Rogers v. SSA

Filing 15

MEMORANDUM OPINION & ORDER: (1) GRANTING pla's 10 MOTION for Summary Judgment; the motion is DENIED to the extent she seeks an award of benefits; (2) DENYING the Commissioner's 14 MOTION for Summary Judgment; (3) decision of Administrative Law Judge Bonnie Kittinger is REMANDED for further administrative proceedings consistent w/this opinion. Signed by Judge Danny C. Reeves on 6/19/17.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
LINDA ROGERS,

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Plaintiff,
V.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.
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Civil Action No. 5: 16-318-DCR

MEMORANDUM OPINION
AND ORDER

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Plaintiff Linda Rogers contends that the Administrative Law Judge (“ALJ”) assigned
to her case erred by denying her claim for Disability Insurance Benefits (“DIB”). Specifically,
she asserts that the ALJ failed to properly consider the opinion of her treating physician and
failed to account for her mental impairments in calculating her Residual Functional Capacity
(“RFC”). Rogers requests that the decision be reversed and a decision be entered awarding
benefits. In the alternative, she requests that her case be remanded for a new hearing. [Record
No. 10] The Commissioner of Social Security (“Commissioner”) contends that the ALJ
properly considered the evidence of record and that the ALJ’s decision should be affirmed.
[Record No. 14]
For the reasons discussed below, the claimant’s motion will be granted and this matter
will be remanded for further proceedings.

1

As of January 23, 2017, Nancy A. Berryhill is the Acting Commissioner of Social
Security, and is substituted as the defendant in this action pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure.
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I.
a.

Claim History

Rogers filed an application for DIB under Title II of the Social Security Act (“Act”) on
March 28, 2013. [Administrative Transcript, “Tr.,” at 149] The application alleged a disability
onset date of March 22, 2013. [Id.] The Social Security Administration (“SSA”) denied her
application initially and upon reconsideration.

[Tr. at 55, 69]

Rogers exhausted her

administrative remedies with an administrative hearing before an ALJ [Tr. at 26], a written
decision by the ALJ [Tr. at 11], and review by the Appeals Council [Tr. at 1]. Her case is ripe
for review pursuant to 42 U.S.C. § 405(g).
Rogers was 51 years old at the time of her application for benefits, and has a 10th grade
education. [Tr. at 31, 56] She has past relevant work experience as a cashier and stocker. [Tr.
at 44, 67] Rogers alleges that she was let go from her employment due to excessive absences
caused by her physical impairments. [Tr. at 36] Rogers lived with her daughter at the time of
the administrative hearing. [Tr. at 32]
Rogers contends that she is unable to work due to consistent back and hip pain, and
because of a panic disorder and depression. [Tr. at 33-34] She claims to be unable to drive
because it is hard for her to sit still for more than 15 to 20 minutes. [Tr. at 33] Rogers also
asserts that she is unable to stand for more than 15 to 20 minutes, at which point her back, left
leg, and left hip begin to hurt. [Tr. at 37] Rogers states that she cannot lift 25 pounds. [Id.]
Rogers states that she rises early because she has trouble sleeping, and is unable to function
for 30 to 45 minutes until her medication begins to work. [Id.] While Rogers’ medicines cause
fatigue, she is able to care for her hygiene, load the dishwasher, help with laundry, and change
the sheets on her bed. [Tr. at 38-41] Rogers contends that she sometimes needs help getting
-2 

dressed, such as when she wears jeans. [Tr. at 41] Rogers occasionally goes to the grocery
store and out for meals with her children. [Tr. at 39]
b.

Treatment and Evaluations

Rogers underwent an evaluation on May 8, 2013, with consultative examiner Christi
M. Hundley, Ph.D. [Tr. at 432-35] Dr. Hundley noted Rogers to be adequately groomed and
had an upright posture and normal gait. [Tr. at 432] Rogers’s speech was coherent and relaxed,
and she was alert, pleasant, and cooperative. [Id.] Her mood appeared at times to be sad,
neutral, and somewhat anxious. [Id.] She was tearful at times, and described her mood as
“confused.” [Id.] Rogers described herself as feeling “alone” and “desolate,” and stated that
she liked to be alone. [Tr. at 434] She described daily panic attacks, which will last 1 to 2
hours with her medication or 5 to 6 hours without it. [Tr. at 434] Dr. Hundley assigned Rogers
a Global Assessment of Functioning (“GAF”) score of 60. [Id.]

