
Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir.
2009) (quoting Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 746 (6th Cir. 2007)).
recited above, the scope of this Court’s inquiry is
limited to (1) “whether the findings of the ALJ are
supported by substantial evidence” and (2)
“whether the ALJ applied the correct legal
standards.” Miller, 811 F.3d at 833. Thus, the Court
will address the arguments of Dillon’s Objection as
they apply within this inquiry. First, Dillon contends that
the Magistrate Judge’s misidentification of Dr. Monte
Rommelman as a psychiatrist affects the weight given to his
report regarding Dillon’s physical limitations. [DN 40
at 745]. Second, Dillon asserts that Dr. Rommelman’s
RFC is material to the disability determination. Id.
at 747. Finally, Dillon argues that her inability to work due
to inattentiveness and drowsiness were “grossly
underappreciated” by the ALJ. Id. at 749. The
Court will address each argument in turn.
Misidentification of Dr. Rommelman
Dillon asserts that the Magistrate Judge’s
misidentification of Dr. Rommelman as a psychiatrist, rather
than a physiatrist, affected the weight the Court should have
given his RFC. Id. at 745. Specifically, Dillon
argues that while a psychiatrist specializes in mental
health, physiatrists treat a wide variety of medical
conditions affecting the brain, spinal cord, nerves, bones,
and joints. Id. at 746. Given that Dillon’s
conditions are neurological and musculoskeletal, she claims a
physiatrist’s opinion should be given more weight than
a psychiatrist’s opinion. Id.
R&R, the Magistrate Judge briefly identifies Dr.
Rommelman as “Plaintiff’s treating
psychiatrist.” [DN 39 at 736]. Whether Dr. Rommelman is
a psychiatrist or a physiatrist had no real effect on the
Magistrate Judge’s findings. Rather, he rejected
Dillon’s contention that the ALJ’s decision was
unsupported considering Dr. Rommelman’s RFC on the
basis that it was new evidence submitted after the
ALJ’s decision. Id. at 738. As will be
discussed below, Dillon was required to show that the new
evidence was material to the ALJ’s decision and that
there was good cause for the failure to incorporate it into
the record during the prior proceeding. Since Dillon failed
to allege both materiality and good cause, the Magistrate
Judge rejected her argument. Id. Accordingly, the
Court fails to see how the Magistrate Judge’s
misidentification of Dr. Rommelman as a psychiatrist would
constitute anything but harmless error. See Brunner v.
Berryhill, No. 3:15-CV-00907-TBR, 2017 WL 658843, at *6
(W.D. Ky. Feb. 17, 2017). Thus, Dillon’s objection is
Materiality of Dr. Rommelman’s RFC
second objection involves the materiality of Dr.
Rommelman’s RFC. [DN 40 at 747]. After the ALJ’s
final decision was issued in March 2016, Dr. Rommelman
completed an RFC based on Dillon’s primary diagnosis of
fibromyalgia. [DN 27-7 at 671–76]. Dillon then filed
the current action, arguing in part, that the ALJ’s
decision to deny her disability claim was unsupported in
light of Dr. Rommelman’s new assessment. [DN 1 at 686].
However, this argument is without merit. “Only evidence
in the record below can be considered when determining
whether or not the ALJ’s opinion was supported by
substantial evidence.” Bass v. McMahon, 499
F.3d 506, 512–13 (6th Cir. 2007). “The only
method to have new evidence considered is to ask for a
sentence six remand under 42 ...