Mark Diamond v. Commissioner of Social Security

*The Honorable James G. Carr, Chief United States District Judge for the Northern District of Ohio, sitting by
designation.
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0901n.06
Filed: November 16, 2005
No. 05-5012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARK DIAMOND,
Plaintiff-Appellee,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
OPINION
Before: GILMAN and COOK, Circuit Judges; and CARR, District Judge.*
RONALD LEE GILMAN, CIRCUIT JUDGE. Mark Diamond appeals the denial of his
application for disability insurance benefits (DIB) and Supplemental Security Income (SSI) under
the Social Security Act (Act). Diamond was 31 years old and a former fast-food restaurant cook
when he was diagnosed with a variety of heart ailments in 1999. Until that time, Diamond had been
a heavy smoker and drank multiple cans of beer per day. After an administrative law judge (ALJ)
denied his application and the Appeals Council concurred, Diamond appealed to the district court,
which granted summary judgment in favor of the Commissioner of Social Security (Commissioner).
For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND

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A. Medical and psychological history
Diamond’s medical and psychological history is spread over 700 pages of the Administrative
Record in this case. The following is a summary of the most relevant points.
On July 28, 1999, Diamond was treated for right-side abdominal pain at the King’s
Daughters Medical Center in Ashland, Kentucky. Diamond was later admitted for a cardiac
catheterization procedure in early August of that year after complaining of fatigue and edema in his
legs. He was diagnosed with alcoholic cardiomyopathy and related heart ailments, as well as
potential liver problems. Diamond told the doctors who treated him that he smoked 1½ packs of
cigarettes and drank between 8 and 12 cans of beer per day. Tests revealed that Diamond’s “ejection
fraction”—a number used to measure the functioning of the blood-pumping left ventricle—was
25%. A normal ejection fraction is greater than 55%, and an ejection fraction of below 30%, when
accompanied by other symptoms, qualifies as a presumptive disability under the Act. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 4.02B (2005). After the initial tests, Dr. Rhonda Ross, the physician
who initially treated Diamond, declared him to be “disabled” and ordered him to refrain from
smoking and from consuming alcohol.
Diamond’s physical condition began to improve within weeks after the initial tests. By
August 30, 1999, he reported feeling very well and told the hospital staff that he did not tire easily
and was walking a mile each day. His cardiologist, Dr. Richard Paulus, opined in a November 15,
1999 letter that Diamond was “doing substantially better.” Although subsequent tests revealed that
Diamond’s ejection fraction had declined to as low as 15%, that measurement improved to 33% in
March of 2000, 52% by August of 2001, and remained in the 45 to 50% range in December of 2001.

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Dr. Paulus noted Diamond’s overall improvement throughout this period, emphasizing his increased
energy, the absence of shortness of breath and chest pains, and Diamond’s acknowledgment that he
was “doing very well and [was] walking his dog, etc.” Nevertheless, when Dr. Paulus was asked
by Diamond’s attorney in March of 2001 whether Diamond’s condition met or equaled any
impairment that qualified as a listed disability, Dr. Paulus wrote in, “yes, [c]ardiomyopathy.”
Despite the steady improvement in his physical condition, Diamond began to suffer from
depression and anxiety related to the early onset of congestive heart failure. His doctors initially
responded by teaching him relaxation techniques and encouraging him to “reframe his life” to cope
with the diagnosis. Dr. Ross eventually prescribed medication for his depression and to help him
quit smoking, but Diamond admitted that he took the medication for only a short time. A
psychological evaluation conducted in June of 2001 confirmed that Diamond was suffering from
depression, anxiety, and dependent traits, and further noted that he was recovering from alcohol
dependency. Outpatient therapy was the recommended course of treatment, and no psychoactive
medication was prescribed.
In March of 2002, Dr. William Lynne, a certified psychologist, examined Diamond. Dr.
Lynne reviewed Diamond’s academic performance and his scores on an IQ test. Diamond was
diagnosed with borderline intellectual functioning (BIF), which placed him just above the category
of mental retardation. Despite the BIF and Diamond’s occasional placement in special education
courses during high school, Dr. Lynne found only “mild-moderate” limitations on Diamond’s ability
to concentrate and pay attention. Dr. Lynne described Diamond as “cognitively capable [of]