She found that Rogers’s

ability to understand and remember simple instructions, and her ability to maintain attention
and concentration, to be fair to good. [Tr. at 435] Her ability to interact appropriately in a
work setting was found to be fair to guarded, and her ability to handle the stresses of a work
environment was considered guarded, “given her presentation and description.” [Id.]
On May 30, 2013, Rogers underwent a physical examination performed by William E.
Waltrip, M.D., a consultative examiner. [Tr. at 437-43] Dr. Waltrip noted no history of injury
to claimant’s back, but reported back pain for at least ten years. [Tr. at 437] Rogers was
described as a “very pleasant” during the examination, and was “reasonably cooperative”
during range of motion testing. [Tr. at 438-39] She had a normal gait, had no muscle
tenderness or spasm found in her back, could walk heel to toe and tandem, could perform a
knee squat, and could walk on the tip of her toes and heels. [Tr. at 439]
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Dr. Waltrip assessed chronic back pain with radiculopathy in her right lower extremity.
[Tr. at 440] He also noted fibromyalgia by history, right hip pain, and discomfort from
varicose veins. [Id.] However, Dr. Waltrip found these impairments to only minimally limit
her ability to walk, stand or sit, and found that Rogers should be able to lift objects of at least
25 pounds without limitation. [Id.] He noted that Rogers had good strength of grip, with
ability to perform fine and gross manipulations, and found her range of motion to be without
limitation. [Id.]
State agency consultants reviewing Rogers’s file and concurred with the conclusions
of the examining consultants. Psychologists Barbara Lewis, Ph.D., and Ilze Sillers, Ph.D.,
reviewed claimant’s record for psychological limitations and found them to be non-severe.
[Tr. at 63-64 and 77-78] Dr. Lewis noted that Rogers was not fully credible for the degree of
psychological limitation alleged. [Tr. at 63] Dr. Sillers found that the intensity and severity
of the purported restrictions are not fully supported by the treatment records and clinical
observations. [Tr. at 78] As for physical limitations, state agency physician Donna Sadler,
M.D., found that Rogers can carry 20 pounds occasionally, 10 pounds frequently, and can sit
or stand with normal breaks for 6 hours in an 8-hour workday. [Tr. at 80] Dr. Sadler found
no manipulative limitations, but found that Rogers could never climb ropes, ladders, or
scaffolds. [Id.] Rogers was limited to occasionally climbing ramps or stairs, balancing,
stooping, crouching, crawling, and kneeling. [Id.]
On March 11, 2014, records from Rogers’s primary care physician suggest that the
claimant was seeking disability, stating that she was unable to work because of her mental
status. [Tr. at 569] On April 3, 2014, Steven Green, M.D., Roger’s primary care physician,
completed a residual functional capacity questionnaire on her behalf. [Tr. at 552-58] He noted
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first contact with Rogers in June of 2009, and that he has seen her for primary care about every
three months. [Tr. at 552] Dr. Green diagnosed fibromyalgia, neuropathy, depression, and
generalized anxiety disorder. [Id.] Her prognosis was listed as “poor,” and her symptoms
were listed as muscle pain, pain in back, tingling in arms and legs. [Id.] Pain was listed as
severe, with reduced range of motion, tenderness, trigger points, muscle weakness, impaired
sleep, and impaired appetite. [Tr. at 553] Dr. Green opined that Rogers’s depression and
anxiety affected her physical condition, that her emotional factors contribute to the severity of
her symptoms and functional limitations, that her pain is consistent with her medical diagnosis,
and that Rogers does not exaggerate her pain. [Tr. at 554] He noted that her pain is severe
enough to interfere with her attention and concentration “occasionally (1/3 of day)” and that
her ability to deal with the normal stresses of competitive employment is plagued by marked
limitations. [Id.]
Dr. Green asserted that Rogers’s impairment levels are expected to last at least twelve
months, and that she is limited to sitting, standing, and walking for 15 minutes without a
change in position. [Tr. at 555] He noted that she can sit, stand, and walk with normal breaks
for less than 2 hours in an eight hour day. [Id.] Dr. Green stated that Rogers must be able to
lie down at will to relieve pain, that she requires a job that allows shifting positions at will, but
that she need not elevate her legs at will or need a cane or assistive device during walking.
[Tr. at 556] He noted that she could lift 10 pounds and less than 10 pounds only infrequently,
and that she could never lift 20 pounds or greater. [Id.] Dr. Green also found limitations in
Rogers’s use of her right hand for any activity, and in use of her left hand for reaching
overhead. [Tr. at 557] He found that she could bend at the waist only “occasionally (1/3 of
day)”, that he impairments would affect her ability to work at a regular job on a daily basis,
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and that she will have a reasonable medical need to be absent from a full time work schedule
on a chronic basis. [Id.] Finally, Dr. Green opined that Rogers’s symptoms would require
her to be absent from work for “10 +” days per month. [Tr. at 558]
Rogers received epidural injections for pain treatment throughout 2012. [See Tr. at
334] It was specifically noted that Rogers was not seeking drugs. [Id.] Records from an
August 7, 2013, office visit with Katherine Ballard, M.D., report pain in Rogers’s lower back,
right leg and hip pain, and occasional tingling in her legs. [Tr. at 447] The pain was reported
as better with medication and heat and ice, and worse with standing for long periods of time.
[Id.] Lumbar spine range of motion during the examination was restricted with flexion and
extension, and tenderness was noted bilaterally as to paravertebral muscles. [Tr. at 448]
During a primary-care office visit on July 24, 2014, Rogers reported to A.P.R.N. Leann Brown
that she was “learning to deal with her anxiety with other methods besides taking Xanax.” [Tr.
at 591] On August 26, 2014, Miranda Boone, a Certified Psychologist performed an initial
assessment of Rogers and assigned her a GAF score of 25. [Tr. at 601] Finally, treatment
records from Ephraim McDowell Regional Medical Center on September 13, 2014 report
“worsening depression and suicidal ideation,” and complaints of lower left quadrant pain. [Tr.
at 606]
c.

