                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0219n.06

                                        Case No. 15-3907                               FILED
                                                                                  Apr 21, 2016
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


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




       BEFORE: GUY, BOGGS, and COOK, Circuit Judges.

       COOK, Circuit Judge. An Administrative Law Judge (ALJ) found Thomas Albert Graley

not disabled and therefore denied his application for disability-insurance benefits and

supplemental security income. Unmoved by Graley’s arguments that new and material evidence

required remand and that the ALJ’s decision lacked substantial evidence to support it, the district

court upheld the ALJ’s denial of benefits. We affirm.

                                                I.

       In March 2012, Graley applied for disability-insurance benefits and supplemental

security income, alleging disability beginning in October 2011. Following the denial of his

application initially and on reconsideration, Graley requested a hearing before an ALJ.
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Graley v. Commissioner of Social Security


       The ALJ applied the Social Security Administration’s familiar five-step test to determine

whether Graley was disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step two, the ALJ found

that Graley suffered from the following severe impairments: “degenerative disc disease of the

cervical spine; obstructive sleep apnea; headaches/migraines; diverticulitis; hypertension; left

shoulder degenerative joint disease; anxiety disorder . . . ; major depressive disorder; and

cannabis abuse.” Proceeding to step four, the ALJ concluded that Graley’s residual functional

capacity allowed him to perform light work, see 20 C.F.R. §§ 404.1567(b), 416.967(b), with

several limitations.   In reaching this conclusion, the ALJ found “the claimant’s statements

concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely

credi[ble].” At step five, the ALJ relied on the testimony of a vocational expert to find that

Graley could perform jobs that exist in significant numbers in the national economy so as to

render him “not disabled.”

       Graley appealed and submitted additional evidence: a new 100%-disability rating issued

by the Department of Veterans Affairs (VA) almost six months after the ALJ delivered her

decision in this case. The Appeals Council denied Graley’s request for review, making the

ALJ’s decision the Commissioner’s final decision. Sims v. Apfel, 530 U.S. 103, 107 (2000).

       Graley sued. Adopting a magistrate judge’s report and recommendation, the district court

upheld the ALJ’s decision, and later denied Graley’s motion to alter or amend the judgment.

Graley appeals.

                                              II.

       We review the ALJ’s factual findings for substantial evidence and her legal conclusions

de novo. McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); see also

42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla of evidence but less than a

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preponderance and is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” McClanahan, 474 F.3d at 833 (quoting Besaw v. Sec’y of Health &

Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992)). We will not reverse merely because

substantial evidence supports a different conclusion. Id. (quoting Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001)).

        On appeal Graley argues: (1) new and material evidence requires this court to remand

the case to the ALJ, (2) the ALJ’s credibility finding regarding the intensity and persistence of

Graley’s symptoms is not supported by substantial evidence, and (3) the ALJ asked the

vocational expert an incomplete hypothetical question.

       A. The VA’s New Disability Determination Warrants No Remand

       Sentence Six of 42 U.S.C. § 405(g) allows a court to remand a case to the Commissioner

to consider new and material evidence when good cause exists for the failure to incorporate the

new evidence into the record in a prior proceeding. Graley asserts that the VA’s decision finding

him 100% disabled meets this standard. Because Graley fails to demonstrate a “reasonable

probability that the [Commissioner] would have reached a different disposition of [his] disability

claim if presented” with the VA’s decision, he has not demonstrated materiality. Sizemore v.

Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988) (per curiam).

       To begin, “[t]he fact of a subsequent favorable assessment is not itself new and material

evidence under § 405(g); only the medical evidence that supported the favorable assessment can

establish a claimant’s right to a remand.” Deloge v. Comm’r of Soc. Sec., 540 F. App’x 517, 519

(6th Cir. 2013) (per curiam) (citing Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 653 (6th Cir.

2009)). Here, the VA notice that Graley submitted to the Appeals Council conveyed the VA’s



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decision to increase his disability rating to 100%, but cited no medical evidence to back that

decision. Graley therefore fails to demonstrate that the VA notice is material evidence.

        Graley attempts to evade this conclusion by arguing that “extensive records from the VA

medical centers” support the VA’s 100%-disability decision. He cites only the administrative

record before the ALJ in this case as support. “But remand under sentence six is not meant to

address the ‘correctness of the administrative determination’ made on the evidence already

before the initial ALJ.” Allen, 561 F.3d at 653 (quoting Melkonyan v. Sullivan, 501 U.S. 89, 98

(1991)).