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understanding simple instructions and work routines.” Diamond’s mental condition, Dr. Lynne
concluded, would moderately limit his ability to adapt and to deal with stressful situations.
Two other doctors evaluated Diamond’s overall physical condition in 2002. First, in March
of that year, Dr. Mark Carter conducted a consultative examination, after which he opined that
Diamond would be “significantly restricted from strenuous activity.” He placed restrictions on the
temperature and humidity to which Diamond should be subjected in the workplace. Dr. Carter
conceded, however, that he had not reviewed Diamond’s medical records. In August of 2002, Dr.
Cindy Pinson, one of Diamond’s treating physicians, completed a form titled “Medical Assessment
of Ability to Do Work-Related Activities.” Dr. Pinson concluded that Diamond could stand and
walk for no more than three hours of an eight-hour day, but that he faced no such limitation on his
ability to work while seated. She also found that Diamond was able to lift weights of five or ten
pounds “frequently,” and that he would require environmental limitations similar to those
recommended previously by Dr. Carter.
B. Administrative proceedings
Diamond applied for DIB and SSI in August of 1999. His claims were denied at the lower
administrative levels. Represented by counsel, Diamond then requested a hearing. An ALJ
conducted the hearing in June of 2001, taking testimony from Diamond, Dr. Robert Marshall, and
Casey Vass, a vocational expert (VE). Dr. Marshall, a medical expert retained by the government,
testified that he could not agree with Dr. Paulus’s apparent conclusion that Diamond’s heart
condition met or equaled the criteria set out in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.02. Relying
on Dr. Paulus’s office notes and Diamond’s medical records, Dr. Marshall explained that the low

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ejection fraction that Diamond initially demonstrated was not by itself sufficient to meet the
applicable listings. Instead, “there have to be associated symptoms, such as shortness of breath at
rest, a positive stress test, [or] persistent congestive heart failure.” Because Dr. Paulus’s office notes
did not indicate any of the additional symptoms associated with a low ejection fraction, Dr. Marshall
concluded that Diamond’s cardiomyopathy did not meet or equal any of the listed impairments. Dr.
Marshall did acknowledge, however, that Diamond’s ability to work would be significantly
restricted by his physical and mental conditions.
In June of 2001, the ALJ denied Diamond’s application for DIB, but did not rule on his SSI
application. Diamond filed a second application for DIB and SSI one month later. Meanwhile, the
Appeals Council vacated the ALJ’s initial decision denying benefits, consolidated Diamond’s two
applications, and remanded the case to a different ALJ. The second ALJ conducted a new hearing
in August of 2002. Diamond and a different VE, Leah Salyers, both testified at the hearing, during
which the ALJ asked Salyers, in the form of a hypothetical, whether there were any jobs in the
national or regional economy available to someone with Diamond’s limitations. The ALJ described
the relevant characteristics as (1) a residual functional capacity (RFC) to perform sedentary work;
(2) environmental restrictions; and (3) limitations on Diamond’s ability to perform certain physical
tasks, to understand and carry out detailed instructions, and to adapt to changes in the workplace.
Salyers identified at least three positions that met the ALJ’s criteria—production inspector,
surveillance system monitor, and production grader, sorter, or selector—and provided estimates of
how many such positions would be available at the regional and national levels. At the same time,

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Salyers acknowledged that no positions would be available if Diamond’s own account of his
condition was accepted as accurate.
The ALJ evaluated Diamond’s claim in accordance with the five-step analysis mandated by
federal regulations. See 20 C.F.R. §§ 404.1520, 416.920 (2005); Heston v. Comm’r of Soc. Sec., 245
F.3d 528, 534 (6th Cir. 2001). At step one, the ALJ found that Diamond had not engaged in
“substantial gainful activity” since the onset of his heart disease. For the second and third steps, the
ALJ adopted the factual findings of the previous ALJ, concluding that Diamond suffered from
severe heart disease, but that his condition did not meet or equal a listed impairment for the required
12-month period. The ALJ then performed the mandatory RFC calculation and found that Diamond
was capable of performing sedentary work under specific environmental restrictions, and that
Diamond had the ability to understand and carry out simple instructions and tolerate workplace
changes and a low-stress atmosphere. Applying these findings to the information provided by the
VE, the ALJ concluded that Diamond could not perform his past jobs, but could work as a
production inspector, a surveillance system monitor, or a production grader, sorter, or selector.
Because Diamond was deemed able to engage in a substantial gainful activity, he was found not to
be disabled.
C. District court proceedings
After the Appeals Council rejected Diamond’s appeal and adopted the decision of the ALJ
as the Commissioner’s final decision, Diamond sought judicial review pursuant to 42 U.S.C.
§ 405(g). The district court struggled to “decipher” the grounds for Diamond’s appeal, finally
construing his submission as a challenge to the ALJ’s alleged failure to consider the findings of Dr.

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Lynne when posing the hypothetical to VE Salyers. Rejecting Diamond’s contention, the court
found that the ALJ had considered Dr. Lynne’s report and had included the report’s “findings of
mild to moderate limitations in mental functioning” in the ALJ’s hypothetical question to VE
Salyers. The district court then granted summary judgment in favor of the Commissioner. This
timely appeal followed.
II. ANALYSIS
A. Standard of review
We will uphold the Commissioner’s decision if it is supported by substantial evidence and
if the Commissioner applied the correct legal criteria. See 42 U.S.C. § 405(g); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984) (reviewing the Commissioner’s decision “to determin[e] whether
the findings of fact . . . are supported by substantial evidence and . . . whether the [Commissioner]
employed the proper legal criteria in reaching her conclusion”). Substantial evidence is defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Heston, 245 F.3d at 534 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). When
reviewing the Commissioner’s decision, the court “may not try the case de novo, nor resolve
conflicts in evidence, nor decide questions of credibility.” Garner, 745 F.2d at 387; see also Foster
v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (noting that the court should defer to the agency’s
decision if it is supported by substantial evidence, “even if there is substantial evidence in the record
that would have supported an opposite conclusion”) (quoting Key v. Callahan, 109 F.3d 270, 273
(6th Cir. 1997)).
B. Diamond has waived most of his challenges to the ALJ’s decision