The ALJ’s Decision

ALJ Bonnie Kittinger issued a decision on February 20, 2015, finding that Rogers has
not been under a disability since the date of her application. [Tr. at 20] The ALJ found that
Rogers suffers from the severe impairments of degenerative disc disease and fibromyalgia.
[Tr. at 13] The ALJ found Rogers’s mental impairments of depression and anxiety to be nonsevere because, “considered singly and in combination, [they] do not cause more than minimal
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limitations in [her] ability to perform basic mental work activities.” [Id.] The ALJ found no
“listing-level severity” with respect to whether Rogers’s impairments met or medically equaled
any listed impairments, and stated that “no acceptable medical source has mentioned findings
equivalent in severity to the criteria of any listed impairment, individually, or in combination.”
[Tr. at 15]
Specifically, the ALJ noted consideration of listings 1.02 and 1.04, relating to
dysfunctions of the joints and spine. Regarding listing 1.02, the ALJ found that no major
dysfunction of any joint resulting in an inability to ambulate effectively or an inability to
perform fine and gross motor movements effectively.

[Tr. at 15-16]

The ALJ found

insufficient record evidence regarding Roger’s back problems to meet listing 1.04, such as
nerve root compression, spinal arachnoiditis, or lumbar stenosis. [Tr. at 16]
ALJ Kittinger concluded that Rogers has the RFC to lift and carry twenty pounds
occasionally and ten pounds frequently. [Tr. at 16] The ALJ further found that Rogers can
sit, stand or walk for six hours in an eight-hour workday, so long as she has the opportunity to
alternate positions at 45 to 60 minute intervals. [Id.] Finally, the ALJ determined that Rogers
is able to climb ramps or stairs, balance, stoop, kneel, crouch, and crawl on an occasional basis;
but found that she cannot climb ladders, ropes or scaffolds. [Id.]
Based on the testimony of a vocational expert, the ALJ concluded that there are jobs
that exist in significant numbers in the national economy that the claimant can perform. [Tr.
at 19] Specifically, the ALJ noted representative occupations such as ticket taker/attendant,
laborer/hand packer, and inspector/tester/grader. [Tr. at 20]
II.