        Next, Graley contends that because neither the Appeals Council nor the ALJ ever

considered his new VA disability rating, his case warrants remand. Yet the Appeals Council did

consider the VA disability rating Graley submitted and found that this information provided no

basis for changing the ALJ’s decision. (R. 11, Admin. R. (listing the VA decision as Exhibit

9F).)

        Graley also posits that our unpublished decision in LaRiccia v. Commissioner of Social

Security, 549 F. App’x 377 (6th Cir. 2013), compels remand. He contends that LaRiccia requires

the ALJ to “review . . . and consider[] . . . VA disability rating[s].” True enough. But in

LaRiccia we faulted an ALJ for failing properly to consider a VA decision available during

initial consideration. 549 F. App’x at 378, 388. Here, the VA’s 100%-disability decision

postdates the ALJ’s decision by almost six months. LaRiccia therefore wins Graley no remand.

        B. Substantial Evidence Supports the ALJ’s Credibility Finding

        Graley challenges three aspects of the ALJ’s finding that his testimony regarding the

intensity and persistence of his symptoms lacked credibility. See 20 C.F.R. §§ 404.1529(c)(1),

416.929(c)(1) (explaining that when medical impairments from which the claimant suffers could

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Graley v. Commissioner of Social Security


cause the symptoms alleged, the ALJ “evaluate[s] the intensity and persistence of [the

claimant’s] symptoms” to “determine how [those] symptoms limit [the claimant’s] capacity for

work”).

       First, Graley quibbles with the ALJ’s statement that to find him disabled “there must first

be objective medical evidence confirming the existence of a medically determinable impairment

and resulting limitations,” by suggesting that the ALJ’s finding of severe impairments at step two

contradicts this statement. But context matters. The ALJ acknowledged Graley’s impairments

both at step two and in determining whether those impairments could cause his symptoms. She

then made the criticized statement while rejecting Graley’s intensity-and-persistence testimony

for want of evidentiary support. Indeed, over the next four paragraphs of her decision the ALJ

elucidated why the medical evidence failed to support the severity of symptoms to which Graley

testified. Graley leaves that analysis unchallenged.

       Second, Graley argues that the record corroborates his complaints that it hurts him to

raise his arms and that he occasionally drops things, and the ALJ wrongly concluded otherwise.

But the records he cites provide no support. Some records opine on his good grip strength and

his shoulders’ acceptable range of motion, while others confirm his neck-and-shoulder-pain

complaints but remain silent on arm-raising pain. Regardless, the ALJ found that Graley was

limited to “occasional[] reach overhead with the non-dominate left upper extremity,” due to

Graley’s degenerative disc disease. Substantial evidence supports the ALJ’s finding regarding

Graley’s reaching ability.

       Third, Graley complains that the ALJ’s assessment of his daily activities misleads

because she omitted facts favorable to Graley—specifically, his reduced motivation to maintain

his hygiene and his inability to finish his classes during the spring of 2012. But the ALJ

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accurately recited Graley’s daily activities as he reported them. And his medical records reveal

that he appeared clean and presentable at his appointments. The ALJ also correctly observed that

Graley attended university classes, and while she perhaps should have included that Graley

“didn’t complete” his spring 2012 semester, we are unpersuaded that omitting this fact

undermines her evaluation of Graley’s daily activities in assessing the severity of his symptoms.

       Though Graley challenges no other specific aspect of the ALJ’s credibility assessment,

our review of the record confirms that substantial evidence supports her findings regarding the

intensity and persistence of Graley’s symptoms.

       C. The ALJ Asked the Vocational Expert an Appropriate Hypothetical Question

       Graley asserts that the ALJ asked the vocational expert a flawed hypothetical question

because that question failed to consider the VA’s 100%-disability decision and relied on the

ALJ’s “erroneous” credibility findings regarding the intensity of his symptoms. We have already

rejected these arguments. And because the ALJ’s hypothetical question included the limits that

she found credible, she could rely on the vocational expert’s testimony to support the finding that

Graley could perform jobs that exist in sufficient numbers in the economy. See Griffeth v.

Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007).

                                               III.

       For these reasons, we affirm.




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