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The Commissioner first contends that we should not consider challenges to the ALJ’s
decision that Diamond did not present to the district court. See Barner v. Pilkington N. Am., 399
F.3d 745, 749 (6th Cir. 2005) (reciting the “well-settled” rule that “this court will not consider an
error or issue which could have been raised below but was not”) (citation omitted). This court has
repeatedly applied this waiver rule in the Social Security context. See, e.g., Hall v. Comm’r of Soc.
Sec., No. 04-5572, 2005 WL 2139890, at *4 (6th Cir. Sept. 2, 2005) (unpublished) (refusing to
consider an allegation that the ALJ’s decision was not supported by substantial evidence where the
claimant failed to make that challenge before the district court); Young v. Sec. of Health & Human
Servs., 925 F.2d 146, 149 (6th Cir. 1990) (refusing to evaluate the challenge of a claimant who
attributed her allegedly disabling back pain to a cause different from the one that she had argued to
the district court).
Diamond’s summary judgment motion before the district court, though principally a series
of unexplained citations to the administrative record, appeared to challenge the substance of the
hypothetical that the ALJ posed to the VE. Specifically, Diamond alleged that the ALJ failed to
incorporate into his hypothetical the assessment by Dr. Lynne of Diamond’s mental capacity. On
appeal, however, Diamond opens his brief by asking this court to consider a series of arguments that
he made when requesting review by the Appeals Council, arguments that reach well beyond the
scope of the single issue decided by the district court. Even if we were to apply the most “liberal
construction” to Diamond’s inartful submission to the district court, White v. Anchor Motor Freight,
Inc., 899 F.2d 555, 559 (6th Cir. 1990), the summary judgment motion cannot fairly be read as
raising the diverse challenges to the ALJ’s decision that Diamond made before the Appeals Council.

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See id. (emphasizing that this court reviews “the case presented to the district court rather than a
better case fashioned after the district court’s order”) (quoting Adams v. James, 784 F.2d 1077, 1080
(11th Cir. 1986)). Because Diamond failed to present to the district court all but one substantive
challenge to the ALJ’s decision, he has waived those challenges on appeal.
C. The ALJ’s hypothetical properly incorporated relevant psychological
information and the ALJ’s own credibility determination
This leaves us with the one argument that Diamond presented to the district court regarding
the hypothetical that the ALJ posed to the VE. Although Diamond’s appellate brief does not
explicitly dispute the district court’s ruling on the propriety of the ALJ’s hypothetical, his prior
submissions to the Appeals Council appear to challenge the ALJ’s overall handling of the mental
and psychological information, and we will therefore treat this challenge as properly presented on
appeal. Nonetheless, we agree with the district court that the ALJ directly incorporated the
information provided by Diamond’s physicians and by Dr. Lynne into the hypothetical posed to the
VE and later discussed in the ALJ’s decision. This information led the ALJ to conclude that
Diamond’s mental and psychological impairments were “severe,” a determination more favorable
to Diamond than the one made by the prior ALJ. Even so, the ALJ ultimately concluded that
Diamond could engage in gainful activity. This ultimate determination does not imply that the ALJ
disregarded the data or testimony concerning Diamond’s mental and emotional limitations.
The ALJ also properly incorporated his evaluation of Diamond’s credibility into the
hypothetical posed to VE Salyers. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir.
2003) (noting that “the ALJ can present a hypothetical to the VE on the basis of his own assessment

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if he reasonably deems the claimant’s testimony to be inaccurate”). Diamond’s credibility was
“poor,” according to the ALJ, because Diamond had contradicted himself during his testimony—by
alleging that he had could barely read, but then admitting that he followed NASCAR and other
sports by reading the newspaper—and because his own doctors had refused to accept some of the
physical limitations that he claimed to suffer.
These inconsistencies justified the ALJ’s reluctance to fully accept Diamond’s own account
of his condition. See Heston, 245 F.3d at 536 (upholding an ALJ’s credibility finding that was based
on the claimant’s ability to perform tasks inconsistent with her alleged medical condition). And
because he had reason to doubt Diamond’s credibility, the ALJ justifiably concluded at step five that
Diamond was capable of engaging in a substantial gainful activity, a conclusion that hinged on
whether Diamond’s account of his physical and mental limitations was credible. We will not
second-guess the ALJ’s credibility determination where the record reflects that the decision of the
ALJ to reject Diamond’s unsubstantiated restrictions is supported by substantial evidence. See id.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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