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Under the Act, a “disability” is defined as “the inability to engage in ‘substantial gainful
activity’ because of a medically determinable physical or mental impairment of at least one
year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)
(citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s Social Security disability determination is
made by an ALJ in accordance with “a five-step ‘sequential evaluation process.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. §
404.1520(a)(4)). If the claimant satisfies the first four steps of the process, the burden shifts
to the Commissioner with respect to the fifth step. See Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003).
A claimant must first demonstrate that she is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second, the
claimant must show that she suffers from a severe impairment or a combination of
impairments. 20 C.F.R. § 404.1520(c). Third, if the claimant is not engaged in substantial
gainful employment and has a severe impairment which is expected to last for at least twelve
months and which meets or equals a listed impairment, she will be considered disabled without
regard to age, education, and work experience. 20 C.F.R. § 404.1520(d). Fourth, if the
claimant has a severe impairment but the Commissioner cannot make a determination of the
disability based on medical evaluations and current work activity, the Commissioner will
review the claimant’s RFC and relevant past work to determine whether she can perform her
past work. If she can, she is not disabled. 20 C.F.R. § 404.1520(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent her from
doing past work, the Commissioner will consider her RFC, age, education, and past work
experience to determine whether she can perform other work. If she cannot perform other
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work, the Commissioner will find the claimant disabled. 20 C.F.R. § 404.1520(g). “The
Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312
F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th
Cir. 1999)).
A court reviewing a denial of Social Security benefits must only determine whether the
ALJ’s findings were supported by substantial evidence and whether the correct legal standards
were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial
evidence is such relevant evidence as reasonable minds might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007). The Commissioner’s findings are conclusive if they are supported
by substantial evidence. 42 U.S.C. § 405(g).
III.
Despite the deferential standard of review, “[a]n ALJ’s failure to follow agency rules
and regulations denotes a lack of substantial evidence, even where the conclusion of the ALJ
may be justified based upon the record.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)
(internal quotation marks omitted). Rogers alleges two failures of the ALJ to follow SSA rules
and regulations. First, she argues that the ALJ “fail[ed] to state good reasons for rejecting the
uncontradicted medical opinion from a treating source.” [Record No. 10-1 at 7] Second,
Rogers argues that the ALJ failed to consider her mental impairments “in assigning her
Residual Functional Capacity.” [Id. at 11]
a.

Treating Source Opinion

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“The Commissioner is required to provide ‘good reasons’ for discounting the weight
given to a treating-source opinion. These reasons must be supported by the evidence in the
case record, and must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting 20
C.F.R § 404.1527(c)(2); Soc. Sec. Rul. No. 96-2p). As the Sixth Circuit has explained, “[t]his
procedural requirement ‘ensures that the ALJ applies the treating physician rule and permits
meaningful review of the ALJ’s application of the rule.’” Id. (quoting Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)).
In Gayheart, the ALJ accorded “little weight” to the opinion of the claimant’s treating
physician (Dr. Onady). 710 F.3d at 376. The ALJ found that Dr. Onady’s opinions “‘are not
well-supported by any objective findings’ and are ‘inconsistent with other credible evidence.’”
Id. The ALJ did “discuss[] the frequency and nature of Dr. Onady’s treatment relationship
with Gayheart, as well as alleged internal inconsistencies between the doctor’s opinions and
portions of her reports.” Id. However, the Court noted that these factors are to be applied after
the ALJ determined that the treating-source opinion would not be given controlling weight.
Id. (citing 20 C.F.R. § 404.1527(c)(2)). What the ALJ did not do was to “identify the
substantial evidence that is purportedly inconsistent with Dr. Onady’s opinions.” Id. at 377.
The Court reasoned,
[t]he failure to provide “good reasons” for not giving Dr. Onady’s opinions
controlling weight hinders a meaningful review of whether the ALJ properly
applied the treating-physician rule that is at the heart of this regulation. See
Wilson, 378 F.3d at 544. For example, the conclusion that Dr. Onady’s opinions
“are not well-supported by any objective findings” is ambiguous. One cannot
determine whether the purported problem is that the opinions rely on findings
that are not objective (i.e., that are not the result of medically acceptable clinical
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and laboratory diagnostic techniques, see 20 C.F.R. § 404.1527(c)(2)), or that
the findings are sufficiently objective but do not support the content of the
opinions.
710 F.3d at 376-77. “Put simply, it is not enough to dismiss a treating physician’s opinion as
‘incompatible’ with other evidence of record; there must be some effort to identify the specific
discrepancies and to explain why it is the treating physician’s conclusion that gets the short
end of the stick.” Tarter v. Colvin, No. 5:14-CV-269-REW, 2015 WL 4972933, at *5 (E.D.
Ky. Aug. 18, 2015) (quoting Friend v. Comm’r of Soc. Sec., 375 F. App’x. 543, 552 (6th Cir.
2010).
As in Gayheart and Tarter, the ALJ in the present case provided some discussion of
Dr. Green’s treatment records. The ALJ found that,
[a]s for the opinion evidence, on April 7, 2014, Dr. Green summarized that the
claimant had fibromyalgia, neuropathy, depression and a generalized anxiety
disorder, with muscle pain, back pain, and tingling in her arms and legs. Dr.
Green then opined that the claimant could lift ten pounds only infrequently, and
could sit, stand, or walk for less than two hours per eight-hour workday, along
other limitations (Exhibit 15F). The undersigned gives this opinion only slight
weight as it is inconsistent with the objective medical evidence of record, the
claimant’s own subjective complaints to Dr. Green, as well as Dr. Green’s own
longitudinal treatment records and lack of objective findings on exam.
[Tr. at 18 (emphasis added)] This determination is deficient under the applicable regulation.
The ALJ simultaneously determined that the treating-source opinion for Dr. Green is
not subject to controlling weight, and decided what weight the opinion will be given. As in
Gayheart, this conflates the two determinations. As explained at 20 C.F.R. § 404.1527(2)(a),
the first step is to determine whether the ALJ’s decision is to be given controlling weight and,
if not, the second step is to determine what weight the opinion will be given.2 But the mere

2

The treating-source opinion is to be given controlling weight if the ALJ finds that the
“opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-11-

lack of a distinct discussion is not the fatal flaw. Rather, the fatal flaw is the lack of any
specific articulation of the alleged inconsistencies with other substantial evidence, or any
distinct discussion of the “medically acceptable clinical and laboratory diagnostic techniques”
that may or may not support Dr. Green’s opinion.
The ALJ provided some background summations of Dr. Green’s examination, but
provided little to no detail regarding how Dr. Green’s opinion was inconsistent with his
longitudinal history or the objective medical evidence. Instead, the ALJ provides a preceding
narrative that discusses Dr. Green’s treatment history together with that of other physicians,
and itself contains contradictory evidence. For example, the ALJ notes that Rogers “did not
visit her primary care physician during March 2013, the month she allege[s] she became
disabled.” [Tr. at 17] And that, at an April 2013 visit, during which Rogers complained of
“an earache and body aches, along with depression,” “the claimant had no abnormal physical
findings apart from those related to an episode of acute sinusitis.” [Id.] However, the ALJ
intermittently discusses Rogers’s trips to Dr. Ballard, who noted on August 7, 2013, that “the
claimant did have a slowed and stooped gait . . . and her lumbar range of motion was restricted
with flexion and extension.” [Id.] The same stooped gait and restricted lumbar motion was
reported by Dr. Wright on April 2, 2013. [Tr. at 18]
Rogers regularly stated that her pain was worse with “standing for long periods of
time.” [Tr. at 447; 572; 644] This is not inconsistent with Dr. Green’s opinion that Rogers

supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record[.]” 20 C.F.R. §
404.1527(2)(a). However, “[w]hen we do not give the treating source’s medical opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this
section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining
the weight to give the medical opinion.” Id.
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could stand or walk for less than two hours per eight hour workday. While consultative
examiner Dr. Waltrip alleged no restriction in range of motion, there is ambiguity in the record
regarding whether he actually performed complete range of motion testing, which the ALJ
acknowledges in the conclusion that “it does appear that he performed some range of motion
testing.” [Tr. at 17 (emphasis added)] And contrary to consultative examiner Dr. Waltrip’s
report, treating physician Dr. Ballard noted numerous times that Rogers’s lumbar range of
motion was restricted. [Tr. at 17-18, citing Exs. 10F, 14F, 17F]
Further, despite inconsistent reports regarding range of motion, the Sixth Circuit has
acknowledged that fibromyalgia patients typically “manifest normal muscle strength and
neurological reactions and have a full range of motion.” Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 244 (6th Cir. 2007). “The process of diagnosing fibromyalgia includes: (1) the
testing of a series of focal points for tenderness and (2) the ruling out of other possible
conditions through objective medical and clinical trials.” Id.
In short, because the ALJ did not sufficiently explain how Dr. Green’s opinion was
inconsistent with the weight of objective medical evidence, the ALJ’s weighing of the treating
physician’s opinion is not supported by substantial evidence. The ALJ’s explanation fails to
offer “good reasons” as required by 20 C.F.R. § 404.1527 (c)(2). As previously noted, “[t]he
failure to provide ‘good reasons’ for not giving [a treating-source] opinions controlling weight
hinders a meaningful review of whether the ALJ properly applied the treating-physician rule
that is at the heart of this regulation.” Gayheart, 710 F.3d at 377 (6th Cir. 2013) (citing Wilson,
378 F.3d at 544).
As in Tarter, “[t]he ALJ did not catalog or list what undergirded her phrasing.” 2015
WL 4972933 at *5. Instead, the ALJ gave a rather “neutral recitation of the history,” followed
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by a finding that tracks the language of the regulation. Id. “An ALJ cannot simply invoke the
criteria set forth in the regulations if doing so would not be ‘sufficiently specific’ to meet the
goals of the ‘good reason’ rule.” Id. (quoting Friend, 375 F. App’x at 551) (internal quotation
mark omitted). Regardless of whether Rogers is ultimately entitled to benefits, “this circuit
has made clear that [it] do[es] not hesitate to remand when the Commissioner has not provided
good reasons for the weight given to a treating physician’s opinion.” Gayheart, 710 F.3d at
380 (quoting Cole, 661 F.3d at 939 (internal quotation marks omitted)).
b.

RFC Calculation

The ALJ discusses Rogers’s alleged mental impairments and the evidence at step two,
where the ALJ concludes that Rogers’s mental impairments are not severe. Apart from two
paragraphs appearing to incorporate those findings by reference, the ALJ does not discuss the
mental impairments at any point in her RFC analysis.3

3

At the conclusion of the step two analysis, the ALJ indicates the following:
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The mental
residual functional capacity assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B of the adult
mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).
Therefore, the following residual functional capacity assessment reflects the
degree of limitation the undersigned has found in the “paragraph B” mental
function analysis.

[Tr. at 15] At the beginning of the step four analysis, the ALJ states:
In making this finding, the undersigned has considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence, based on the requirements
of 20 C.F.R. 404.1529 and SSRs 96-4p and 96-7p. The undersigned has also
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Failure to find an impairment to be “severe” is not reversible error when the ALJ
“considers all of a claimant’s impairments in the remaining steps of the disability
determination.” Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009) (citing
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)). Here,
however, it is not clear that Rogers’s mental impairments were actually considered in the
remaining steps of the analysis, as the Commissioner concedes. [Record No. 14 at 12
(“Ultimately, it is true that the ALJ opted not to incorporate mental work restrictions into the
RFC finding.”)]

Moreover, the ALJ’s finding that Rogers’s mental impairments are

“nonsevere,” is not supported by substantial evidence.
The severity determination at step two is a “de minimis hurdle” meant to “screen out
totally groundless claims.” Nejat, 359 F. App’x at 576 (quoting Rogers, 486 F.3d at 243 n. 2;
Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985)). “[I]f an
impairment has ‘more than a minimal effect’ on the claimant’s ability to do basic work
activities, the ALJ must treat it as “severe.” Id. at 576-77 (quoting Soc. Sec. Rul. 96–3p). The
ALJ found that Rogers’s mental impairments caused only mild limitations, and therefore were
not severe. However, the record evidence establishes a history of depression that has been
obviously debilitating at times, and is documented by Rogers’s treating physician, and credited
as contributing to her physical disability. [Tr. at 387, 554] For example, in May 2012, prior

considered opinion evidence in accordance with the requirements of 20 C.F.R.
404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.
[Tr. at 16] Taken together, these paragraphs seemingly assert that the ALJ conducted the
“more detailed” assessment of Rogers’s mental function capacity and included such in the RFC
findings. However, as discussed, there is no evidence that the ALJ imposed any limitations in
the RFC on account of Rogers’s mental limitations.
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to Rogers’s husband passing away, Rogers arrived at Dr. Green’s office with her husband, who
reported that she was suicidal. [Tr. at 387] Rogers’s was unwilling to get out of her car and
enter the clinic. [Id.] Instead, staff went and spoke to her at the car. [Id.] Rogers’s symptoms
were listed as anxiety, a history of depression was noted, and her appearance was listed as
chronically ill. [Tr. at 387-88] Rogers was given a note to be excused from work for 3 weeks.
[Tr. at 388]
On September 9, 2014, after Rogers’s husband passed away, she was seen by Miranda
Boone at Bluegrass Comprehensive Care. [Tr. at 600-601] Rogers was assigned a GAF score
of 25, and she was diagnosed with major depressive disorder. [Tr. at 601] Rogers also testified
that, following her husband’s death, her depression increased significantly. [Tr. at 48] While
the ALJ points to some conflicting testimony, including Rogers’s assertion in late September
2014 that her depression was improved in spending time with her daughter, there is more than
enough evidence to overcome the de minimus severity hurdle. Moreover, the ALJ overstates
the level of Rogers’s daily activity. The ALJ’s decision indicates that Rogers goes out for
meals with her children. [Tr. at 13, 15] However, during the hearing, Rogers testified that it
had been at least three to four weeks since she had last been to a restaurant. [Tr. at 39]
The ALJ’s finding of Rogers’s mental impairments as non-severe is reversible error
because it is not supported by substantial evidence and because the mental impairments were
not otherwise appropriately factored into Rogers’s RFC. The Commissioner contends that,
despite the failure to include the mental impairments in the RFC calculation, the error is
harmless because the occupations noted would not be affected by mild mental limitations.
However, there is ample evidence in the record, including opinion evidence and treatment
records not otherwise discussed by the ALJ, to suggest more than mild limitations. It is not
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clear that the full extent of Rogers’s mental limitations was considered in her RFC calculation,
as is required by regulation. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(3).
IV.
ALJ Kittinger failed to provide good reasons for discounting the opinion of claimant’s
treating physician. Further, the ALJ erred in finding claimant’s mental impairment nonsevere,
and did not incorporate Rogers’s mental impairments in calculating her RFC. Therefore,
substantial evidence does not support the ALJ’s conclusion that Rogers was not disabled from
March 22, 2013, through the date of the administrative hearing. Based on the foregoing
analysis, it is hereby
ORDERED as follows:
1.

Plaintiff Linda Rogers’s Motion for Summary Judgment [Record No. 10] is

GRANTED, in part, to the extent that she seeks a remand for further administrative
proceedings. The motion is DENIED, to the extent she seeks an award of benefits.
2.

Acting Commissioner Nancy A. Berryhill’s Motion for Summary Judgment

[Record No. 14] is DENIED.
3.

This decision of Administrative Law Judge Bonnie Kittinger is REMANDED

for further administrative proceedings consistent with this opinion and pursuant to sentence
four of 42 U.S.C. 405(g).
This 19th day of June, 2017.

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